date

15 June 1804 Procedure Evils
15 June 1804

Procedure

Evils - Causes

Ch. Undue Decis. Caus. Factit.

Objection - that those rules are made for the merits for the ends of justice

Answer. No [...?] any further than as it appears that the ends were actually violated in consequence

Rule that it should be asked Def t whether he has any witnesses to produce and that mention should be made of his answer. Thus if a pain of nullity is bad. Ex.gr. if the question was put though not asked: or if it was known that the Def t had no witnesses. He should state that he had, and that not to overthrow the judgment, but to let in the proof.

Where this appointment (as in the case supposed) is the work of the legislator himself - even in this case the incongruity is very great /flagrant/ - the consequences highly pernicious. The predictions thus given by the substantive law - are thus disfulfilled by the part of the adjective law in question without warning and without cause - the influence of it is thus far weakened - the purpose of it defeated. If there be any individual interested in the fulfilment of these purposes - of these predictions - /to that individual/ the faith of the legislator - the public faith is broken to that individual.

Note

True it is that in the case supposed, the authority from which the substantive law emanes and the authority from whence the clause /rule/ in question of the adjective system emanes, are the same: the case therefore it may be said is but an exception - contradiction there is none. But the part of the law in which the punishment in the event of the transgression in question is denounced denounced absolutely and unconditionally - and the part by which that punishment is made liable to be defeated by the non performance of the condition in question, are not the same: in the substantive branch of the law there is no reference made to the adjective branch as being so constituted as in this way to cut out the effect and substance of it. What men understand - understand universally however erroneously - of the /this appendicious/ system of procedure, is - that it is a system by which the denuntiations made and predictions of all kinds delivered by the substantive /principal/ /main/ branch of the law are carried into effect: taking this for granted /reposing on this supposition/, no man who is not a lawyer ever thinks of looking into the law of procedure. To understand that branch of the law is the business of men of law - and to them he leaves it.
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