2 May 1805
Evidence
Introd Ends
Ch
'. Quality
Yet even here the substitution, grievous as it is is not be confounded with pure addition: the ten stripes plus the fine to the value of the ten weeks labour would have been still worse. By the suffering /what he suffers/ in person, a man saves the amount of what he ought to have suffered in purse. Assign to the corporal punishment any value in money how great soever, any number of Fortune[?] Ricard's[?] castles of gold the value of ten days labour subtracted from it will always leave it so much less than it would have been otherwise.
The Judge is disobedient: but his disobedience is not quite so enormous, as if along with the corporal he had inflicted the pecuniary punishment besides.
The legislator says - inflict a whipping of ten stripes. The Judge inflicts a fine to the the value of ten weeks labour: What is the consequence? The convict acted under the instigation of a rich confederate: who gaining by the offence ten times the value of the punishment /fine/ thus annexed to it, the [...?] to the hand that committed the amount of the fine, and triumphs over the law. The arrangement is as inconsiderate as it is a common one: but a hundred days labour minus ten days labour is less than a hundred days labour undiminished.
The Judge is disobedient: but his disobedience is not quite so enormous, as if instead of a fine to the value of the ten days labour he had inflicted no punishment at all.
Rule for estimating the enormity of the transgression committed by the Judge, by one[?] aberration in respect of quality. Reduce in idea, by /according to/ the best of your judgment (your best judgment will commonly be but a random one) reduce in idea the two lots /quantities/ to the same species; and from the greater deduct the less: the difference will be the amount of the aberration, the measure of the transgression. The operation is but a make-shift, but the nature of things affords nothing better.
23 April 1805
Evidence
Ends
Ch Conflict
'. Conflict
Alterr[?] from the Marginal Contents
'. Ch. Conflict between /amongst/ the abovementioned ends
That between /amongst/ the the several objects above announced in the character of ends - of ends of justice, that is between the pursuits respectively directed to those objects, there naturally and unnecessarily exists a certain degree of natural continuity[?], is manifest at first sight. If to the positive, though limited, quantities expressed by the epithets unnecessary and preponderant annexed /attached/ to the names of the respective evils - vexation, expence &[?] delay evils we were to substitute the absence or negation of those several evils the pursuit of these collateral ends would thus be rendered altogether incompatible with the pursuit of the main or direct end - fulfilment of the predictions delivered by the substantive branch of the law. All procedure, how summary and expeditious soever supposes some delay - i.e. some time spent /employed and consumed/: all procedure supposes some vexation, all procedure supposes some expence, or at least some consumption of time and labour, an expenditure which is the equivalent of some expence. If, without regard to the main or direct end, and the mischief that would ensue from the neglect of it, the collateral end in those its several branches were to be exclusively pursued, there would be one, and but sure course for the attainment of it, viz /and that is/: to relinquish the pursuit of the main end altogether. Give up all recourse to justice, you rid yourself at once of all the inconveniences that result from the recourse to justice. The whole fabric of Society it is true is dissolved, and the humane race extinct, or thrown[?] back[?] into[?] the savage. The species is either destroyed or ruined: but at that price, the evils incident to litigation are done away.
23 April 1805
Evidence
Ends
Ch Conflict
'.1 Conflict
Alter from the marginal contents
But though for the purpose of preventing /in every case/ the existence of delay vexation and expence incident to litigation in every case, the determination to take away in every case all recourse to justice /the judicial power/ would be thus absurd and ruinous, yet the opposite determination directly opposite viz: to carry on the recourse of justice - to bring about in every individual case and in every individual part, the fulfilment of the several articles of the substantive branch of the law without any regard to the quantum of collateral inconvenience, in the shape of delay, vexation and expence, would not be much less so. The mischief attached to the non-fulfilment of the arrangements taken and predictions delivered by the substantive branch of the law is variable upon a scale at both ends little short of infinite - is susceptible of an almost infinite number of degrees: the mischief liable to be produced by juridical delay vexation and expence is also variable upon a scale of prodigious /vast/ extent, though not quite so nearly approaching to infinity as in the former /preceding/ case. Under these circumstances it must every now and then happen[?] that in this or that individual case, the mischief resulting from the aggregate mass of collateral inconvenience, or even from a single one of its three /those its/ branches will be superior, and that beyond dispute to the good resulting from the pursuit of the main end - to the mischief resulting from /attached to/ the abandonment of it.
