16 June 1804

Procedure and Evidence

Evils - Causes

Ch. Undue Decis. Causes Factitious

The catalogue /treasury/ /treasures/ of abuse and absurdity is /are/ not yet exhausted. Wheresoever, by giving ground and birth in any way to a decision to the prejudice of either /any/ party, on grounds foreign to the merits on grounds which may be capable of being fabricated for the purpose, it is in the power of any person - Judge, subordinate minister of justice or agent of that same party or the adverse party to cause that /occasion the/ party to lose his cause, is in that persons hands. If at the same time that the existence /possession/ of this power is understood to be possessed by him who thus possesses it, upon the ballance of enacting /instigating/ and restraining motives he be urged by what presents itself to his view as a preponderant mass of interest[?], he will act accordingly, and law and justice will thus be sure to be defeated by his means. If the case be a purely penal one, and the party made in this way to lose his cause the plaintiff, whosoever by any act of his has it in his power to produce /give birth to/ this effect, possesses in effect the /a/ power of pardoning, a power of pardoning, operating /stretching/ in extent to the extent of the mass of causes that is to the classes of delinquency to which the influence of such his agency in this way extends. If the instrument by which the accusation is notified be called in all cases an indictment, and it be in the power of any person, by the insertion or the omission of this or that word in the indictment to produce a decision in favour of the defendant, in consequence of what the defendant, whatever have been his crime goes free, a power of pardon is in such case possessed by that person, a power as simple as any power of pardon that was ever possessed by any monarchical or other sovereign. If to the act of making of such interpolations or omissions no punishment whatsoever /in any shape/ stands annexed such virtual /secret/ power will not be in any respect to be distinguished from an avowed and openly established power, except by the facility, the consequent silence with which it may be exercised, the facility with which it may be abused to the most pernicious purposes