date

9 July 1804 Procedure or evidence
9 July 1804

Procedure or evidence

Evils causes

Ch. 2d Order

'. 2. non-justicability

Note (a)

By justicable I understand serviceable to law. A man is justicable or not, according to the means which in his instance the law possesses of causing him to render any such service as is or may be legally demanded at his hands: the service of undergoing punishment, rendering satisfaction, or submitting to non-penal obligations corresponding to rights, thereby conferred on the adverse party - according as the case is purely penal, mixt, or purely non-penal.

A man's general justicability is constituted by the aggregate of the means of all kinds which the law possesses of causing him to render all sorts of services in the event of their being legally demanded at his hands.

In this sense a man who is not responsible in respect either of person or transferable property may be so in respect of his reputation or condition in life.

When a man is spoken of as being specially or relatively justicable, it means that he is on some particular occasion justicable with relation to the particular service which in that occasion happens to be /is considered as being/ demanded at his hands.

Where relative justicability is wanting - is not present immediately and of itself - the deficiency may often in an immediate way be supplied by general justicability. Thus where the demand attaches upon a man's property, and no property belonging to him can be come at by any direct operation of the law, yet if he happens to be justicable in respect of his person, i.e. if his person be taken into the hands of the ministers of justice, they by the physical power thus acquired over his person may cause him to bring his property within their reach. So
Similar Items
  • Title: [9 July 1804 Procedure or evidence]
    Description: 9 July 1804

    Procedure or evidence

    Evils causes

    Ch. 2d Order

    '. 2. non-justicability

    Note (a) continued

    So again where neither his property nor his person are at the time in question within the reach of the law, so that /in so much/ that he is not justicable in an immediate or direct way in either respect, it may happen to him to be made justicable in either or both respects in consequence /by virtue of/ his justicablity in respect of reputation or condition in life: - as where his future expectations depend on his being considered for the purpose of succession to property as the son or other relative of a certain person: or upon his being capable of holding a certain office. It was in this way among others that Christians of all denominations in most Christian countries were at one time, justicable, and in so far subject with reference to the Pope of Rome.

    Justicability may again be distinguished into justicability in point of fact, and justicability in point of right. In French law /jurisprudence/, a man over whom such or such a judge has a right to exercise power of judicature in such or such a case, is said to be his justicable: and thus whether in point of fact the individual be or be not justicable with reference to the judge - i.e. whether the judge has or has not in his hands the means of compelling the individual to render the service demanded, or liable to be demanded at his hands. Justicability in point of fact, is, it is manifest, the only one of the two modifications of justicability that is in question here.
  • Title: [21 May 1805 Evidence Introd]
    Description: 21 May 1805

    Evidence

    Introd

    Ch. Preparatory Explanat.

    ''. Division of suits

    The demand for this distinction in classification /arrangement/ and nomenclature was produced by several differences of prime importance in /with a view to/ practice.

    I. From the differences respecting burthensomeness of the obligation result correspondent differences in respect /respecting/ the coerciveness[?] and thence the burthensomeness of the operations necessary to secure forthcomingness and eventual justiciability of the defendant. In general the burthensomeness of these operations will be greater in a purely penal suit or a mixt suit than in a purely non-penal suit.

    II. From the differences respecting the interest of suing[?] by which an individual having it in his power to institute and carry through a suit having for its object the demanding at the hands of the Judge the rendering of the service rendered by the imposing upon the defendant the obligation correspondent /appropriate/ to the nature of the suit, result the necessity or non necessity of extraordinary measures to be taken by the legislator for serving in all cases the institution and the [...?] of the correspondent suit.

    1. If there be no /the nature of the case be such that there is no/ individual who by any interest, any naturally[?] [...?] interest peculiar to himself is urged /[...?]/ /instigated/ to institute the suit, and thence to subject himself to the vexation and expense attached to the [...?] of it, in such case either the legislator in default of such natural interest, must create and afford to some individual a factitious interest adequate to the production of such effect, or the correspondent branch of substantive law will go unfulfilled.

    In this case are all these suits which are of a /belong to the/ purely penal nature /class/: suits which have for their object the cutting down /causing/ punishment to fall upon the defendant on the score of an offence of the class composed of the offences stiled[?] Public Offences, being the last of the four[?] classes into[?] /under/ which offences of all descriptions have been arranged in a book already under the public eyes+

    + Dum.[?]
  • Title: [16 June 1804 Procedure and Evidence]
    Description: 16 June 1804

    Procedure and Evidence

    Evils - Causes

    Ch. Undue Decis. Causes Factitious

    The catalogue /treasury/ /treasures/ of abuse and absurdity is /are/ not yet exhausted. Wheresoever, by giving ground and birth in any way to a decision to the prejudice of either /any/ party, on grounds foreign to the merits on grounds which may be capable of being fabricated for the purpose, it is in the power of any person - Judge, subordinate minister of justice or agent of that same party or the adverse party to cause that /occasion the/ party to lose his cause, is in that persons hands. If at the same time that the existence /possession/ of this power is understood to be possessed by him who thus possesses it, upon the ballance of enacting /instigating/ and restraining motives he be urged by what presents itself to his view as a preponderant mass of interest[?], he will act accordingly, and law and justice will thus be sure to be defeated by his means. If the case be a purely penal one, and the party made in this way to lose his cause the plaintiff, whosoever by any act of his has it in his power to produce /give birth to/ this effect, possesses in effect the /a/ power of pardoning, a power of pardoning, operating /stretching/ in extent to the extent of the mass of causes that is to the classes of delinquency to which the influence of such his agency in this way extends. If the instrument by which the accusation is notified be called in all cases an indictment, and it be in the power of any person, by the insertion or the omission of this or that word in the indictment to produce a decision in favour of the defendant, in consequence of what the defendant, whatever have been his crime goes free, a power of pardon is in such case possessed by that person, a power as simple as any power of pardon that was ever possessed by any monarchical or other sovereign. If to the act of making of such interpolations or omissions no punishment whatsoever /in any shape/ stands annexed such virtual /secret/ power will not be in any respect to be distinguished from an avowed and openly established power, except by the facility, the consequent silence with which it may be exercised, the facility with which it may be abused to the most pernicious purposes