18 March 1808

Letter V

§.6. Reasons

Ends of Justice

4. Desistment Causes

IV. Causes of Desistment, (viz. after demand), in the cases in which it operates as a cause of Failure of Justice.

With a few exceptions, which upon looking over the causes of Non-Demand will be obvious, the causes of Desistment will be found to be the same: the difference, whatever it is, being the result of the difference in respect of relative time.

Factitious causes, negative or positive, of Desistment, and thence of Failure of Justice.

In the case where, for the more effectual prevention of the wrong, punishment either in lieu of satisfaction (there being no party specially wronged) or in addition to satisfaction, has been deemed necessary, omission of such arrangements as may be necessary to prevent the plaintiff from putting an end to the suit and so giving a virtual pardon to the defendant without the concurrence of the Judge.

Technical procedure affords to individuals means in abundance, and those sure and safe ones, for frustrating in this way the designs of the legislator: manufacturing nullities, keeping back the evidence, &c: the parties need but to take their choice.

Frequently the same offence or wrong is made punishable by any one of several degrees of punishment, attached to it by so many different statutes or rules of jurisprudential law. By one article of law, the offence being capital, the accusation is grounded on another, under which it is less penal; and then, by whatsoever motive the choice of this unfair degree of punishment may have [been] determined, it receives the praise of humanity, and, amongst other persons, from the Judge. The commendation is frequently just; but can seldom be so, unless the reproach of inhumanity and inconsiderateness be to an equal degree merited by the legislator.