19 March 1808

Letter V

§.6. Reasons

Ends of Justice

Injustice v. Defend t Causes

III. Non-Defence

3. Non-forthcomingness on the part of the evidence: viz. of the evidence necessary to prove the facts which, if proved, would constitute the matter of the defence.

4. Want of a power ab extrâ in other shapes, adequate to the effectual support of the defence: and in particular want of the pecuniary power necessary to the defraying of the expence.

5. Want of ultimate will, adequate to the endurance of the expence added to the vexation attached in other shapes to the course of operations necessary to the purpose of defence.

This requisite will naturally be wanting and in general, on point of prudence, ought to be wanting, as often as it is understood that the neat expence attendant on defence even if successful, will be greater than the amount of the loss that would be produced by a compliance with the demand however unjust.

Factitious causes of Non-Defence when the result of it is injustice to the prejudice of the Defendant's side.

See above, d o of Non-Demand.

It is in this way that under Scottish as well as English procedure, but to a greater extent under English, the great majority of the community are placed under the yoke of the tyrannical part of the remainder, being exposed without remedy to oppression by groundless demands or prosecutions: oppression, viz in the shape of simple oppression, or of extortion, with or without ulterior oppression, as the case may be.