14 May 1805

Evidence

Introd

Ch.9. Precipitation

Without having been productive of mischief in any of those shapes, it may still happen to the conduct of the Judge to be chargeable with precipitation and justly chargeable. The plaintiff (suppose) is altogether /compleatly/ in the right: demanding at the charge of the defendant, in quality as in quantity, no other punishment, no other right, no other satisfaction, by the tenor[?] and spirit of the substantive law, than what, is due. by the supposition therefore no evil produced opposite to the direct end of justice, in any one of its three branches.

But though by the supposition, at the charge of either of the parties to the cause no mischief has been done, it follows not but that on the part of the precipitate Judge, there may be just and very serious cause of censure. - Why? because by the supposition his conduct is such, as affords serious cause of apprehension of mischief - an indefinite train /mass/ of mischief, on the occasion of succeeding suits[?]. Mischief of the first order, none: but of mischief of the 2 d order, danger and alarm, the precipitation may have produced a very momentous mass.

The case is a penal one /Suppose a penal case./ A witness has been excluded altogether: another witness has been cut short in his evidence. On which side was the evidence thus precipitately dealt with? On the side of the Defendant? to the defendant no injury ensues, for by the supposition he was guilty and had incurred the exact punishment to which he is consigned /subjected/ by the ultimate sentence. But, by the same rashness /turn of mind/ by which a guilty defendant has in this individual instance been subjected to due punishment, in the next instance that presents itself come innocent defendant may be subjected to exactly the same punishment, though in his instance it be undue.