date

7 Aug st 1807 /7 March 1808/ Letter
7 Aug st 1807 /7 March 1808/

Letter V

§.6. Reasons

Ends of Justice

In what respect respecting evils, and in what they differ from one another will be shewn immediately

Evils of the 1 st Order: the list of which gives that of the correspondent and opposite ends of justice.

1. Misdecision; when to the prejudice of the plaintiff's side of the cause.

2. Denial of Justice. This evil coincides in the main with that of misdecision, when to the prejudice of the plaintiff's side. The reason for making a distinct article of it will appear further on.

3. Non-decision. This, while it lasts, has the effect [of] denial of justice. The reason for making a distinct article of it will appear further on.

Quere[?] 4. Non-demand. viz. of judicial services done. This too has in the main the effect of misdecision to the prejudice of the plaintiff's side. The reason for making a distinct article of it will appear further on.

5. Vexation: viz. juridical vexation: vexation to which in and by a course of judicial investigation it may happen to individuals of various descriptions to be subjected.

6. Expence: viz. pecuniary expence: the burthen of defraying it is a particular species of vexation to which the parties to the suit are in a more particular degree exposed. The reason for making of this evil an article distinct from that of vexation will appear further on.

7. Delay. This article at last has the same effect as misdecision when to the prejudice of the plaintiff's side, denial of justice, and non-decision. The reason for making a separate article of it will appear further on.

8. Misdecision, when to the prejudice of the defendant's side. The effect of this may be considered as so much vexation, to which that side alone of the cause is i.e. those persons alone whose station is on that side of it are, exposed. The reason for making a separate article of it, distinct as well from misdecision to the prejudice of the plaintiff's side, as from vexation, will appear further on.
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  • Title: [7 March 1808 Letter V §.6.]
    Description: 7 March 1808

    Letter V

    §.6. Reasons

    Ends of Justice

    Denial of justice

    To be consulted only

    2. Denial of justice. This mischief, as already observed, coincides in the main with that of misdecision, so far as it operates to the prejudice of the plaintiff's side. The wrong which in consequence is left without redress is susceptible of all the various modifications alluded to above.

    But in the case of misdecision, to this wrong, be it what it may, has been added the wrong done by whatever vexation in the shape of expence or any other shape has been imposed on any person or persons in the interval between the commencement of the suit and the termination which, from the supposed wrongful decision, it has received. In the case of simple denial of justice this aggravation of the main wrong has no place.

    Denial of justice may be the work and thence the fault, either of the system, (the system of procedure) or of the Judge.

    So far as it is the fault of the system, it is the result of the expence or vexation (for which see those several heads) or both together.

    So far as it is the work of the Judge, the denial may be positive or negative, or say expressed or implied. If expressed, it is in effect misdecision, a wrongful decision differing from misdecision at large, no otherwise than by being pronounced at the very outset of the cause. The Judge refuses to take cognizance of the plaintiffs demand: and in the refusal thus made consists the wrong.

    {When the denial is of the negative kind, it is effected by non-decision. If the duration of this negative act of non-decision has any bounds, the evil coincides with that of delay. No refusal is declared: but during the length of time consumed by the delay, cognizance is not taken of the cause. In this case the evil consists of the simple denial of justice, as above, with the evil of delay (which see further on superadded.}
  • Title: [March 1808 Letter V §.6. Reasons]
    Description: March 1808

    Letter V

    §.6. Reasons

    Ends of Justice

    Injustice v Defend t Causes

    I. Misdecision

    II. Non-Decision

    Causes of Injustice to the prejudice of the Defendant's side i.e. of Injustice done to an individual by undue obligations imposed on him in the character of defendant. whether on the score of satisfaction, on the score of wrong, collation of rights in favour of the other side, or punishment.

    I. Misdecision, to the prejudice of this side of the suit.

    Of Misdecision to the prejudice of this side all the causes are to be found upon the list of the causes of misdecision to the prejudice of the plaintiff's side: but of these last there are some which will be seen not to be applicable to misdecision when to the prejudice of the defendant's side.

     Examine

    II. Non-Decision.

    In the evil produced by this species of misconduct on the part of the Judge is involved the mischief to the same effect as what would have been produced by misdecision to the prejudice of the Plaintiff's side. If to that mischief the defendant's side is not liable to be subjected by the operation of this cause. There remains the evil of the delay, by which the defendant's side is liable to suffer as well as the plaintiff's.

    For the causes of Non-Decision, see above the case in which the side that suffers by it is the plaintiff's side.
  • Title: [6 Mar 1808 L d Eldons Bill]
    Description: 6 Mar 1808

    L d Eldons Bill

    Letter V

    §.6. Reasons

    Ends of Justice

    6. Expence

    6. Expence. Of a stock of litigation, vexation, is under every System an inseparable concomitant: Under the fee-gathering system so in an indefinitely variable but always large proportion, so is expence: even under the natural system, in some proportion or other, nearly so.

    To every man to whom his time and labour are in any shape a source of profit, much more if of subsistence - that is in every country to all but comparatively a very few, the time consumed in attendances and other ways by litigation is, over and above the vexation in effect so much expence.

    The sum being given whether being received it is disbursed, or whether the receipt of it be forgone makes in this respect no difference.

    Where neither ability nor resolution to defray it are wanting, expence attached to litigation is expence (with its vexation) and nothing more. Where from the outset of the cause either are wanting, the evil changes its nature: on the plaintiff's side it is denial of justice: on the defendant's side it is misdecision to the prejudice of that side.

    If at any intervening period between the commencement and the conclusion of the cause, the burthen of the expence becomes on either side intolerable and the party sinks under it, a load of expence and that a ruinous one is thus added, in the one case to denial of justice, in the other to misdecision to the prejudice of the defendant's side: that is either to extortion, or to oppression in some other of the many shapes in which oppression, that is the power of inflicting it, is to be purchased by every one who will pay the price, of the sworn ministers of justice. See misdecision to the prejudice of the defendants side.