date

6 July 1804 Procedure & Evidence
6 July 1804

Procedure & Evidence

Evils causes

4th Order

5. Non-demand

5. Non-demand

I. Natural causes

1. [In causes purely penal] || want of will on the part of every man who should appear in the character of a demandant (or him called /stiled/ prosecutor/), ---- for want of adequate interest

+ and in the first place, original natural interest. (a)

|| --- chp IV. Introd. & Dum.

+ See untrustworthiness causes

(a) In all cases purely penal, there is no injury to one individual man than to another, nor consequently any advantage under the name of satisfaction to be obtained by -- acting in the character of a prosecutor.

2. In cases non-penal, in which rights are demanded (a consummate right on the ground of the correspondent inveterate right already justified in --- of a correspondent ----- of substantive law). The value of the right constitutes the interest - the motive - by which a man is engaged /urged/ to appear in the character of a demandant

3. In causes of a compound /mixt/ nature, which an injury having been sustained by an individual, satisfaction viz: for such injury, is demanded as well as punishment - the value of the service by the rendering of which the satisfaction is administered (for example the value of the sum of money given by way /in the name/ of satisfaction) constitutes the interest.

2. In causes of this mixt nature, if satisfaction be rendered without legal demand, there remains the suit /--/ by which the ---- of instituted punishment alone would be inflicted: but --- in such circumstances the institution of such a suit would be an act without a motive - an effect without a cause, purely penal a suit[?] If in such circumstances a suit demanding /calling for/ punishment without satisfaction under the name of satisfaction, be ever instituted, it is because no pecuniary or other satisfaction being provided the vindictive satisfaction produced by the consciousness of giving birth to the application of punishment, is sufficient without any other.
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  • Title: [7 July 1804 Procedure & Evidence]
    Description: 7 July 1804

    Procedure & Evidence

    Evils causes

    Ch. 4th Order

    ' 6. Desistment

    7. Desistment

    I. Natural causes.

    1. Supervention of any of the above mentioned natural causes of non-demand at a point of time posterior to the commencement /exhibition/ of the demand. Example. In a case of a mixt nature, in which by a suit of a mixt nature, satisfaction and /----/ punishment are included in the same demand, an offer of satisfaction alone is made and accepted - the demandant ceases to act in that character, and the consequence is - non-application of punishment where due.

    II. Factitious causes negative examples

    In cases of a mixt nature, as above omission (on the part of the substantive branch of the law) to create /----/ /attribute/ any right to satisfaction to the party injured.

    Note

    In this case in default of a natural interest in prosecuting for satisfaction alone the hope of securing satisfaction by a compromise as above, may operate in the character of a factitious interest, so as /in such a manner/ as to engage a man to prosecute i.e. by a demand for punishment to be inflicted on the defendant: whereupon if after the demand commenced /instituted/, he secures such satisfaction as he is content to take, desistment from the demand takes place of course.
  • Title: [7 July 1804 Procedure & Evidence]
    Description: 7 July 1804

    Procedure & Evidence

    Evils causes

    5. Non-demand

    II. Factitious causes negative.

    1. Want of the arrangements necessary for supplying the natural want of interest. Viz: original interest: a natural interest by an adequate factitious one

    N.B. In cases purely penal (offences against the person alone) no individual has any natural interest to prosecute: unless it be the casual one of private enmity, public spirit &c as above.

    In mixt cases the natural interest applies no further than the demand for satisfaction: for in respect of the demand of punishment there is no rational interest, except casual ones as above.

    2. Want of arrangements necessary for overpowering /surmounting/ the natural counter-interests created by the considerations of vexation and expence attached to the function of demandant /a prosecutor/

    3. Want of the arrangements necessary for supplying the natural want of knowledge in relation to the law: viz: by homologation, digestion, and promulgation, as above.

    4. Want of the arrangements necessary for affording a uniformly adequate supply to the natural want of power to the ----- resulting form the inability to defray the natural expence.

    5. Want of an all-comprehensive and effectual /efficient/ system of arrangements for securing, in every /each/ instance as far as natural obstacles permitt, the forthcomingness of evidence in every instance.

    6. Want of an all-comprehensive and efficient system of arrangements for securing, in each instance according to the nature of the demand i.e. the service demanded, the relative justiciability of the defendant, according to the nature of the demand i.e. the service demanded.
  • Title: [May 1805 Evidence Introd.]
    Description: 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?