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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.
Similar Items
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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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Title: [28 June 1804 Procedure D 21]Description: 28 June 1804 Procedure D 21 (5) ends Ch.1. '.4. Particular Collateral Ultimate Lastly, satisfaction how pleasant so ever to receive, is a sort of a thing which naturally and most commonly /very frequently/, it is in a still greater degree unpleasant to be made to give. In the class of cases - a very numerous one in which satisfaction and punishment are administered at the same time for the same cause, and demanded, is at least capable of being demanded, by the same suit, the same danger still [...?] the defendant and from the same cause, whether the burthensome obligation thus might be imposed on him be or be not due. Third and last particular end - branch of the collateral end of procedure - avoiding to administer satisfaction where undue - viz: as before inasmuch as by such administration undue obligations would be imposed.
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Title: [24 June 1804 Procedure Ends]Description: 24 June 1804 Procedure Ends Ch. '.6. Expression uniform Compleated by the above process, the evils and /or/ inconveniences corresponding respectively to the list of particular several ends, will stand thus 1. Non-application of punishment where due Synonym [...?] 2. Non-Collation of rights where due 3. Non-reddition of satisfaction where due 4. Application of punishment, where not due 5. Collation of rights where not due: thence imposition of the correspondent burthensome obligations 6. Addition of satisfaction where not due: thence [...?] imposition of the corresponding burthensome obligations 7. Production of unnecessary vexation 8 - Expence 9. - Delay 10. - Precipitation 11 - Intricacy 12.- Mendacity and untrustworthiness in other shapes on the part of the evidence. And to these twelve distinguishable evils correspond so many equally distinguishable ends, consisting sverally in the avoidance if these respective evils. In the existing state of the language - of the English language at least, (a) the three main evils have /possess/ an expression belonging /applicable/ to them in common - viz: failure of justice. To The three corresponding collateral evils belongs no such equally appropriate expression - No one of them, indeed /perhaps //it is true// but may understood to receive without impropriety the appellation of injustice: but this appellation is not more /if applicable to them at all, is not/ strictly applicable to them, that is is to the three main evils comprehendible as above under the appellation /denomination/ of failure of justice. Note (a) (a) In /By/ the expression of failure of justice the effect alone is indicated /brought to view/, without any reference made to any person whose act is considered as the cause. In French books, we hear not so frequently of failure of justice, dedaut[?] or manquemont[?] de justice as of denial of justice - deni de justice: a phrase by which the Judge is pointed to, as the person whose act is the sole immediate cause of the obnoxious effect. But in English pprocedure failure of justice, it will be seen, for an instance in which failure of justice is the fault of the Judge as such, it is in some dozen score or hundreds of instances the fault of the legislator: the possibility of so much as applying for justice under the head of expence, not to speak of vexation and delay imposed upon it, a state of things comparatively rare.
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