059-236.xml

Title: [27 June 1804 Procedure Evils]

Description: 27 June 1804

Procedure

Evils causes

Ch.1 Generalia

'3. Remediable and irremediable

Inserendum here? in procedure? in evidence?

The natural causes of failure of justice /of the evils prejudicial to justice/, and of wrong-decision which if to the prejudice of the defendant may be called injustice, though in many cases unblamable /blameless/ injustice - and the collateral inconveniences incident to judicial procedure - may again be distinguished into irremediable in toto, remediable in toto, and remediable in part. The catalogue of those which are irremediable in toto will not be so extensive or multifarious as might have been imagined: since of this or that event that which can not by any human can or shall or can, or at least by any can and shall on the part of the legislator be prevented, it is seldom that the consequences prejudicial to justice may not in some way or other be alleviated.

Thus on the part of a person who has received a recent injury, death and in certain cases insanity can not by any skill on the part of the legislator, whatsoever may be to be done by the physician, be prevented. But the derivative mischief - the mischief to the family relatives of the deceased may be done away in part or even altogether, and by that means the sum total of mischief in a very considerable degree reduced - by so obvious an expedient /arrangement/ as that of continuing for the benefit of the surviving relations whatever claim /title/ to satisfaction has been /may have been/ erected by the law on that ground.

059-238.xml

Title: [27 June 1804 Procedure Evils]

Description: 27 June 1804

Procedure

Evils causes

Ch.1 Generalia

'3. Remediable and irremediable

The obstacles opposed to justice by the purely physical causes of place and time can no more be annihilated than those opposed by the physical causes of death and mental derangement. But though in these cases any more than in the foregoing the inconveniences incident to judicial procedure can not be prevented and removed in toto, yet in these cases too in some instances the amount of the inconveniences may in a more or less considerable degree be reduced. In respect of the intercourse between man and man distance in point of /respect of/ time has for its most obvious and intractable cause, ---- in respect of place. But though distance between any two points in the earth's surface can not be lessened by any human ingenuity /industry/, yet in different situations /under different circumstances/, by the exertions of natural industry, more or less effectually seconded or not seconded obstructed or assisted by the exertions of the Legislator, the means of communication have been facilitated, communication rendered more speedy, and the ------ /force/ of obstacles opposed to justice by place and time together have /has/ in this way be reduced.

If under the auspices of English law, the better --- most happy institution which is of so much use to trade is as yet /has ----/ of so little use to justice, it is because, in England as else where, a m--- /man/ carries on trade for his own benefit, and administers justice, or what he calls justice for other people; it is because the profits of those traders who carry on the business of trade are encreased by everything that lessens the expence, and of those lawyers who carry on the business of justice, by many things that encrease the expence.

059-256.xml

Title: [5 July 1804 Procedure & Evidence]

Description: 5 July 1804

Procedure & Evidence

Evils

3d order

'.1 1. Wrongful decision to plff

Evils of the 2d Order (= Cause of the 1st Order)

1. Wrongful decision - viz: on the part of the judge to the prejudice of the plff.

Immediate causes of this evil: being causes of the 2d order with reference to ultimate injustice in any of its six several branches -

I. On the part of the judge.

1. I. Natural causes

Deficiency in respect of

1. Want of intelligence - including

1. Knowledge of appropriate matter of fact, in the character of precognition.

2. Real lack of judgement or say discernment

3. Promptitude of conception and judgement

4. Faculty of repression

2. Want of probity: 1. impartiality 2. assiduity of bodily attendance 3. Attention - labour of mind.

3. Want of adequate power ab extrà - i.e. from the legislator, or rather from the nature of things. (a)

 For the remainder to the causes of wrongful decision so far as they are referable to the formal qualifications of the judge, see the Book on the Judicial Establishment.

II. On the part of the evidence -

4. Unforthcomingness of a part or of the whole of the existing mass of requisite evidence

5. Fallaciousness of /in/ any part of the mass of evidence forthcoming and exhibited.

II. Factitious causes negative.

1 Non-notoriety of the law bearing upon the case. viz: of that part of the law by which if known a different decision would have been seen to be prescribed.

2 Uncertainty of the law - (The terms of the law (viz: to the judge) but the sense to be put upon them uncertain.

(a) Note

These causes may be deemed natural, within the limits of the differences produced by the idiosyncratic character of the individual: in each individual instance: factitious in so far as it may be within the powers of law /the legislator/ to provide an adequate remedy to those natural causes, by arrangements relative to the ----, mode of r-----ation, and mode of procedure /operation/ on the part of the judge.