JB_106_097.xml

Title: [10 March 1807 Judicial Justice]

Description: 10 March 1807

Judicial Justice

Letter V

I. Shapes

1. Misdecision

Under statute law every point relative to the words is determinate and not of dispute: what they are, whose they are, in what part of the rule of action, on what occasion delivered.

Under jurisprudential law, the question of law is still resolvable into a question concerning the import of words. But here any point relative to the words is indeterminate and liable to become matter of dispute: what they are, whose they are, or what part of the rule of action, supposing there were one, and on what occasion delivered. In what part of the rule of action supposing any such thing to exist: but here the fundamental misfortune is that no such thing has any existence.

Under Statute law it may happen that the rule of action itself, the article of substantive law in question will be recognised to be erroneous, when compared with the ideal standard of rectitude, composed of the dictates of general utility and natural justice. When any alledged instance of misdecision is presented to the notice of the supreme judicature, if it reside in the same hands or in any part of the same collection of hands as the supreme legislature, here will be an occasion in which, whatsoever be the fate of the judicial decision, amendment may be given to the law. But of this in another place.

093-205.xml

Title: [4 Jan y 1807 Scotch Reform │ │ To]

Description: 4 Jan y 1807

Scotch Reform │ │ To L d Grenville

III Facienda

Causes mostly short

Codification necessary.

So far as concerns the question of law, to afford the people in their character as suitors, a real security against misdecision there is but one course - and that /which/ is to give them in every part of /throughout/ the rule of action - to give them for their information and guidance in it - to give them so much real law. This real law - if it were what /made as it/ ought to be and easily might be - being made for the information and guidance of the people would have in it no other words than such as formed part of /belonged to/ the language of the people: or it, to save circumlocution it employed here and there a word not currently employed by them on other occasions, or to other purposes, still these abridged denominations would in the very text of the law some where or other, once for all, receive their explanation in words really belonging to the language of the people - already familiar to their ear. (But in such case what room would there be for any recondite, peculiar science? /legal learning or knowledge?/ for any thing that in a lawyers sense could receive /bear/ the appellation of science. All there is to be known is composed of /is expressed by/ the words of the legislator: and they are /lie/ all of them as open to the eye of the non-lawyer, as to the eye of the lawyer. to the eye of the suitor as to the eye of the Advocate or the Judge. Should the expression /In this or that particular article or articles/ fail in any respect of possessing the desired degree of clearness - in the sense /will and meaning/ of the legislator left to be aimed at /sought after/ by the conjecture, sill there is no more room for peculiar science than if the meaning were ever so indubitable: the reasonableness of the chance of rectitude on the part of the conjecture will in each instance depend - not upon science, but upon good sense.

JB_106_096.xml

Title: [10 March 1807 Judicial Justice]

Description: 10 March 1807

Judicial Justice

Letter V

I. Shapes

1. Misdecisions

As decision, so may misdecision, have for its subject either the matter of law or the matter of fact.

The distinction is of cardinal importance: the remedies in the two cases actually applied, wearing such different aspects, and the propriety of them turning on such different principles. Of this afterwards.

Under the imaginary and spurious kind of law which there is such frequent need to mention by the name of jurisprudential law, the distinction between matter of law and matter of fact is a subject of the most perplexing intricacy. This will be discussed in another place.

To obtain a clear idea of the distinction, recourse must be had in the first instance to real, to genuine, to statutory law.

Suppose, for supposition's sake, the rule of action to be, in the whole of it, in the form of statutory law. In this case the question of law is in each instance a question concerning the import of words: a question concerning the import of a determinate word or collection of words, either immediately following one or other, or to be found in different parts of this all-comprehensive code.

In this same case, the question of fact will, on each occasion, be whether in that instance on the individual occasion in question any such state of things had place as is designated by the collection of words so composed: if there be but one proposition that applies to this case in question, i.e. the number of words of which that proposition is composed (a less number of words than those which suffice to constitute a proposition there can not be) whether any such state of things has took place as is indicated by that proposition taken by itself: if there be several such propositions, then whether any such state of things took place, as stands expressed by all those several propositions, taken together.