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6 July 1804
Procedure & Evidence
Note to p.7
Evils causes
4th Order
4. Uncertainty
Considering men /a man/ in the character of person capable of becoming offenders, the non-notoriety and uncertainty on the part of the law is productive of another evil, which requires to be distinguished from that which is a present on the carpet. It is the cause of a man's transgressing the /a/ law by which an obligation is imposed upon him, or not availing himself of the service proffered to him, by a law which has invested him /by which he stands invested/ with a right. This evil, though as serious and prolific an one as any, comes not within the design of the present work: since it does not run counter to - it does not obstruct the attainment of - any one of the ends of procedure. It does not disfulfill any of the predictions delivered by any branch /in any part/ of the substantive part of the law: it does not cause punishment not to be applied where due, or to be applied where not due: satisfaction not to be rendered where due, or to be rendered where not due: rights of any other kind /understand consummate rights/ not to be conferred where due, or to be conferred where not due.
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Title: [13 July 1804 Procedure and Evidence]Description: 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: [23 June 1804 Procedure & Evidence]Description: 23 June 1804 Procedure & Evidence D 20 (4) Ends Ch.1. '.4. Particular Collateral Ultimate Moreover, even where punishment, under the name of punishment, is out of the question, the defendant in every cause is exposed in like manner to suffer, due or not due, some one or other of an infinite variety of burthensome obligations. be the right - the right demanded at the hands of the Judge by the plaintiff - what it may, the collation of it, (it has already been seen) can not by any possibility be performed without the creation of a correspondent set of burthensome obligations. When a right is considered as conferred the right is all that is commonly spoken of /in common speech nothing is spoken of but the right/, but no sooner is the right created than the correspondent set of obligations are imposed. In the case where, according to the appointment made /arrangement made //taken// by the legislator, the right is due, the evil produced by the obligations, is or at least ought to be, in the judgment of the legislator outweighed by the good flowing immediately from the right. In the opposite case, the evil, in /according to/ the same judgment either stands single, or at any rate outweights /is preponderant over/ the good. Second particular end, branch of the collateral general end of procedure - avoiding to impose obligations where undue, viz: the obligations by the imposition of which undue rights would be conferred: avoiding to confer rights where undue, in as much as by such collation undue obligations would be imposed.
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Title: [12 June 1804 Procedure 11]Description: 12 June 1804 Procedure 11 (5) Ends Ch.1 3. Particular Main Ends In vain would rights of either kind - and in particular consummated rights be created and conferred by the legislator - in vain would the correspondent sort of offences be created - the correspondent obligations imposed - if to the violation of these rights - to the commission of these offences - to the branch of these obligations - punishment, in some shape or other, were not annexed. Punishment taken by itself as an evil: but considered as necessary to the warding off some greater evil, it operates, to the amount of the differences, as a good. But in so far as it is a good, the absence of it - the non-application of it - is an evil /a mischief - an inconvenience/. Wheresoever an offence has been committed, punishment, in some shape of other, exception made for these cases in which pardon is proper /the particular cases which call for pardon +/ may be stated as .said to be/ these: the non-application of it an inconvenience /an evil a mischief/. Thus in subordination to the main general end of procedure /the system of procedure, we have on //a// particular end/ - Application of punishment where due application of evil under the name of punishment in a case where no punishment is due is besides the immediate evil attained with a deplorable train of evil consequences. " Hence comes another particular end subordinate to the main (a) general end of procedure: avoiding to apply punishment where not due /undue/. + Introd. Ch.│ │ p.│ │ Dum.[?] " Dum.[?] (a) or rather collateral?
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