date

May 1805 Evidence Introd
May 1805

Evidence

Introd

Ch.3. Preparatory

Explanation

'. Division of Suits

'. Division of Suits By every suit at law, by every juridical demand, an obligation of some sort or other is, endeavoured /sought/ to be imposed upon the defendant: if the nature of the obligation be such that the evil or burthen /sustained[]?]/ to which the defendant is subjected is of a nature /so circumstanced/ to be comprized /come/ under the denomination of punishment if the defendant on being subjected to it is said to suffer punishment he being understood to have done some act that comes under the denomination of an offence the suit is of the penal, say (for a reason that will appear presently) purely penal class: if the nature of the obligation be such that from the defendants being subjected to it, the plaintiff receives some advantage, but the Defendant is not considered as suffering any thing /subjected to any suffering/ on the score of punishment /not being considered as having committed /done/ any act that comes under the denomination of an offence/, the suit is of the non penal class: if from the defendant's being subjected to the obligation, the plaintiff is understood to have received an /some/ advantage, and his right to that advantage is understood to be constituted by the fact of the defendants having committed some /an/ offence, among the consequences of which is that of having been productive of some lot of mischief falling exclusively upon the defendants, the suit may be said to be of the mixed class: what advantage is in that case understood to come under the name of satisfaction, and in some cases compensation indemnification, indemnity damages(a) The mixture consists in this: viz: that in this case, the benefit received by the plaintiff by the administration of such satisfaction /upon such satisfaction being administered/ to him, his [...?] respect to the augmentation of his well-being an effect similar to that which redounds to him when by the non act of the Judge he is made to receive the benefit of a right, the inchoate right conferred on him by the legislator being for his benefit converted into a consummate /correspondent/ right: at the same time that on the part of the defendant the burthen attached to the obligation of rendering this satisfaction, being imposed on him a consideration of the offence committed by him (or her) to the prejudice of the plaintiff, has in that respect the effect of punishment.
Similar Items
  • Title: [? June 1804 Uses of this arrangement]
    Description: ? June 1804

    Uses of this arrangement in a purely final case -

    To the plff in such a case, the uses admitt of exactly the same description.

    In the case of the defendant, such uses as suppose on the part of the plaintiff a capacity of yielding evidence have here no place /gradually operating[?]/ - Why? because there being no individual more than another to whom the offence is productive of any special inquiry, the plaintiff will in general be some official person, who has no knowledge of the fact except[?] from the relation of others.

    An evident exception is constituted by that class of cases in which a reward is offered to turn [...?] [...?] or contribute to the conviction of an offence /the [...?]/, and the plaintiff is an informer whose inducement to take upon him that sanction is constituted by the reward, and whose means of obtaining it are constituted by the testimony which his [...?] have enabled him to give.

    Uses of this arrangement in a mixt suit - in which punishment ever and above satisfaction is demanded.

    To the present purpose, this case will, it is manifest, coincide in every point[?] with that of a non-penal suit abovementioned.
  • Title: [9 April 1804 Evidence Forthcomingness]
    Description: 9 April 1804

    Evidence

    Forthcomingness

    Ch.6. Appearance

    ยง.4. Subsequent Appearance

    The consequences of such folly or such wickedness, were it supposable, would according to the nature of the cause, and according to the side of the cause prejudiced by such deperition /the wound thus given to justice/, assume that diversity and opposition of character /complexion/ that has so often been exemplified /brought to view/. In causes purely penal and mixt, the evidence suppressed being evidence requisite for the proof /demonotration//conviction/ of delinquency, evidence sought for/ wanted/ on the part of the plaintiff, the consequence would be impurity - the triumph of guilt in causes of /belonging to/ the same character /classes/, the evidence suppressed being evidence requisite for aquittal evidence sought for on the part of the defendant, the consequence would be conviction, and punishment of the innocent: in causes purely non-penal, the evidence suppressed being evidence wanted on the part of the plaintiff, the consequence would be non [...?] of right /wrongful/ refusal of the service due/; or if wanted on the part of the defendant, wrongful imposition of an undue obligation - an injustice which to the amount of the weight of the burthen would be tantamount /equivalent/ to so much unjust punishment: in causes of a mixed nature /kind/, in which, the offence being of a nature to wound the public through the sides[?] of a particular individual, the demand for satisfaction in cases of delinquency is combined with the demand for punishment, the consequence of the suppression if, as above, to the prejudice of the plaintiff's side would be, to add to the refusal of the punishment in /on/ the administration of which the interest of the public is concerned /at stake/, the refusal of the satisfaction by which alone the injury to the individual can be made to erase; yet to the prejudice of the defendants, undue punishment aggravated by the burthen some obligation of defraying the expence of satisfaction for imaginary wrong.
  • Title: [23 April 1805 Evidence Ends]
    Description: 23 April 1805

    Evidence

    Ends

    Ch Conflict

    '. Conflict

    So again as between the main end the positive main end, and the negative main end corresponding and opposite to it, the charge of the person placed in the situation of defendant, take the measures requisite for giving effect to the arrangements taken and predictions delivered in that behalf by the substantive branch of the law, you run the risk of imposing the obligations /throwing the burthens/ respectively in question[?] upon the person in whose instant they are under: of inflicting punishment on a person /defendant/ innocent of the imputed offence - of imposing on a person the burthen of rendering satisfaction for an injury on the infliction of which he has had no share, of imposing, on some person in the character of defendant, in consequence of the right conferred on the demandant or plaintiff, an[?] obligation which in his instance /when thus imposed upon him,/ is undue. Determine at all events to preserve men altogether from all risk /[...?]/ possibility of being unduly subjected to these disastrous obligations, there is one means by which you may succeed to a certainty, and there is but that one way in which you can succeed - which /and that [...?]/ is the course already pointed out in the former case the putting an end to all recourse to justice. Its /The/ main[?] species as before is either destroyed or ruined: but at any rate the innocent are preserved from all danger of legal punishment, and mankind though left[?] a prey to injustice from every other source, is preserved from all that injustice which has for its source the execution of the law.