23 April 1805
Evidence
Ends
Ch Conflict
'. Conflict
So again as between the main end the positive main end, and the negative main end corresponding and opposite to it, the charge of the person placed in the situation of defendant, take the measures requisite for giving effect to the arrangements taken and predictions delivered in that behalf by the substantive branch of the law, you run the risk of imposing the obligations /throwing the burthens/ respectively in question[?] upon the person in whose instant they are under: of inflicting punishment on a person /defendant/ innocent of the imputed offence - of imposing on a person the burthen of rendering satisfaction for an injury on the infliction of which he has had no share, of imposing, on some person in the character of defendant, in consequence of the right conferred on the demandant or plaintiff, an[?] obligation which in his instance /when thus imposed upon him,/ is undue. Determine at all events to preserve men altogether from all risk /[...?]/ possibility of being unduly subjected to these disastrous obligations, there is one means by which you may succeed to a certainty, and there is but that one way in which you can succeed - which /and that [...?]/ is the course already pointed out in the former case the putting an end to all recourse to justice. Its /The/ main[?] species as before is either destroyed or ruined: but at any rate the innocent are preserved from all danger of legal punishment, and mankind though left[?] a prey to injustice from every other source, is preserved from all that injustice which has for its source the execution of the law.
24 April 1805
Evidence
Ends
Ch. 4 Conflict
On the occasion /subject/ of this double conflict, the following differences may be remarked /present a claim to notice/
In regard to the conflict between the collateral end (which is always of a negative cast /complexion/) and the direct positive end as often as it really takes place, the opposition /two pursuits/ /opposite/ will be irreconcilable; of one or other object a sacrifice must be made. Without the production of some degree of delay, vexation and expence the main object, as already observed - the fulfilment of the article of substantive law in question whatever it, whether by infliction of punishment, administering of satisfaction or collation[?] of right, can never be accomplished or so much as aimed at: on the other hand, in some instances so it will be, that the collateral object, where it happens to be the preferable one - the avoiding to produce the necessary mass of delay vexation and expence where it happens to be preponderant can not be obtained, unless in the instance in question, the main object be utterly abandoned. /compleatly given up./ The object in demand /article demanded/ is of the value of a days labour: the testimony of Martyr is necessary to prove the plaintiffs title to it. If the abode of martyr be but a minute or two of a degree the vexation and expence produced by his attendance in the character of a witness may not be preponderant; and so far the two conflicting ends of judicature, the direct and the collateral, may in a certain degree be reconciled. Place Martyr at the antipodes, all reconciliation - all compromise - is impossible. l Either the claimant must lose his right altogether, or the witness must be loaded with such a mass of vexation and expence, that in comparison of it the burthen imposed upon the plaintiff by the loss of his right, is but as a feather[?] to a milstone[?]
24 April 1805
Evidence
Ends
Ch Conflict
To make for the reconciliation of these rival ends the best provision which /such provision as/ the nature of things admitts of, requires a certain range /extent/ of thought: a qualification of which the demand is every where, the example no where. Of all men possessing or claiming the character /appellation/ of a man of science, the narrowest in his views is the man of law. AS /Compare on this ground/ /[...?] together/ the mole is to the eagle[?] so is the man of law to the natural philosopher: if in Bacon we see an eagle, in Coke[?] we may see a mole. AS the mole is to the eagle, so is a Coke to a Bacon, so is the man of law compared to the natural philosopher/surveyor of the works of nature/, better named[?] by the French the physiciens[?]
For the adjustment of these difficulties /contrarieties/ no symptoms of /scarce a symptom of/ thinking is any where discoverable among lawyers, or (such as legislators have every where been landlords[?]) among lawyer-led and lawyer-ridden legislators: always /on every occasion/ the main end pursued without a thought about the collateral, or the collateral without a thought about the main end about its antagonist. Particular examples of this will be seen, when under the head of Exclusion of evidence, we come to speak of the narrow and almost unheeded[?] class of cases in which that sort of arrangement may be dictated by preponderant utility.
