date

19 March 1808 Letter V §.6
19 March 1808

Letter V

§.6. Reasons

Ends of Justice

Injustice v. defend t Causes

IV. Desistment

IV. Desistment from defence.

This is no more than non-defence supervening at any point of time posterior to the operation by which Defence is understood to be commenced: subsequent to what in the language of learned and reverend mendacity and extortion is stiled as above, appearance. Where the effect of is in like manner to produce injustice to the prejudice of the defendant's side, the causes of it are to be found upon the list already brought to view.
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  • Title: [19 March 1808 Letter V §.6]
    Description: 19 March 1808

    Letter V

    §.6. Reasons

    Ends of Justice

    Injustice v. Defend t Causes

    III. Non-Defence

    3. Non-forthcomingness on the part of the evidence: viz. of the evidence necessary to prove the facts which, if proved, would constitute the matter of the defence.

    4. Want of a power ab extrâ in other shapes, adequate to the effectual support of the defence: and in particular want of the pecuniary power necessary to the defraying of the expence.

    5. Want of ultimate will, adequate to the endurance of the expence added to the vexation attached in other shapes to the course of operations necessary to the purpose of defence.

    This requisite will naturally be wanting and in general, on point of prudence, ought to be wanting, as often as it is understood that the neat expence attendant on defence even if successful, will be greater than the amount of the loss that would be produced by a compliance with the demand however unjust.

    Factitious causes of Non-Defence when the result of it is injustice to the prejudice of the Defendant's side.

    See above, d o of Non-Demand.

    It is in this way that under Scottish as well as English procedure, but to a greater extent under English, the great majority of the community are placed under the yoke of the tyrannical part of the remainder, being exposed without remedy to oppression by groundless demands or prosecutions: oppression, viz in the shape of simple oppression, or of extortion, with or without ulterior oppression, as the case may be.
  • Title: [19 March 1808 Letter V §.6]
    Description: 19 March 1808

    Letter V

    §.6. Reasons

    Ends of Justice

    Injustice v. Defend t Causes

    III. Non-defence

    III. Non-Defence.

    Correspondent to Non-Demand on the Plff.'s side, or Non-Defence on the Defendant's side.

    The effect of it naturally and commonly is, as with some exception, and under some conditions, it is right it should be, the same as that of decision in conformity to the plaintiff's demand: that is, supposing the decision wrongful, if misdecision to the prejudice of the defendant's side.

    Causes of Non-Defence. See Causes of Non-Demand

    1. Want of knowledge of the law: viz. in the case where the law, if known and understood, would have been seen not to warrant the demand, or to afford a ground of defence, if the benefit of which he who should have been defendant, is, by the want of that knowledge, deprived.

    2. Want of knowledge of the existence of this or that matter of fact, of which sufficient evidence might have been obtained, and which if proved would have been sufficient either to disprove the alleged facts which constitute the ground of the demand, or to establish a ground of defence sufficient to refute it.
  • Title: [23 March 1808 Letter V Ends]
    Description: 23 March 1808

    Letter V

    Ends of Justice

    Proceeding upon this plan, I observed at the first step five distinguishable incidents in the character of immediate causes of failure of justice, as above delineated /determined/ and consequently of the three more particular evils which that general denomination may be /has been/ seen to comprehend: viz. Misdecision (on the part of the Judge to the prejudice of the plaintiff's side. 2. Non-decision [...?] in the same quarter. 3. Non-demand, on the plaintiff's side, that is on the part of him who should have been plaintiff, and who would have been but for some defect /evil/ somewhere, the effect of which is thus to deter him of his right: 4. Desistment, viz. from demand, the effect of which when taking place as it must be understood to do, before decision pronounced, in the sense as that of non-demand, in respect of the depriving the party of the benefit in question, and for want of the failure of justice to his prejudice takes /has taken/ place: 5. Non-justiciability on the part of the defendant: the condition he is being such, as to enable him to elude the power of justice.

    /Carrying the eye of scrutiny/ Applying the scrutiny in like manner to the discovery of the causes of that mass of injustice the pressure of which is confined as above to the defendant's side, I found in the first instance /at the first step/, misdecision, as before, and then non-defence, and lastly desistment from defence as a cause of evil matching with non-demand on the plaintiff's side: on this last side non-decision, and non-justiciability of the party on the opposite, not finding any thing to match them on the defendant's side.