JB_058_040.xml

Title: [21 May 1805 Evidence Introd]

Description: 21 May 1805

Evidence

Introd.

Ch. Preparatory Explanat.

'. Division of suits

2. If there be an individual who by an interest peculiar to himself, and setting aside casual impediments /obstacles/, adequate to the purposed, is incited to institute and engaged to carry through the suit, in such case, saving an excepting[?] such measures as may be necessary for the removal or surmounting of such impediments, in such case the legislator is under the need of occupying himself about the creation of any factitious interest, directed to that end. In this case are all /in general/ those suits which are of a purely non-penal nature and suits which are not grounded on any correspondent class of offences, inasmuch as a suit of this description does not presuppose the existence of any act coming under the description of an offence. 3. If although at the same time that an individual exists[?], who by an interest peculiar to himself may be [...?]: institute and engaged to carry through the suit, yet it may chance that in this or that individual instance that interest may not be of a strength /the strength of that interest may fail of being/ adequate to the purpose, at the same time that the public at large has /possesses/ an interest in the rendering of the service demanded by /which is the object of/ the suit, and an interest of such magnitude as to render it inexpedient to trust the rendering of the service altogether to the chance of an adequate interest on the part of the individual, in such /this third/ case the legislator is called upon to make provision against the partial[?] or contingent deficiency of individual interest, in the same manner as he is to make provision against the total deficiency of such interest in the first case.

JB_058_041.xml

Title: [21 May 1805 Evidence Ch Preparatory]

Description: 21 May 1805

Evidence

Ch Preparatory Explanat

In a purely penal or a mixt suit the burthensomeness of the operations necessary to secure the forthcomingness and justiciability on the part of the defendant will be greater than in a purely non-penal suit. It is in the character of a general proposition the observation is true: but whatever truth belongs to it, does not belong to /attach upon/ it till after it has undergone large exceptions. In height the scale of burthensomeness extend much further in the case of a penal, than in the case of a non-penal suit. By the unfavourable event of a non-penal suit the defendant can not be subjected to any burthen beyond /greater than/ that of parting with a mass /portion/ of the matter of wealth;(a) by the unfavourable termination of a suit of the purely penal or mixt kind he may be subjected to a burthen of any conceivable weight, up to loss of life, accompanied with the utmost degree of bodily affliction that human[?] nature is capable of enduring, according to the nature of the list of punishments provided by the penal code of the state in which the suit happens to be instituted. In depth the scale of burthensomeness may extend and commonly does extend as far in the case of a purely penal or mixt as in the case of a purely non-penal suit. A fine to no greater amount than a shilling, a portion only of the value of a day's labour of an ordinary hand, is a punishment /the amount of a burthen/ not infrequently imposed under the name of punishment, in English judicature. (a) Sure[?] as to condition in life?

JB_058_038.xml

Title: [May 1805 Evidence Introd]

Description: 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.