date

10 March 1808 Letter V §.6
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.
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  • Title: [23 March 1808 Letter V Ends]
    Description: 23 March 1808

    Letter V

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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: [10[?] March 1808 Letter V]
    Description: 10[?] March 1808

    Letter V

    '.6. Reason

    Ends of Justice

    Inserendumae ? Cons[...?]

    II. Evils of the 2d order

    I. Evils of the 2d order the mischievousness of which consists of in their being

    or tending to be productive of those evils of the 1st order which are

    correspondent and opposite to the direct ends of Justice, as above

    7. 1. Misdecision to the prejudice of the plaintiffs (or demandants) side.

    8. 2. Non-decision: - the Judge not pronouncing any decision at all on the

    subject of the demand.

    9. 3. Non-demand: No demand made by the person who on the occasion in question,

    would had he thought fit have been intitled to make a demand: i.e. a demand of

    some beneficial service to be rendered to him [...?] at the charge of some

    person or persons on the defendant's side, by the Judge. At first sight, here it

    may be thought is no evil produced no injustice done. In some cases no: but in

    others, an evil the same in the main, as that which has misdecision or

    non-decision for its cause: for instance where the cause of a man's not

    demanding what is his due, is his inability to defray the expence without which

    his demand can not be substantiated. See infra.

    10. 4. Non-justiciability on the part of the Defendant. Though on the score of

    wrong committed by him satisfaction is done from him[?] yet for some reason /by

    some reasons/ or other the means of /means for/ compelling /engaging/ him to

    render it, are not to be found: the person or his property to the necessary

    amount are not forthcoming &c. See infra.

    11. 5. Desistment on the part of the demandant. After a demand made he desists

    from pursuing it, desistment may be produced by most of the causes by which

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  • 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.