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13 Jan y 1807 Appeal &c By
13 Jan y 1807

Appeal &c

By appeal, taken in the largest sense of the word, the cause is ultimately as for the time at least, taken out of the hands of the primary Judge: if to any good, it might be, in the way of remedy to /against/ some misconduct, the result of some unfitness, on the part of the Judge.

This unfitness if it exists will shew itself in one or other of two shapes: partiality, or unskilfulness. partiality, the result of an imperfection in the moral part, unskilfulness the result of an imperfection in the intellectual part, of his frame.

Suppose the Judge all-perfect, no sufficient reason, not so much as any good reason for appeal can be found.
Similar Items
  • Title: [13 Jan y 1807 Appeal &c Grounds]
    Description: 13 Jan y 1807

    Appeal &c

    Grounds - just /useful/ and reasonable grounds for the observance of appeal may be sought /found/ for in the nature of the cause /case/ suit/ but still they will be found referable to that causa sine quâ non of the property of the institution, relative unfitness on the part of the Judge.

    These grounds may be comprised in three words: /comprehended under three heads:/

    1. Difficulty of the cause

    2. Importance of the cause

    3. Danger of diversity in the decisions of different Judges in the same point: diversity from whence result on the part of the law[?] complication, uncertainty, incognoscibility, inefficiency i.e. incapacity of fulfilling /producing[?]/ the good purposes /effects/ of which if complied with, (which it can not be any further than as it is known) it might have been productive

    The difficulty of the cause bears reference to the article of unskilfulness on the part of the Judge: no unskilfulness relative unskilfulness /intellectual weakness/ on the part of the Judge, no difficulty in the cause - nothing is hidden from /abstruse to/ omniscience: nothing is difficult to omnipotence.

    Difficult or not difficult, the more important the cause, the greater the mischief of /from/ misdecision, supposing it to take place. To difficulty corresponds the probability of the mischief; to importance the magnitude of it.
  • Title: [13 Jan y 1807 Appeal &c 3.]
    Description: 13 Jan y 1807

    Appeal &c

    3. The danger of diversity has again respect[?] to the article of unskilfulness on the part of the Judge. Unskilfulness, not however on the part of this or that individual Judge, as compared with this or that other, but on the part of all human beings, and thence of all human Judges. Suppose every Judge all perfect, and on each given occasion (the occasion perfectly the same in all its circumstances) the decision pronounced by each Judge, would not, perhaps at least might not, vary a hair's breadth from that of any other. But all human Judges labouring under intellectual weaknesses, hence where Judge A decides so and so, Judge B. will decide in a manner /way/ more or less different.

    But from individual decisions general rules are by those who have the opportunity of being acquainted with them, naturally and generally formed: and these rules in so far as statute law has been silent, supply the place of it, and, from per tanto the matter of jurisprudential or as men say in England Common Law.

    Thus it is that, partly from intellectual infirmity on the part of the Judge, partly from the like imperfection of those whose occupation it is to watch his operations and his discourse[?] in the view of framing by the power of their own imagination a correspondent portion of the rule of action for their own use and that of such others as /to whom it may happen to/ come to them for advice, decisions and supposed /imaginary/ rules of law deduced from them are liable to become different, to vary from each other, even where the case is in all it circumstances the same: and this probability will increase with the relative difficulty of the case, that is with the relative unskilfulness of the several Judges.
  • Title: [13 Jan y 1807 Appeal &c Danger]
    Description: 13 Jan y 1807

    Appeal &c

    Danger of diversification proceeds from unskilfulness attached to human infirmity.

    Importance may be considered with a view /in a point of view confined to the individual cause in question, and therein, in respect of interest, to the interest of the individual parties to that individual cause, or extended to the effect that may be produced by the individual decision in question in succeeding causes, and the interests of the parties to those causes: importance per se, importance in the way of precedent.