5 July 1804

Procedure & Evidence

Evils

3d order

'.1 1. Wrongful decision to plff

Evils of the 2d Order (= Cause of the 1st Order)

1. Wrongful decision - viz: on the part of the judge to the prejudice of the plff.

Immediate causes of this evil: being causes of the 2d order with reference to ultimate injustice in any of its six several branches -

I. On the part of the judge.

1. I. Natural causes

Deficiency in respect of

1. Want of intelligence - including

1. Knowledge of appropriate matter of fact, in the character of precognition.

2. Real lack of judgement or say discernment

3. Promptitude of conception and judgement

4. Faculty of repression

2. Want of probity: 1. impartiality 2. assiduity of bodily attendance 3. Attention - labour of mind.

3. Want of adequate power ab extrà - i.e. from the legislator, or rather from the nature of things. (a)

 For the remainder to the causes of wrongful decision so far as they are referable to the formal qualifications of the judge, see the Book on the Judicial Establishment.

II. On the part of the evidence -

4. Unforthcomingness of a part or of the whole of the existing mass of requisite evidence

5. Fallaciousness of /in/ any part of the mass of evidence forthcoming and exhibited.

II. Factitious causes negative.

1 Non-notoriety of the law bearing upon the case. viz: of that part of the law by which if known a different decision would have been seen to be prescribed.

2 Uncertainty of the law - (The terms of the law (viz: to the judge) but the sense to be put upon them uncertain.

(a) Note

These causes may be deemed natural, within the limits of the differences produced by the idiosyncratic character of the individual: in each individual instance: factitious in so far as it may be within the powers of law /the legislator/ to provide an adequate remedy to those natural causes, by arrangements relative to the ----, mode of r-----ation, and mode of procedure /operation/ on the part of the judge.