date

17 March 1808 Letter V §.6
17 March 1808

Letter V

§.6. Reasons

Ends of Justice

3. Non-Demand Causes

III. Causes of Non demand, in the case in which it operates as a cause of failure of justice.

As in the character of a cause of failure of justice, Non-Decision supposes demand, so in the same character, Non-Demand, supposes a just title: viz. on the part of some person who should have been plaintiff: a title to some service or other which is one or another of the three shapes so often mentioned should have been rendered by the Judge, and by the same rendering for want of which the failure of justice has been produced.

Moreover the character of an evil thus ascribed to the negative end in question, supposes evil in some shape or other undue pecuniary loss for example, to have devolved on some person for want of such demand.

I. Natural causes of Non-Demand, as thus explained:

1. On the part of him by whom the demand should have been made, want of knowledge of the law or rule of action, in respect of such part of it by which the ground of such demand is created. See on the head the list of Factitious causes.

2. In the same quarter, want of knowledge of the facts, the knowledge of which would have been necessary to their being brought to view in the character of evidence in support of the demand: collective events in respect of the right or title to the service which should have been demanded.

See again the list of Factitious Causes.

3. In the same quarter, want of correspondent power at extra, adequate to the effectual support of the demand, from the commencement of the suit to the termination of it: in particular want of power for defraying the necessary expence. See again Factitious Causes. For ulterior causes of this deficiency see further on, titles Non-Justiciability of him who should have been made Defendant, and Non-forthcomingness of Evidence.
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    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: [19 March 1808 Letter V §.6]
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    §.6. Reasons

    Ends of Justice

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    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.

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  • Title: [17 March 1808 Letter V §.6]
    Description: 17 March 1808

    Letter V

    §.6. Reasons

    Ends of Justice

    3. Non-Demand Causes Factitious

    II. Factitious Causes, Negative or Positive, of Non-Demand, and thence of Factors of Justice.

    1. Non-notoriety of the existence and tenor of the law. See above, Causes of misdecision, and further on.

    2. Uncertainty on the part of the law. See above, Causes of Misdecision and further on.

    3. Want of knowledge of the facts, as above in the cases where, lying within the cognizance of the Judge, and not of the party interested, measures which might and should have been taken by the Judge, under or without the ordinance of the legislator, for communicating the information, have not been taken by either.

    4. Where the non-demand has for its cause the want of power to defray the necessary expence; for the factitious causes of this inability, See under the head of Expence the Factitious Causes of the evil of Expence.

    5. Where the non-demand has for its cause the want of will (original will) to sue, as in the case of prosecution whereby punishment of the alledged wrongdoer is demanded, want of the arrangements necessary to provide in every case a factitious interest capable of operating as an adequate succedaneum to the natural interest, which is wanting in all cases of which the offence being of a nature purely public, afford not in the person of any determinate individual, the object of any particular injury. See the Table of Delinquency.

    6. In some of the above cases, viz. in those in which for the purpose of engaging a prosecutor, statute law offers, to him to whom it has happened to be a percipient witness to an offence, a reward payable on conviction of the offender; rules or usages of jurisprudential law have in contradiction to the ordinances of the legislator been established, excluding[?] him substantiating the charge in the character of a deposing witness.