But in a system of oversights and negligences /imperfections/ /deficiencies/ it will sometimes happen that one /the mischief /effects[?]/ of one/ oversight or one negligence, will be lessened[?] by another /corrected by another/: accordingly in the article of extent of local jurisdiction we shall find the impotence of the man of law setting limits to the vexation that might have been produced by the blind pursuit of the main end with its attendant perquisites, without regard to the collateral end. /If/ To give testimony about the value of a sucking pig or a days food for a horse a man could not be brought from the antipodes, why was it? not because any body cared about the vexation /the vexation was ever thought of/, but because the process for the summoning of a man to [...?] and give his testimony had not been framed so as to /originally framed to/ reach to any such distance.
24 April 1805
Evidence
Ends
Ch. Conflict
To squeeze every part of the earth that was not England into a space /parish/ of two or three minutes of a degree square in England had cost these[?] scientific /artists/ no more than it does the Chinese to squeeze into one of the corners of a square map every part of the earth that is not China; but though the compression /condensation/ had so effectually been performed for the /certain/ purposes, it had never happened to be performed for this purpose.
In the instance of the conflict /conflict/ between the direct ends and the ultimate collateral ends, the opposition is not thus irreconcilable /no such incompatibility takes place/. The /positive/ direct end may be provided for, and the negative direct end not neglected: the whole system of procedure has for its main object the reconciliation of these contending pursuits /objects/: the attainment of the one positive end without prejudice to the negative end. Were the positive end the only one, neither witnesses or parties would be heard but one side only: it is for the sake of /with a view to/ the negative end that they are heard so far as they are heard + also on the other side.
+ Infra
[058-126]
May 1805
Evidence
Ends
Ch. Conflict
This opposition between the two classes of ends is a matter of no light moment: speculation? but that sort of speculation that is not mere speculation : it has had no small influence in practice. Upon no firmer a foundation has that immense fabric of abuse been erected which in the course of this work there will be but too much occasion to delineate.
Without vexation, expense and delay, misdecision - misdecision to the prejudice of the defendant's side - can not be guarded against: therefore vexation, expense and delay are conducive to the ends of justice: pursue the one class of ends and you must pro tanto abandon the other: the more zealously you pursue the one, the wider? your deviation from the other. Vexation, expense and delay constitute the price you pay for justice: avoidance of misdecision being the end that which on the present occasion stands as the representative and substitute of all the ends of justice. The higher the price, the better the commodity: the better the commodity the higher must be the price: and a converse the higher the price, the better will the commodity be.
If this be good reasoning as applied to justice , try it upon bread . A penny is the price I paid for the loaf I have before me. The loaf I am about to breakfast upon: instead of a penny, had I paid twopence for it, the quantity of nourishment contained in it would have been double. Are men convinced by such arguments, or do they only pretend to be so? Are they the offspring of imbecility or of improbity? In whatever mint they originated, such is the reasoning that pass current under the names of Montesquieu and Blackstone.
May 1805
Evidence
Ends
Ch. Conflict
' Practical?
That schism[?], such as it is, is the stronghold of that system of procedure, which we shall have occasion to mark out for merited public indignation, under the name of the technical.
We shall then see in a further point of view, the importance of the epithets necessary and preponderant, but particularly of the epithet necessary, employed for applying the limitation of description of the incidental ends of procedure: avoidance of vexation, expense and delay in so far as not necessary and where preponderant.
In every instance, to the avoidance of misdecision, a certain increase of vexation, expense and delay is necessary. Such on every occasion is the plea of the man of law in favour of the quantum, for the measures of those evils to which on that occasion he has given birth. Yes vexation, expense and delay are necessary: yes in a certain quantity, on every occasion, they are all necessary: but the quantum to which on this or that occasion you have introduced /given birth/ is it on the whole? and without distinction or deduction necessary? if it is sois what you should to prove. That they are all of them, and every particle of them so much evil, is too evident to bear denial: to introduce evil is an operation necessary to all government: but on every occasion in which any particle of it is either introduced or suffered, two propositions require to be made out by him by whom it is introduced, suffered or descended: that the good, for the sake of which the evil is introduced or suffered is with reference to the evil preponderant in value: and that to the purchase of the good, the evil is necessary to the purchase of the good.
May 1805
Evidence
Ends.
Ch. Conflict
' Practical
You send your servant out on a journey: five pound would have conveyed him out and home, and he brings you in a charge of fifty. Would the account be sufficient were he to say to you Sir, expense is necessary? Yet such is the account which the public has the goodness to accept from so extensive and expensive a class of its servants.