17 March 1808

Letter V

§.6. Reasons

Ends of Justice

II. Non-Decision Causes

II. Causes of Non-Decision in the case in which it operates to the prejudice of the Plff's side as a cause of failure of justice.

To operate in this way, and that to a certainty just as misdecision to the prejudice of the Plff's side would do, the duration of the negative act thus designated must be, by the supposition, perpetual: otherwise the result of it is but delay: in which case though effects tantamount to those of misdecision, effects in consideration of which the party may be said to have lost his cause, are among the probable, and frequently they are not among the certain consequences. See Table │ │ Mischiefs of Delay.

This is among the cases in which the failure of justice is seen the most distinctly to come under the description of a denial of justice: the failure having so decidedly for its cause a misconduct on the part of the Judge.

By the term Non-decision the existence of a demand, i.e. of some act or other of the number of those by which a suit is understood to have been commenced, seems, by necessary implication, to be supposed.

In this case, to the two portions of incidental mischief which in the shape of vexation and expence would, in case of mis-decision, have operated in aggravation of the principal evil, is to be added a further lot of vexation the length of which has for its initial point the moment at which decision {after having been} pronounced ought to have been {carried into effect} and for its final point the moment which gave death to hope.