date

13 Jan y 1807 Appeal &c 3.
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.
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  • 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 By]
    Description: 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.
  • Title: [21 Apr. 1808 Letter V Ch. Appeals]
    Description: 21 Apr. 1808

    Letter V

    Ch. Appeals

    There are ways in which on the [...?] of justice, it is desirable that in this stage as in the /every/ anterior stage, suits at law, termed in the aggregate litigation, [...?] be prevented, and to the [...?] extent possible.

    1. In so far as the suit has an [...?] [...?] for the cause, the uncertainty of the law /rule of action/ giving to it /providing it with/ a determinate form of words, for the expression of it, if as yet it has no such receptacle, [...?] reducing /transmuting/ it from out of the form of jurisprudence law imaginary law rule[?] statutory, the only real law: or if already it be in the form of real law and substituting to the ambiguous or obscure expressions in which the uncertainty has its seat[?], such as shall be clear and determinate /unambiguous/.

    2. In so far as the uncertainty has for its seat the question of fact, doing what depends on the legislator, and that[?] without Imprudence [...?] in other stages can be done towards giving notoreity to all such facts /matter of fact/ as an [...?] and fitted by their nature to [...?] as grounds either for individual demand or juridicial defences: ex [...?] [...?] the fact of his having entered into a contract to this new[?] effect of a mans having committed an offence if there is that description and so forth.

    3. In so far as the suit has in the stage in question [...?] that of appeal has for its cause any failure[?] if incompleted - in the case of the Judges want of appropriate harmony, want of intellectual skill discernment, want of the faculty of decision, want of [...?] /want of propriety[?]/, taking such measures as the nature of the case admitts of for as for instance of each Judge the marks[?] of the sword[?] [...?] thus desirable on the part of every Judge: partly by provisions[?] respecting the choice to be [...?] of [...?] for this office, partly by the application of by means of such apt space[?], guides and [...?] as the nature of the case admits of.