14 June 1805

Evidence

Introd

Ch. Procedure Technical

In both cases the mischief that is done is alone /equally/ the handy-work of the man of law /collateral but not less certain result /produce//: the fruit of the tax imposed by him, and for his own benefit, on that sort of [...?] which goes by the name /to which he gives the name/ of justice: but in one case that is done by mere terror of the man of law, which in the other case can not be done without force actually applied: in the one case the man of law sees the whole profit reaped /got in/ by the wrongdoer, and gets some of it for himself: in the other case the wrongdoer is forced to let the mother of the iniquity into a share of the profits, and the business goes on in partnership. If it were possible to come in for a share in both cases /all cases/, the man of law of course would not have a single door open through which the wrongdoer might then creep in and get to himself the whole of the profit without paying for it and put the whole profit into his hands without allowing any part to leave[?] to when he is indebted for the whole. But the two cases are so mixed that they can not be separated: so that /and thus/ as to this part of the cause, the man of law is obliged on each individual occasion to take his chance /leave the matter to chance/.

The option is - to act immediately in the character of plaintiff, or eventually in that of defendant.

Upon this plan there is at any rate no suit in the first instance, and either there is no suit at all, or at any rate none till after the main wrong is done: but the wrong done, the wrongdoer rests, as it were upon his oars, and if thereupon a suit does take place, the part which he acts in it is the defendant's part /part of the defendant in the cause/.

If he prevents the species of injustice (over and above the vexation expense and delay in the case of litigation) the species of injustice produced by the plan of injury is that which is called /comes under the denomination of/ failure of justice and which, according to the law[?] of conduct maintained by the part injured has for its immediate cause, either Non-Demand, [...?], or misdecision to the prejudice of the plaintiff's side: misdecision /ultimate misdecision,/ being under the technical system the result that takes place, as of course, wherever the party who is in the right is liable to pay the price set upon a decision, when given on his side in favour of his side.