date

5 July 1804 Procedure & Evidence
5 July 1804

Procedure & Evidence

Evils

2d order

'.1. Injury to defd.

II. Independent Evils of the 2d Class - Injustice to the prejudice of the Defendant's side.

Branches -

1. Application of punishment where undue

2. Collation of rights (thence imposition of obligations) where undue

3. ---ddition of satisfaction (thence again imposition of correspondent obligation) where undue

Immediate causes or cause /cause or causes/ of the 1st order

1. Wrongful decision alone

N.B. Of From non-decision, as well as from wrongful decision, evils /evil consequences/ accruing to the defendant's side as well as to the defendant's /plaintiff's/ . But these evils /consequences/ are not the ultimate evils - the evils produced by the decision of the cause but only the individual ones /evils/ of vexation and expence.
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  • Title: [4 July 1804 Procedure or evidence]
    Description: 4 July 1804

    Procedure or evidence

    Evils

    Ch.1 2d Order

    '.i. Prejudice to plff. Independent

    1 Independent evils of the first class - Injustice to the prejudice of the plaintiffs /demandant's/ side -----ion of justice in its several branches non-fulfilment of the main end of judicial procedure in its /these/ several branches, viz: non-application of punishment when due - non-collation of rights when due - non-administration /rendition[?]/ of satisfaction where due. Immediate cause or causes of the 1st order. Cause 1. - Wrongful decision to the prejudice of the plaintiff's side that the effects in question have for their cause the operation there denominated, is a proposition /truth/ assented to as soon as announced, or rather before it is announced. Instead of doubling its efficiency the natural movement of the mind on this occasion is rather to ask - to what other cause - meaning immediate cause - can the effect ever be ----able? The answer to this question will be brought to view /appear/ immediately.

    I. Natural causes

    1. Wrongful decision to the prejudice of the plaintiff's /demandant's/ side: viz: where the causes of the /such/ wrongfulness are themselves natural. See infra causes of the 3d order - Causes of wrongful decision.

    2. Non-justiciability of the deft. viz: with reference to the nature of the demand - of the service demanded or that would have been demanded at the hands of the judge: - of the defendant - or of him who were it not for the known or supposed impracticability of extracting from him the service in demand (for example the ---ial of the debr. dare) or an equivalent, would have been made defendant. (a)

    (a) Note (a) in a separate page
  • 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.
  • Title: [4 July 1804 Procedure & Evidence]
    Description: 4 July 1804

    Procedure & Evidence

    Evils

    2d order

    '.1. Injury to plff

    2 Immediate causes the 2d - non-decision

    2. Second cause /cause the second/ of the above effects - non-decision

    of non-decision suppose it to last for ever, the effect with regard to the production of the evil /evils/ opposite to the main end of procedure in /----/ its several branches is exactly the same as wrongful decision to the prejudice of the plff's side would be: for /since/, on this supposition, in the cause in question, if a penal one the time would never arrive when the punishment due would be applied; - in a non-penal one, the time would never arrive, when the right due would be conferred; in a cause of a mixt nature the time would never arrive when the satisfaction due would be administered /rendered/ any more than when the ulterior punishment due would be applied.

    On the other supposition, --- that this species of negative misconduct on the part of the judge is but temporary, it is the same thing with /the evil in other words/ delay in the species of cases negatively in question. But delay in rendering to the plaintiff that justice which is due, is injustice while it lasts. For the causes of delay, see article delay.