15 Apr. 1803

Evidence

Ends

'Order

I.6. Inconveniences from undue decision

1. Undue decision. 2. Failure of Justice.

In undue decision we may observe a cause or source from /in/ which the several inconveniences of the first order take their rise all of them /each of them/: which of them it shall be in each instance it shall be depends partly on the nature of the cause - viz: whether penal or non-penal - partly on the side of the cause to the prejudice of which the inconvenience redounds affected and prejudiced by the inconvenience - viz. whether it be that of the plaintiff or that of the defendant.

Postpone to Justice & Injustice

In N o. 1, 3 and 5. Punishment not applied where due; N o 3; satisfaction not applied where due; and N o 5: Rights not conferred where due - these three /are the/ inconveniences are indicated /the indication of which is stated /comprehended// by the common expression - failure of justice.

Undue decision is not however the only proximate cause from which these three inconveniences are capable of taking their rise.

Non-decision - though negative in its description - is a source from which they are equally capable of taking their rise. Negative as it is in its complexion it is even much more prolific - much more efficient than the other positive one.

Non-decision itself has for one of its causes - and that by far the most prolific and efficient - non-complaint A very few cases excepted - too few to be worth noticing for /to/ any other purpose /end/ than that of avoiding /escaping/ the charge /imputation/ of incorrectness - the motions of the Judge are dependent on those of the Plaintiff. No piper, no dance. By possessing /In virtue of the exclusive possession to him of/ the initiative, the plaintiff has /possesses/ an original negative on the decision of the Judge. Whatever, by fear or otherwise prevents a man, in any instance from coming forward in the character of a plaintiff to apply for justice, prevents the Judge in that instance from administering it.