10 May 1805

Evidence Introd

Introd.

Ch.5. Collateral Incidental

' 4. Vexation Shapes

Vexation per Judicum.

Vexation per judium. The natural course is for bringing about the appearance of the Source of evidence - the man, thing or script, in the presence of the judge, the natural course is that the source of evidence should move to the Judge: - not the Judge to the source of evidence. The most natural? shy? - because in general the most convenient. Cases however are not wanting in which it is the least convenient: nor others (witness land and houses) in which it is impossible. In those of the former class therefore, convenience; in those of the other, necessity, ordains that it shall be the Judge that shall move to the source of evidence. Whether then it be for convenience or through necessity, in cases of this description the question of adduction[?] (sciliert[?] adjudium) vanishes out of the list[?] of physical means of forthcomingness, and that of visitation per judium takes its place.

In this case as compared with that of adduction, the vexation, whatever it might have been, ceases: or if it ceases not entirely is transferred from the party to the Judge, to whom it is made up /compensated/ for by the advantages attached to the /his/ office.

Vexation is not only in itself an evil, but it operates as an official cause of ulterior evil: of a /the/ sort of evil opposite to the other ends of procedure /the system/. By disabling or deterring men from coming forward in the character of prosecutors or plaintiffs, it exempts delinquents from punishment, deprives the injured of the benefit of satisfaction, deprives possessors of other inchoate and as yet ineffective rights of the faculty of rendering them consummate and effective and thus it become pregnant[?] with those evils that stand opposed to the direct ends of justice: by disabling or deterring men /a man/ from standing their ground in the character of defendants, it subjects them to obligations of all sorts, howsoever undue: to the burthen of suffering punishment, where undue, of rendering satisfaction where undue, and to the burthen of obligations of all sorts corresponding to rights unduly claimed by a plaintiff, and for his benefit, and at the charge of the defendant allowed and converted into consummate. And thus it becomes pregnant with those acts which will presently[?] be seen to stand opposed to the ultimate collateral ends of justice. See further in Ch. Ulterior Ends.