date

18 March 1808 Letter V §.6
18 March 1808

Letter V

§.6. Reasons

Ends of Justice

4. Desistment Causes

IV. Causes of Desistment, (viz. after demand), in the cases in which it operates as a cause of Failure of Justice.

With a few exceptions, which upon looking over the causes of Non-Demand will be obvious, the causes of Desistment will be found to be the same: the difference, whatever it is, being the result of the difference in respect of relative time.

Factitious causes, negative or positive, of Desistment, and thence of Failure of Justice.

In the case where, for the more effectual prevention of the wrong, punishment either in lieu of satisfaction (there being no party specially wronged) or in addition to satisfaction, has been deemed necessary, omission of such arrangements as may be necessary to prevent the plaintiff from putting an end to the suit and so giving a virtual pardon to the defendant without the concurrence of the Judge.

Technical procedure affords to individuals means in abundance, and those sure and safe ones, for frustrating in this way the designs of the legislator: manufacturing nullities, keeping back the evidence, &c: the parties need but to take their choice.

Frequently the same offence or wrong is made punishable by any one of several degrees of punishment, attached to it by so many different statutes or rules of jurisprudential law. By one article of law, the offence being capital, the accusation is grounded on another, under which it is less penal; and then, by whatsoever motive the choice of this unfair degree of punishment may have [been] determined, it receives the praise of humanity, and, amongst other persons, from the Judge. The commendation is frequently just; but can seldom be so, unless the reproach of inhumanity and inconsiderateness be to an equal degree merited by the legislator.
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    1. Misdecision: 2. Non-decision: 3. Non-demand. 4. Desistment. 5. Non-Justiciability on the part of the Defendant. Taken in the order of obviousness, such are the occurrences which present themselves as the causes to which, in the character of immediate causes, failure of justice as often as it has place to them - i.e. to some or more of them - may in each instance be ascribed.

    By the consideration of time, (were that the only one) a different order might perhaps be suggested: as, for instance, 1. Non-justiciability of the Defendant: 2. Non-demand: 3. Desistment: 4. Non-decision: 5. Mis-decision.

    On the present occasion the former of these two different orders seems best adapted to the purpose of explanation.
  • Title: [7 July 1804 Procedure & Evidence]
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    1. Supervention of any of the above mentioned natural causes of non-demand at a point of time posterior to the commencement /exhibition/ of the demand. Example. In a case of a mixt nature, in which by a suit of a mixt nature, satisfaction and /----/ punishment are included in the same demand, an offer of satisfaction alone is made and accepted - the demandant ceases to act in that character, and the consequence is - non-application of punishment where due.

    II. Factitious causes negative examples

    In cases of a mixt nature, as above omission (on the part of the substantive branch of the law) to create /----/ /attribute/ any right to satisfaction to the party injured.

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    In this case in default of a natural interest in prosecuting for satisfaction alone the hope of securing satisfaction by a compromise as above, may operate in the character of a factitious interest, so as /in such a manner/ as to engage a man to prosecute i.e. by a demand for punishment to be inflicted on the defendant: whereupon if after the demand commenced /instituted/, he secures such satisfaction as he is content to take, desistment from the demand takes place of course.
  • Title: [18 March 1808 Letter V §.6]
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    It is by natural procedure alone that this, as well as so many other incongruities and inconsistencies, can be prevented from taking place.

    The penal like every other branch of the law being a perfect chance and of all medley of design, made at different times by putting patches of statutes upon a ground of jurisprudential law, one consequence is a total want of all proportion as between offences and punishments. If the list of offences was put into one wheel and the list of punishments in another, a lottery thus drawn would afford no inconsiderable chance of a system better adapted in this respect than the present to the ends of justice.

    The same Judge who by manufactured nullities is continually occupied in destroying the efficacy of all laws and in particular of all penal laws, shall be seen procuring at the hands of the legislator, additions made without any regard to proportion to the extent of the system of unnecessary and pernicious slaughter already so extensive. The praise of Justice is thus earned by setting up the law, the praise of mercy[?] by beating it down and trampling upon it. The King can do no wrong: the Kings Judges do what they will, whether they build or whether they pull down, can never avoid doing what is right.

    The attributes of the divinity cluster round the head of learned barbarity, and encircle it with a ring of glory.