JB_082_081.xml

Title: [16 March 1808 Letter V §.6]

Description: 16 March 1808

Letter V

§.6. Reasons

Ends of Justice

Failure of Justice

Misdecision

1. Causes of Misdecision considered as productive of Failure of Justice: and thereby of injustice to the prejudice of the plaintiff's side.

Of the several causes by which failure of justice is capable of being produced, misdecision is the most obvious and most prominent.

Of misdecision, though the appellative and the exterior act designated by it be in both cases the same, yet the nature of the evil produced, is (as hath already appeared) altogether different according as the side to the prejudice of which it operates is the plaintiff's or the defendant's side.

At present the side in question is the plaintiff's. Misdecision bears reference to and supposes rectitude of decision. Rectitude is the property predicable of the decision in so far as it has the effect of giving effect and execution to such of the ordinances of substantive law as apply to the case. Rectitude of decision being the positive denomination, avoidance of misdecision is a negative expression designative of the same result. Either may be employed to designate the secondary end of judicial procedure, or end of justice here in question.

Rectitude of decision supposes a standard of rectitude. In the case where the rule of action has been put into the shape of statute law, it is of the text, i.e. of the words of that law that the standard of rectitude is composed. In this case the law is in respect being laid, genuine and legitimate: the standard constituted and presented by it really existing, being composed of a determinate assemblage of words: those words, chosen, or after choice, approved either immediately by the sovereign himself, or intermediately by some person or persons exercising by his permission, express or tacit, the authority of making laws under the name of laws, expressed by so many determinate assemblages of words.

JB_094_468v.xml

Title: [[094-468v] 6 March 1808 on]

Description: [094-468v]

6 March 1808

on L d Eldon's Bill

Note

Letter V

'.3. Reasons

Ends of Justice

Table of the Ends of Justice, /being the/ or legitimate and proper highest ends of judicature: to the attainment of which in the possible degree of perfection, the proceedings of all judicatories ought to be continually directed

1. Ends of the first Order: being the pursuit of which is prescribed by consideration of immediate /direct/ utility - utility not depending on the subservience of these to any other ends.

Postpone

The pursuit of these ends falls /lies/ within the competence /functions/ of judicatories of all stages. vis. as well appellate /of appellate jurisdiction/ (in any numbers above another, as if immediate:

1. End the 1 st. the direct ends of justice.

1. Direct end. Positive denomination Rectitude of decision. viz. in the case where the decision, any /a/ right decision, will operate in favour of the plaintiff's side of the cause.

Negative denomination avoidance of misdecision. to the prejudice of the plaintiff's side: misdecision to the prejudice of the plaintiff's Side is the evil correspondent and opposite to this first and direct end of justice.

That part of the body of the law /whole body of the law/ - the hour[?] of which constitutes to this purpose the standard of rectitude as the reason or substantive branch: the branch with which /reference to/ the system of judicial procedure is the adjective branch. So far as the rule of action has been invested with the form of real law, i.e. statutory sanctions /(improperly/ called written) law, it is of the text of the real law that the standard of rectitude is /what must to this purpose be considered as/ all along composed. Where it /the rule of action as yet/ remains in the form of imaginary law viz. jurisprudential improperly called unwritten and uncharacteristically called common law, law which not having any determinate assemblage of words belonging to it, has therefore no other than an imaginary and fictitious existence, the standard of rectitude is of course /necessarily/ imaginary: it is composed of the supposed purport of a set of regulations which in fact have, never been made. In this case, these[?] being no real standard of rectitude, neither rectitude of decision nor misdecision, can in strictness of speech be said to have place.

JB_082_082.xml

Title: [16 March 1808 Letter V §.6]

Description: 16 March 1808

Letter V

§.6. Reasons

Ends of Justice

Misdecision

In the case and to the extent, of jurisprudential law this standard is [in] respect of its source spurious, in respect of its existence imaginary and fictitious. Spurious, because whatsoever may be the will expressed by it, is the will not of the sovereign but of the Judge: imaginary and fictitious, it being the characteristic and distinguishing property of the rule of action in so far as it is in this form to have no determinate and assignable assemblage of words belonging to it:

In this case, the nature of the case affording no fixt standard of rectitude, every thing being fictitious, it is only in the way of fiction, and by pursuing the original fiction, that any such terms as rectitude of decision or misdecision can be employed. Not that by the unreality of the standard, the mischievousness of the decision, is, in case of misdecision, that is of a bad decision, in any respect a degree lessened. In the form of vapour, a sort of succedaneum to a fixt standard of rectitude is as it were distilled, from a sort of waste, of which particular decisions compose the principal part of the ingredients.