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_039.xml

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.[?]

JB_045_736.xml

Title: [28 May 1812 Evidence Notes]

Description: 28 May 1812

Evidence

Notes

Introd

Ch. 20 Auth & Deauth.

'.2

(4) { at whose charge} i.e. on whom supposing the genuineness and the validity of it established, the effect would be the imposing of an obligation more or less burthensome in any shape, non-penal or penal absolute or eventual[?], pecuniary or non-pecuniary - pecuniary as in the case of a conveyance or other disposion of property: pecuniary or non-pecuniary, as in the case of an agreement.

The supposition here is - either that with relation to the interest of the party in question the effect of the instrument is either purely burthensome or if it be in part burthensome and in part beneficial that it is in a preponderant degree burthensome, the ballance being on the side of burthensomeness: the case being that genuineness /spuriousness/ is to be used not in /as to/ part only is the vice imported to the instrument. If spuriousness in this or that particular part only as in case of falsification be the vice imported /suspected/, in that case while the operation of the unfalsified part is at his charge the operation of the falsified part may be to whose /his/ benefit or vice versâ.

In the account /estimate/ taken /examination made/ of the effect of the instrument upon the interest of the party and thence /in that respect/ upon the probative force of his testimony the whole /the effect/ together must be taken into the account.

In so far as the operation of the instrument is at the charge of the party in question, the probative force of his testimony in forms of the genuineness of of the instrument is greater although he is a party, or rather for that very reason because he is a party interested - his being in that way interested than that of an extraneous witness can be supposing the witness to be altogether without interest in either side: for by the supposition not being exposed to the action of any sinister interest acting on him in such a direction as to [...?] him to depose in favour /affirmation/ of the genuineness of the instrument, it follows that if so it be that he does depose in affirmation of it, his deposition to that effect can have had no other cause than his sensibility and obsequiousness to the action of these tutelary motives which under the denomination of the general efficient cause of correctness and compleatness and thence of trustworthiness as evidence have been already enumerated and explained. In. Ch.