date

13 July 1804 Procedure and Evidence
13 July 1804

Procedure and Evidence

Evil causes 4th order

5. Anti-merits

1(a) continued

In a quirk. By a decision foreign to the merits.

The point on which a decision, contrary /adverse/ to the merits of the cause is pronounced, may belong either to the substantive or to the adjective branch of the law. The latter only belong to the subject now in hand.

On a question belonging to procedure, by a decision on a point foreign /contrary/ to the merits I understand any decision by which the ultimate ends of procedure are either of the disfulfilled.

1. Fulfilment of the productions issued by the part in question of the substantive branch of the law: 2. avoidance to produce vexatious effects not predicted by the part in question of that substantive branch: - but more especially of the first of these two ends which is the main end and that one of the two which is most apt to be disfulfilled /exposed to be in this way disfulfilled/.

A decision of this sort will accordingly have taken place to the prejudice of the demandants side, as often as of punishment or satisfaction fail to be \have been\ applied and rights to be \have been\ conferred, the decision from which such failure results, being grounded on any other consideration than that /the -------/ such punishment, satisfaction, or rights were respectively not done, viz: according to the prescription of some article of substantive law: to the prejudice of the defendant's side, as often as punishment /a punishment demanded/ or the obligation of rendering the /a/ satisfaction demanded - or the obligation corresponding to the right demanded, has been imposed on any other ground than that of their being regularly due: viz. according to the prescription of some article of substantive law as before.
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  • Title: [14 July 1804 Procedure and Evidence]
    Description: 14 July 1804

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    Of the arrangements, in consequence /-----/ of which decisions adverse to the merits may come to be given on points /grounds/ foreign to the merits, some belong to the substantive branch of law, others to the adjective - the system of procedure. It is with the latter that we have any concern at present /The latter alone are in question here/.

    Decisions adverse to the merits on points /grounds/ (say sure(?)) of procedure foreign to the merits, admitt /require/ of a description somewhat different according as the side, to the prejudice of which they operate, is the demandants' or the defendants' side.

    A decision adverse to the demandants side, and at the same time adverse to the ----- on a ground foreign to the merits, supposes a law or rule of law established or assumed to be /considered as/ established, whereby it is ordained that a demandant for /for and in the course of/ some inaccuracy /transgression/, real or ------ , on his part, as on the part of some other person shall lose his cause - in other words that compliance with his demand shall be refused by the judges and this without any persuasion on the part of the judge, ascribing to the rich demandant a want of right: - that accordingly, if the suit be partly penal, punishment shall not be applied to the defendant, although, setting aside the regulation in question, it would or might have been regarded by the judge as due: if the suit be of a mixt kind, that neither punishment shall be applied to the defendant, nor satisfaction at his charge be administered to the demandant, although setting aside the regulation in question as before,
  • Title: [6 July 1804 Procedure and Evidence]
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    a As often as a point in question, foreign to the merits, is started and argued upon , the decision on that point, on which ever side it turns /to which ever side favourable/is adverse to some at least of the ends of justice/procedure/. If adverse to the plaintiff, the consequence is, according to the nature of the cause, non-application of punishment where due or non-collation (?) of rights where due or non-rendition of satisfaction where due: and to these ultimate evils respectively are added the incidental evils of vexation expense and delay - all non-natural, factitious, and unnecessary. If in favour of the plaintiff's side, the above mentioned ultimate evils do not indeed take place /are indeed avoided/ but the incidental evils take place exactly as in the other case.

    For ----- sake, grounds of decision foreign to the merits may be styled in one word technical. In English jurisprudence, technical is accordingly the word employed /affected(?)/ on occasions of the sort in question, and is found confirmed sometimes in the word grounds, in the phrasing technical grounds and technical reasons, sometimes as well to the word reasons.

    Technical grounds of decision are observable some in the substantive branch of the law, some in the adjective. Those alone which belong which belong to the adjective branch belong to the design of the present work: but the one can not be completely comprehended /understood/ without being confronted with the other.

    In neither instance /case/ will they be found in any instance to be the work /production/ of the legitimate legislator, acting as such: in every instance they will be found to be the fruit of the brain of the professional lawyer, acting in the station of a judge, and through /thru/ necessity, or by wanton usurpation, acting in an indirect way in the character of a legislator, in the track of jurisprudential law.
  • Title: [2 May 1805 Evidence Introd]
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    Evidence

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    Ch.7. Collateral Ultimate ends having respect to Quality: viz: of punishment, rights, or satisfaction

    A question here presents itself - The substantive law /The legislative power/, having prohibited an act having converted an act into an offence attach punishment to it, in a certain shape, and that it shall be punished in a certain way /punishment, of a certain kind shall be annexed to it/: the judicial power - the substantive law attaches punishment to it not in that way /shape/ /punishment not of that kind/ but in another: and so in regard to rights and satisfactions What is the relation of this case (it may be asked) to the preceding ones? By this means are the preceding ends, any of them, disfulfilled? - and if any, which of them. I answer yes: two at once. By every such judicial decision two infractions at once of the arrangements of substantive law are committed, yet /but/ two such infractions, that are in substance and effect the infraction of the law is less trouble[?] to the ends of procedure taken all together, than if either of them had been infringed alone: two infractions in form - in logical verbal form: but less than one in political effect - in pathological /real/ effect - in a word in substance. Two aberrations at once from the straight line of rectitude: two abberations, yet so connected and related to each other, that being in contrary directions the one of them operates as a correction to the other, and the result consists not of their sum but of their difference.

    Had not this puzzle /riddle/ been solved, what a source of perplexity? What a handle for evil? What a field for sophistry?