16 June 1804

Evils - Causes

Ch. Undue Decis. Causes Factitious

An aggravation of this breach of faith is the punishment - the mis-seated and therefore unjust punishment - that is in this case tacked to it. The mere loss of the cause is in effect a punishment - and in proportion to the importance of the cause - to the losing party in question and the progress made in it - a severe one. The pecuniary burthens usually inflicted under the name of punishment - under the name of fine - are in many instances as it were nothing to it. Where costs i:e. those of the successful party are added (as in almost all cases they ought to be added) to those of the unsuccessful party - the pressure of the punishment receives another aggravation. But the delinquent author of the delinquency the transgression such as it is, is - who? not the party on whom the punishment is thus imposed, but another person - and a person on whose conduct it is not in the power of the party to regulate. The author of the transgression is always either 1. the Judge: 2. some judicial officer subordinate to the Judge: 3. or the professional agent of the party. The punishment is therefore of that essentially iniquitous though unhappily but too common kind which in all cases may be termed mis-seated - and in some cases, and in the present in particular /of which the present is one/ vicarious punishment: punishment of one man for the transgression of another: punishment of a man for transgressions in which he has had no share.

Over the conduct of the Judge or any of his subordinates, it is sufficiently manifest, that the party thus defeated /punished/ for their transgression could not have /exert/ the smallest influence. (a) Over that of his own agent - his Attorney or his Advocate, it might to a hasty glance seem otherwise. But why is it that a man in a business of this sort, throws himself into the arms of an Agent? It is because he is unable /under a disability - a compleat disability/ to transact it for himself. And what is the system of law that is most eager thus to punish a man for the transgressions of his agent? the law /system/ that has done the most to render it impossible for a man either to transact his own business of this kind, or so much as to obtain the minutest insight into it: the law that has taken care to render it not simply difficult but absolutely impossible either to transact his own business himself, or to controul in any of the respects in question the conduct of this object of his forced choice.

(a) In the Roman Law, [...?] are usually the work of the Judge because the conduct of the procedure is here in reality, as it ought to be. [...?] in English Law.