date

16 June 1804 Procedure and Evidence
16 June 1804

Procedure and Evidence

Evils - Causes

Ch. Undue Decis n. Causes Factitious

Thus stands the case where the authority by which the purpose of the law is defeated is the same as that from whence it issued. It is much worse /the iniquity receives again a prodigious aggravation/ where the provision of substantive law being the work of the legislator - the legitimate legislator the decision - and at length the rule of law by which it is thus defeated, is the work of him who in duty ought to be but the agent the servant of the legislator. I mean the Judge.

In every such decision two enormities are involved - 1. a /the/ breach of constitutional subordination /obedience/: the work of the /a/ superior authority /magistrate/ overthrown by the inferior /his own subordinate/: the law of the genuine legitimate legislator repealed /over-ruled/ in effect by a spurious one - by a magistrate who not only has not the legal /lawful/ power to make that law but has not the power so much as to make any law: who pretends himself to no more than the jus dicere - who disclaims and professes to regard with abhorrence the jus dare: an act of usurpation committed by one whose business it is to repress and punish it in others whose hourly /daily/ function and prime glory is obedience.

2. And in what sort of law does the authority thus usurped display itself? - in the acknowledged quintessence of iniquity - an ex post facto law. The decision by which the punishment thus unjustly inflicted is produced is a decision the pronouncing of which he /a man/ had no means of foreseeing: a decision produced itself by a conception which not only was /had/ never been communicated in time to the party whose fate depended upon it - in time for him to regulate his own conduct accordingly - but had not till that moment presented itself to any human breast: a punishment without cause - and fruitful as it is in evil effects, productive of no good effect other than what might as effectively have been produced without it.
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    Objection - that those rules are made for the merits for the ends of justice

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    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.

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    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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