date

21 May 1805 Evidence Introd
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.
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  • Title: [21 May 1805 Evidence Introd]
    Description: 21 May 1805

    Evidence

    Introd

    Ch. Preparatory Explanat.

    ''. Division of suits

    The demand for this distinction in classification /arrangement/ and nomenclature was produced by several differences of prime importance in /with a view to/ practice.

    I. From the differences respecting burthensomeness of the obligation result correspondent differences in respect /respecting/ the coerciveness[?] and thence the burthensomeness of the operations necessary to secure forthcomingness and eventual justiciability of the defendant. In general the burthensomeness of these operations will be greater in a purely penal suit or a mixt suit than in a purely non-penal suit.

    II. From the differences respecting the interest of suing[?] by which an individual having it in his power to institute and carry through a suit having for its object the demanding at the hands of the Judge the rendering of the service rendered by the imposing upon the defendant the obligation correspondent /appropriate/ to the nature of the suit, result the necessity or non necessity of extraordinary measures to be taken by the legislator for serving in all cases the institution and the [...?] of the correspondent suit.

    1. If there be no /the nature of the case be such that there is no/ individual who by any interest, any naturally[?] [...?] interest peculiar to himself is urged /[...?]/ /instigated/ to institute the suit, and thence to subject himself to the vexation and expense attached to the [...?] of it, in such case either the legislator in default of such natural interest, must create and afford to some individual a factitious interest adequate to the production of such effect, or the correspondent branch of substantive law will go unfulfilled.

    In this case are all these suits which are of a /belong to the/ purely penal nature /class/: suits which have for their object the cutting down /causing/ punishment to fall upon the defendant on the score of an offence of the class composed of the offences stiled[?] Public Offences, being the last of the four[?] classes into[?] /under/ which offences of all descriptions have been arranged in a book already under the public eyes+

    + Dum.[?]
  • Title: [4 April 1804 Evidence Forthcomingness]
    Description: 4 April 1804

    Evidence

    Forthcomingness

    Ch. 6 Appearance

    §. 3 Cases for extraordinary

    §. 3. Cases for extraordinary securities.

    The /Of the/ cases in which it may happen to a witness to be prompted /incited/ to disobedience, acted upon by a motive too strong to be overcome by a security of the ordinary kind as above described the following are those that will be found most frequently [...?] /exemplified/ in practice.

    1. Complicity. This takes place only in causes of a penal nature: and applies only to such witnessess the force whose testimony would act in favour of the plaintiff - would bear against the cause of the defendant. In this case, though, for want of knowledge or suspicion of the part taken by him, the proposed witness may not have been as yet placed in the predicament of a defendant, yet, if he be conscious in his own mind of having been a sharer in the delinquency, an apprehension if being proceeded against on that score, whatever motives would urge him to evasion in one case, will alike urge him to it in the other.

    2. Subornation by a party. this cause of evasion is /This practice is alike/ applicable to non penal as to penal cases - subornation is a term not as yet commonly employed in any other case than that in which the offence to the commission of which a man is incited by his seducer consists in an act of an affirmative description - the exhibition of false testimony /evidence/. But an effect of the same nature, exerting the same influence /giving the same [...?]/ in the termination /event/ of the cause may be produced by an act of a negative description - the avoiding to give any evidence at all - and in that respect avoiding to give true evidence. In this way the effect of mendacity may be produced without any of the infamy attached to that species of improbity, and unless sufficient provision be made to the contrary, without any of the danger. The danger so far as corporal suffering is concerned will at any rate have been avoided in case of expatriation. As to the vexation attendant on such a proceeding, it may be very great, or it may amount absolutely to nothing, according to circumstances. In some circumstances, no quantity of the matter of corruption will enable an impulse adequate to the production of this effect: in other circumstances, especially where on other accounts a man peculates[?] whether to stay or go, the weight of a very small sum may be sufficient to turn the scale.
  • Title: [[059-211] 18 May 1805 Evidence]
    Description: [059-211]

    18 May 1805

    Evidence

    Introd.

    In so far as any encrease in the number of suits receives its existence from this cause, the question on which it /the suit turns, --- ----- --/ is the object of the suit to obtain as decision, is the question of law .

    The tenor of the substantive law being supposed clear - not ambiguous - the raising the number of well grounded suits to its maximum is thus --ing the legitimate ends of procedure - Why? because it is only in proportion as it /this number/ approaches to this /its/ maximum that the direct ends of procedure are necessarily fulfilled: it is only in so far as a just cause of suit , is followed either by the rendering of the service in question without suit, where that can be done with propriety which it cannot be in a formal case, or by actual suit /by actual pursuit of the demand/, followed by a decision grounded on the demand; and rendering the service which is the object of it. a So often as the cause of suit remaining in existence, actual suit fails of being instituted, injustice is the result /consequence/ the dead end if procedure in one or other of its branches, remains disfulfilled.

    By any encrease in the number of ill-grounded suits, suits instituted without a just cause, whether with or without a -------- of this groundlessness, no such advantage is obtained: - why? because in any such suit, if the service demanded be rendered, that service being by the supposition not due, injustice /is done/ to the ------ of the defendant is done, the ultimate collateral end of procedure, in one or other of its three branches is contravened.

    a In the penal branch, an exception to this rule is ----- by the case of a multitude of delinquents too great for punishment. Cases exist in no small number ----- (the case of a civil war with alternate triumphs, for example) in which the whole population of a country may be /find itself/ involved in the predicament of delinquency. In a case of this sort, it is evident that as it can not be desirable that every delinquent should be punished, so neither is it that every delinquent should be prosecuted.