date

2 July 1804 Procedure and Evidence
2 July 1804

Procedure and Evidence

Note continued

Ends

Ch.│ │ Vexation

'.1. Note

To /Under/ the same head of vexation might also have been referred included the evils produced by rightful decision, on whichever side, that of the Plff or that of the defendant the burthen falls. Evil, on one side or other, and [...?], for a certain period on both sides, evil in some shape and degree or other, is the result as of almost every exercise of the powers of government, so in particular of every exercise, without any exceptions worth dwelling upon of the powers of judicature. of the existence of The evil produced in this way the existence is no less incontestable in the case where the decision to a Mans prejudice is due, than where it is undue. Nor so far as this single individual alone is considered, will it be easy to say, in which of the two cases the evil is of the greatest magnitude. If In penal cases for example, the evil produced by rightful decision in respect of this branch /at this stage/ of it is beyond comparison greater /less/ than that produced by a wrongful decision importing a punishment to the same amount in appearance and in name. For the innocent man the man who /whose punishment/ is wrongfully punished, has for his support and satisfaction howsoever inadequate, all those reflections and shapes[?] which are included by /comprehended under //we have in view when we describe to him// the denomination of a good conscience: a consolation of which, if a man be guilty, and conscious of his being so, he feels himself deprived.
Similar Items
  • Title: [2 July 1804 Procedure and Evidence]
    Description: 2 July 1804

    Procedure and Evidence

    Note continued

    Ends

    Ch.│ │ Vexation

    '.1. Note

    By Viewing /To see who views/ the matter in a geneeral point of view, no other conclusion can therefore be formed /present itself/ in the character of a general one than that in this one of the two classes of causes, the vexation produced by a rightful /decision/ will so far as the individual /[...?]/ parties alone are concerned /considered/ be less than that produced by a wrongful decision /decision on the wrong side/.

    Adding /Putting together/ the two classes of causes together and supposing the number of each to be equal taking into account at the same time the superior magnitude of the interest at stake in a penal cause in comparison of what it is in a penal one it would be apt to appear that if a man were obliged to say by which of the two opposite modes of decision the greatest quantity of vexation were produced, the answer /probability/ should be by a decision in favour of the right side: but whatsoever might be the[?] answer in relation to the two classes of causes taken together - in the case of the penal class not a shadow of doubt could be entertained: and that the disparity would be clearer and clearer /greater and greater/, the severer the punishment or what on the occasion must be taken to be the same thing /proportion/ the greater - the more mischievous the offence. Had the mode of punishment, the species of death, been in the two cases the same, no doubt for example could have been entertained, but that the load of mental suffering sustained by /that pressed upon/ the innocent Calas who suffered /was executed/ at Toulouse for the [...?] murder of his beloved son, was inferior to the mental suffering endured by /suffering of/ Mary Bloundy[?] who was executed at Oxford for the murder of her fond and indulgent father.

    /(and supposing idiosyncratical sensibility the same/

    /A o 1760?/

    /A o 1754?/
  • Title: [4 July 1804 Procedure & Evidence]
    Description: 4 July 1804

    Procedure & Evidence

    Note Evils causes

    3d order

    '.3 Non-decision

    Note (a)

    (a) A few instances /A rare and heteroclite sort of case/ will be mentioned /brought to view/ in its place /further on/ /in proper ----/, in which a cause may be, and is sometimes /is,/ carried on without a complainant /demandant/ the same person ---ling /adding/ the function of the plaintiff to the office of the judge /that of the judge/.

    Setting aside this /that/ heteroclite sort of case, so long as there is no demandant, and thence no demand, there can not be any decision. no decision either on that side or the ---- can take place /be pronounced/ never ---- takes place. With regard to the ------ of the parties in respect of the result of the suit, it is exactly the same, setting aside the incidental evils of vexation and expence, as it would be if the complaint having been instituted, a wrongful decision /adverse/ to the prejudice of the plffs side had been pronounced.

    But to an individual whose station is on the plaintiff's side /of the demandant/ - to an individual who stands in need of a service to be rendered to him by the judge, the effect of non-decision, which so long as it lasts, is exactly to same as that of wrongful decision - a decision importing a wrongful refusal to render him that service.
  • Title: [2 July 1804 Procedure and Evidence]
    Description: 2 July 1804

    Procedure and Evidence

    Note continued

    Ch.│ │ Vexation

    '.1. Note

    It is not therefore to this order or stage of the consequences of a rightful and beneficial judicial act /of an act/ which substantial justice is administered, that we are to look for the good produced by it - for the reason for wishing that all acts [...?] from the same authority, may be grounded in the same substantial ground, it is to the two other stages of the progress of its influence in Society that /for this purpose/ we myst look /turn our eyes/ for the present purpose, and at the very first of the two all doubts will be dispelled: From an unjust decision, especially to the prejudice of the defendant and in a penal cause, we see nothing but alarm and danger: each /either //in [...?] of ///by///reptition/ of them capable of swelling to a mass, capable of overwhelming society and tearing it /society/ up by the roots. From just decision on the side we see nothing but comfort and security: unless it be to the perverse few and among them to no more than such as choose voluntarily to torment themselves with the like alarm by exposing themselves to the like danger. +

    Thus important is the distinct between the three orders of good and evil - the three stages of their progress in society. Without no rational foundation could be shown for the preference given to /difference due between/ oppression over /and/ relief, between justice and injustice. The foundations of government would stand on no better ground than the obscure /confused/ and continually fallacious[?] of vulgar prejudice. averring its weakness under some such veil as the word sentiment, right reason, moral sense /common sense/, and so on without end.

    / + Introd. Dum./

    /giving its own [...?], as a reason for its own obstinacy-/