date

May 1805 Evidence Introd.
May 1805

Evidence

Introd.

ch. Evils causes - non demand

But revenge, malice? When a powerful check as that of the --- of vexation and expence in its present setting(?) is removed, will not a more frequent a much more frequent one than is ---- to be made of the hand of justice, as in the character of an instrument of revenge, or even unprovoked malice?

I answer thus -

1. So as the nature(?) act be in itself not preponderantly mischievous, which is as much as to say, so as the cause be just, no matter what the motive is the motive is: when mischief is produced by the nature of the motive, it is only where the act would in itself have been mischievous, without that motive, and whatever had been the motive.

2. What is it that at present makes the hand of justice so ----- in the character of an instrument of malice? It is the weight that it receives from /given to it by/ the factitious load of vexation and expence. Take off the load, it will be /----/ fit for nothing but to do justice.

3. If the thing demanded /claimed by the demandant/ be trifling why does not the defendant give it up at once? If he does, there ends the suit, there ends the faculty /possibility/ of seeking in it a gratification for malice.

4. If the defendant's reason for non-compliance with the demand be good, why does not the demandant give the matter up /desist/? If he does, there again ends the suit, and with it the faculty of seeking in it a gratification for malice.

5. If malice be found in conjunction with a bad cause with a groundless claim or defence, groundless in the point of law and in fact, and accompanied with temerity or consciousness of wrong in the brain of the suitor, here there is a case for satisfaction, for satisfaction involving or backed by punishment. Thus then malice receives a check: but in what character? Not merely as motive, but as malice having had injury aggravated with mala fide or temerity, for its fruit.

6. If unaccompanied with either mala fide or even temerity unaccompanied at the same time with all factitious that is /which is as much as/ to an all considerable factitious vexation and expence, such should still abound in a degree before unknown where is the great evil? Every fresh suit instituted or defended is a fresh demonstration of the care of the sovereign for the people, of the confidence of the people in the administration of justice. In that state of things unless a man's cause be just what can he hope to gain from it?
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    It is evident that when the suit is thus ill-grounded, whether its groundlessness be or not present to the demandant's mind - in other words whether it be or not on his part a mala fide suit, makes, with reference to the vexation and expence inflicted by it on the defendant, little or no difference. The mischief of the first order is therefore not encreased, not affected, by the absence or presence of this mala fides - of this criminal consciousness, of mala fides. Nor to the mischief of the 2d order: the danger and the alarm liable to issue from that source. That suits accompanied with this circumstance should exist in multitudes is a state of things, which it will be seen can not take place without some flagrant and radical defect in the texture of the law to wit /more especially if not exclusively/ in the system of procedure. In the constitution /-----/ of this system there is a somewhat or other /exists by the supposition --- --------/ which affords to the wrongdoer an assurance of success, even to him who in his own mind is conscious of being so. This is as much as to say which affords to him who has an interest in so doing a means, in appearance at least sufficiently assured, of contravening for his own advantage - of contravening in an indefinite number of instances one or other of the ends /the principal ends/ of justice: the demandant, where the mala fides is on his side, the defendant, where it is /exists/ on the side and part of the defendant.
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    With the ends of procedure, coincide in the main, but /though/ not compleatly, the ends of judicature: in point of extent the latter expression wants something, though not much, of being equal to the former - of the mischief produced /that will be seen/ by a [...?] bad system of procedure, it is but a part that is produced by judicature, by bad judicature, by misdecision. Of the mischief producible by misdecision no small part it will be seen is equally producible without misdecision, without decision, for want of decision: on the part of the Judge, by non-decision; on the part of him who has been or should have been demandant, by desistment, by non-demand. To him who has a just cause of demand the worst thing /event/ indeed that can happen is to be subjected to the vexation and expense attached to the station of demandant, and after all not receive the service /obtain the fruit of it/ that is his due. But to find the doors of justice shut against him, and thus to be deprived of his right whatsoever it may be, is by no means a matter of indifference. In the lot of vexation and expense attached to the suit lies /consists/ the difference, and the only difference.

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    The ends of justice - the legitimate ends of procedure being taken as the standard of reference, the advantages of any belonging to the system in question - the natural system will consist in its several points of subservience /subservience and degrees of its conduciveness/ with relation to More respective ends.

    The conduciveness of a system of procedure with reference to the ends of justice will show itself in two distinguishable practical results:- 1. the causing the ends of justice to be fulfilled with a superior degree of frequency - and in so far in the accomplishment /fulfillment/ of the end in question admitts of degrees of perfection - in a suprior degree of perfection - in the instance of such suits as come eventually to be instituted: 2. in preventing the institution of such[?], concerning which it were to be wished that they were not be as are so circumstanced that it would be for the advantage of the community that they were not /should not/ instituted. These last will be found comprized /comprehendible/ under two denomination:- 1. Malâ fide causes: i.e. causes which on the part of either demandant or defendant are accompanied with the consciousness of being in the wrong: 2. Causes accompanied with temerity: causes in which either the demand or the defence, not being chargeable with malâ fides is chargeable with temerity or rashness.