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<!-- date, heading and marginal notes in pencil --> <p>20 June 1804</p> <head>Procedure</head> <p><note>B. Revision<lb/> <sic>Ch.</sic> Removal</note></p> <p>(1 <note> §§. <unclear>Single</unclear> Law <foreign> | <!-- date, heading and marginal notes in pencil --> <p>20 June 1804</p> <head>Procedure</head> <p><note>B. Revision<lb/> <sic>Ch.</sic> Removal</note></p> <p>(1 <note> §§. <unclear>Single</unclear> Law <foreign>Certiorari</foreign></note></p> <p>§§. <del>Of</del> Removal from an inferior Court to a superior <add> before <sic>judgment</sic></add> <!-- bracket in pencil --> [by<lb/> <foreign>Certiorari</foreign>]</p> <p>The barbarity of the practice indicated by the word <foreign>Certiorari</foreign> is<lb/> <del>well asserted</del> <add>altogether of</add> a piece with the barbarity of the language.</p> <p>Rapacity the motive, vexation, expense and delay, oppression in<lb/> every shape the result.</p> <p> From a provincial situation 300 miles distant, a cause<lb/> is called <add>removed</add> up to the metropolis: called up <add>removed</add> not for any special <add>without the necessity of</add> <lb/> reason, called up <add> removed</add> at the mere pleasure of either of the parties.</p> <p>To judge of the utility of the institution, compare it with<lb/> that of appeal. <add>Supposing</add> If <add>the institution of</add> <hi rend="underline">appeal</hi> be an ineligible one, much<lb/>more so must removal by <foreign>certiorari</foreign>: and even admitting<lb/> <del>the institution of</del> <hi rend="underline">appeal</hi> to be eligible, <foreign>certiorari</foreign> will remain<lb/> <add>not the less</add> indefensible.</p> <p> In the Court below either there is that <del>chance for</del> <add> probability of</add> justice which<lb/> is sufficient to warrant the establishment of that local judicature<lb/> or there is not: on the affirmative supposition it ought not<lb/>to have been instituted, and <gap/> in that case the removal in<lb/>question would have no place: on the negative supposition, the<lb/> removal is without just cause.</p> <p> Either the institution of the Court is a nuisance, or the<lb/><gap/> <gap/> struck upon its authority is a grievance. In this<lb/>case, the effect of it is pure oppression: it <del>enables</del> operates as<lb/> a licence to tyrannise over the poor.</p> <p> If both parties <add>the case happens to be such that</add> <del><gap/></del> act <foreign>bona fide</foreign> each thinking justice<lb/> on his side. . or though one of them be <add>not</add> <foreign>mala fide</foreign> <lb/>if <del>to</del> either he is not rich enough to oppress, or his adversary is<lb/> not poor enough to be oppressed, in any of these cases the institution<lb/> is not mischievous. Why? because things go on just as they<lb/> would have done had no such institution been established. Both<lb/> parties agreeing in <del>the</del> abiding the decision of the court below: neither of them <!-- continues in margin --> has recourse to a <gap/><lb/> for removing the cause to the<lb/> Court above.</p> | ||
20 June 1804
Procedure
B. Revision
Ch. Removal
(1 §§. Single Law Certiorari
§§. Of Removal from an inferior Court to a superior before judgment [by
Certiorari]
The barbarity of the practice indicated by the word Certiorari is
well asserted altogether of a piece with the barbarity of the language.
Rapacity the motive, vexation, expense and delay, oppression in
every shape the result.
From a provincial situation 300 miles distant, a cause
is called removed up to the metropolis: called up removed not for any special without the necessity of
reason, called up removed at the mere pleasure of either of the parties.
To judge of the utility of the institution, compare it with
that of appeal. Supposing If the institution of appeal be an ineligible one, much
more so must removal by certiorari: and even admitting
the institution of appeal to be eligible, certiorari will remain
not the less indefensible.
In the Court below either there is that chance for probability of justice which
is sufficient to warrant the establishment of that local judicature
or there is not: on the affirmative supposition it ought not
to have been instituted, and in that case the removal in
question would have no place: on the negative supposition, the
removal is without just cause.
Either the institution of the Court is a nuisance, or the
struck upon its authority is a grievance. In this
case, the effect of it is pure oppression: it enables operates as
a licence to tyrannise over the poor.
If both parties the case happens to be such that act bona fide each thinking justice
on his side. . or though one of them be not mala fide
if to either he is not rich enough to oppress, or his adversary is
not poor enough to be oppressed, in any of these cases the institution
is not mischievous. Why? because things go on just as they
would have done had no such institution been established. Both
parties agreeing in the abiding the decision of the court below: neither of them has recourse to a
for removing the cause to the
Court above.
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evidence; procedure code |
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jeremy bentham |
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