date

19 March 1808 Letter V §.6
19 March 1808

Letter V

§.6. Reasons

Ends of Justice

Injustice v. Defend t Causes

V. Non-Justicialities of Plff.

V. Non Justiciability on the opposite side: viz. on the part of the Plaintiff.

This is not, strictly speaking, of the number of the causes by which injustice is liable to be produced to the prejudice of the defendant's side.

What may indeed happen, and does in fact happen but too frequently, is that by non-justiciability on the part of a plaintiff, the defendant sustains a loss, and in so doing suffers a wrong, in respect of the expense imposed on him by the obligation of defending himself against an unjust demand. But in so far as for that or any other wrong he demands money in the name of satisfaction i.e. as lawyers phrase it, applies for costs, he takes upon him to that effect the character of plaintiff: he acts as plaintiff in an incidental demand, a sort of cross cause, arising out of the original and principal one. Suppose the Defendant to have no demand on the Plaintiff, the non-justiciability of the Plaintiff can be no loss to him.
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  • 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.
  • Title: [10 March 1808 Letter V §.6]
    Description: 10 March 1808

    Letter V

    §.6. Reasons

    Ends of Justice

    In every instance how great so ever be the evil, it is only in so far as in the case where misconduct on the part of some human agent is discernible, that the evil can with propriety receive the denomination of an injustice: or at any rate, it is only thus far that any act of injustice can, with propriety, be said to have place. Witness the cases where the injustice sustained, (whether by non-administration of satisfaction as for wrong, or non-collation of some right which at the instance of a demandant ought to have been conferred on him by the hand of the Judge, or by non-administration of punishment to a defendant at the instance of a demandant) here for its immediate cause non-demand on the plaintiff's side, or non-justiciability on the defendant's side, (i.e. on the part of him who should have been made defendant) or after demand made, desistment, on the plaintiff's side.

    But in several instances where the evil, designated by this or that denomination, appears not to be capable of being spoken of either as being itself an injustice, an act of injustice, or as having any act of injustice for its cause - at least for its immediate cause, yet on a closer examination into the chance of causes and effects, it will be seen to have at bottom its root in misconduct some where, viz. either on the part of the Judge, or on the part of the system, i.e. of the legislator, in this behalf, ad hoc.
  • 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.