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4
Explanations to
Critique on Blackstone (4
(7)
In the same place he Another insinuation is
insinuates</del (for insinuation
is the perpetual vehicle
of his endless indefatigable
misrepresentations)
that in English procedure
re rique (testimical procedure) (meaning always
the historical branch) mere
"time and circumspection"
are bestowed, than under
natural procedure, as
pursued in England and
other countries. Time,
yes: circumspection, quite
the contrary. if by circumspection
inflection<d/el> thought is
evident, quite the contrary no such thing.
It is the characteristic of
Jury-trial to render the
continuance of t thought
beyond a portion of one for more than a fragment of
a day, impossible; and
of the whole number
of cases terminated
determined in under that system
not so many as one in
five are ever heard, or
receive so much as a
single moment's thought from any
one of the Judges, by whose
authority they are disposed
of: so that in fact Taking the whole
number of causes together,
not only the worst Justice
of Peace, but the worst
Judge Turkish Judge,
bestows more thought upon
the causes determined by
him that the best English
Judges Judge upon at least speaking
Common Law Judges.
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continued (5)
(8)
It is by time itself, <add>It is by time itself, if the
insinication were taken for truth —
and not by (he would by time itself and although
have us think) by time nothing at all evidence in
it — by employed him
itself, and although that is by superabundant
delay in superabundance,
nothing at all done
it, that the justice is <add>it by superabundance that Justice is served
and his wish duly executed.
Such delay that Justice By him, according to Blackstone,
is served. But as it so
is served</add> But, accordingly trouble is it so? By time employed
in thought, yes:
by time necessary necessarily employed for the
collection of evidence, yes.
by time allowed along given
along with means and motive and
<del. given to the public
mind , it collects its mind, that your importance
mind to other questions
it may collect its force</add>
and point it to the cause, to force serve as
a guard to the probity of the
Judge, before the last fatal
decision has been pronounced
here too we may
pronounced answer in the affirmative.
But under the English technical
branch of the English system, on all
this account, <del. the
necessary quality of time
is cut short either
denied or if
received at the hands of the
received from the negligence
of this system, neither then
its
allowed, allowed by negligence,
rather than by
Right
Table IV. Ambiguous<lb/.Causes of Delay:
i.e.
productive of Delay
which may be unavoid
which prudentially f
which in the prudential
sense, may be unavoidable,
or avoidable, according
to circumstances.
be avoidable unavoidable
or avoidable.
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Three Ambiguous + Causes (1)
(1)
Among the actually operating</add. causes
of complication and delay
there are three which —
though they could not well
be <add>have been inserted in either Table
are too important to be passedover, in silence. These are 1. Time taken for reflection by
1. Time for reflection on the
part of the Judge
2. Multiplicity of Judges
2. Multiplicity of Judges.
3. Appeal, and the other ready
3. Appeal, Together with the other
of the Modes by which the
consequence of a suit may be and
conveyed from a subordinate to a
superordinate act.
(a )
1. In each individual suit
cause — and on every occasion
that presents itself
in the course of that suit,
a certain quantity of
delay will for the purpose
of due reflection be
necessary and unavoidable.
But to this necessary delay quantity
the quantum amount<a/dd. of it not being
susceptible of fixative by any
certain rules, an indefinite
quantity of unnecessary and
factitious delay may
come happen to be added
by the improbity or imbecillity
of the Judge. In
so <add>So far as this cause is concerned,
the boundary lies
between avoidable unavoidable and
avoidable delay, is plainly
incapable of being drawn,
by any general form of words.
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of Delay + (2)
(2)
2. Multitude of Judges
is productive of Delay, (as
stated in Letter 1st) in a
variety of ways, of which
the most obvious are — theneed there is demand for such a
quantity of time to be allowed for
reflection, as shall be sufficient
for the slowest mind,Lb/>mind in the company, and
for such ulterior quantity
as may be requisite for
discussion and debate.
As to this point, that<lb/.the practice of putting Judges together in
a multitude is not physically
unavoidable, is
manifest, since in many
instances it actually is
avoided. As to the prudentiality, it is matter
of dispute. In Letter 1st reasons may be seen in
favour of the negative.
3. As to Appeal a— and
the other modes in which
the superintending & authority
of a superordinate
Court may come to<a/dd> be applied,<lb?>to a suit originally
commenced in a
subordinate Court — the
operation of this institution
in the character of
a cause of complication
and delay is equally<d/el> <add>alike
obvious and indisputable.
In a the physical sense this cause a delay thus produced is
also avoidable, — since
in England as well as in Scotland
in many ,/del> the greater
number of individual suitsin England as will as Scotland
it actually is avoided.
As to the prudentiality
of it, this sure too it is
Matter of dispute, and
be stated in different and different cases, as may be seen in Letter v.
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IPING 1804 |
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Bernardino Rivadavia |
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Letter 1929, vol. 7 |
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