date

27 May 1807 ++ 12 (4 Letter
27 May 1807

++ 12 (4

Letter V

1. Plan

III. J.B. Remedies

Non-conformity of the Judge's decision to the will, declared or conjectual - (i.e. statutory law or jurisprudential) - of the sovereign power in the state - usurpation of judicature, as between this and that co-ordinate Court, or by a subordinate to the prejudice of the jurisdiction of its super-ordinate - ununiformity of decision, as between one of two co-ordinate Courts and another, or as between the same Court and itself at different times, on the same subject or species of case - these may be given as the several shapes in which judicial injustice of the second order may, in any country, be liable to manifest itself: injustice, in the present instance distinguished by the designation of injustice of the 2 d order - because, if of the modifications of injustice of the 1 st order, as above enumerated, none were mischievous, neither would any of these be mischievous.

To judicial injustice in these its secondary shapes, no remedies bearing any correspondent names appear to stand appropriated: other than these viz. 1. maintenance of the authority of the legislative or supreme power in the state over the several subordinate judicatures - +2. Maintenance of the course of decision in the several subordinate judicatures within the limits of their respective lawful jurisdictions - 3. Maintenance of uniformity in the course of judicial decision: as to the particular mode of operations on the part of the superintending authority towards these several secondary ends, whatsoever may in these instances be done by the supreme superintending authority towards the prevention or correction of them may be done partly by reversal or modification, partly if necessary (which on so high a level it is not apt to be), by punishment, including imposition of the burthen of satisfaction to the use of the party specially injured, when the case is such as to afford either an individual or a class of persons so affected.

Under the British Constitution maintenance of the authority of the legislature over the several subordinate judicatures receives a special designation, particular enough to be considered as constituting a distinct object; viz. maintenance of an[?] government possessed by the 2 d of the three branches of the legislative or supreme power, viz. the House of Lords.
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  • Title: [19 May 1807 14 (6) Letter V]
    Description: 19 May 1807

    14 (6)

    Letter V

    Plan

    J.B. Remedies

    put before this the modifications of judicial injustice [...?] viz. corresponding to the ends of justice with the addition of non-conformity and non-uniformity

    1. Maintenance of the authority of the legislature or supreme power in the state over the several subordinate judicatures - or in other words, Maintenance of the course of decision in each judicature in a state of undeviating conformity to the declared will of the legislator - 2. Prevention of judicial usurpation, or in other words Maintenance of the limits respectively set to the jurisdiction of the several subordinate judicatures. 3. Maintenance of uniformity in the course of decision as between the decisions of the same judicature at different times, and as between each judicature and every other as well as the same time as at different 4. Prevention of misdecision - of ultimate misdecision at least as effectually as possible, in the first part of the several subordinate judicatures:- 5. Prevention of unnecessary delay, with its natural and almost inseparable concomitants unnecessary vexation, expence and failure of justice - 6. Periodical receipt or collection of facts indicative of the state of judicature in the several judicatories, Court of Justice in respect of its subserviency to the several ends of justice as above enumerated.

    These five, if the enumeration I have made be correct compose in every country the list of distinguishable functions no one of which can, consistently with the ends of justice, be left unexercised.

    Under the peculiar constitution of our own Country the above list of remedial functions may I suppose be added on the part of the House of Lords, the second of the three branches of the supreme commonly called legislative authority in the state, the preservation of such its share: for, let its share in the supreme superintending judicial authority in matters of judicature be for argument sake {be supposed to} be lost, its share in legislation would scarcely, I should suppose, be found capable of being preserved.

    Under the peculiar constitution of the British empire, to the above list of remedial functions may, I suppose, be added on the part of the House of Lords, in its quality of second of the three branches, of which the supreme legislative power in the state is composed, the maintenance of such its station in the government - more shortly maintenance of the privileges of the House of Lords: for, let its portion of supreme superintending authority in matters of judicature be, for argument sake, lost; its share in legislation would scarcely, I should suppose, be found capable of being maintained.
  • Title: [27 May 1807 ++ 13 (5) Letter]
    Description: 27 May 1807

    ++ 13 (5)

    Letter V

    1. Plan

    III. J.B. Remedies

    1. Maintenance of the course of decision in each judicature in a state of undeviating conformity to the declared will of the legislator - or, more shortly; maintenance of the authority of the sovereign legislature, viz. by prevention or correction of insubordinate decisions - 2. maintenance of the limits set to the jurisdiction of the several judicatures, {maintenance of the course of decision in the several subordinate judicatories within the limits of their respective lawful jurisdictions} - or more shortly, prevention or correction of usurpation of jurisdiction - these together with 3. maintenance of uniformity among judicial decisions, or in the course of judicial decision - are so many remedial operations, which present themselves of course, as corresponding to, and called for by, the nature of the several modifications of judicial injustice, list[?] above enumerated.

    In these instances the immediately operating remedial instrument will be either reversal or modification, as above, viz. of this or that peccant[?] division of the Court below or else, where necessary (which on so high a level it is not apt to be) punishment; including, where applicable the imposition of the burthen of satisfaction, to the use of the party specially injured.
  • Title: [May 1807 Judicial Injustice]
    Description: May 1807

    Judicial Injustice

     After communicating[?] the 6 objects, go on

    Of these 6 objects the two only ones which present in a direct view the idea of injustice in the character of the mischief to be obviated are the 4 th and 5 th, viz: prevention of misdecision viz. ultimate misdecision, and prevention of delay, viz. unnecessary delay.

    Maintenance of the authority of the legislator: maintenance of the share of the House of Lords (under the British Constitution) in the legislative authority: and maintenance of uniformity of decision in the subordinate judicatures.

    But in these two objects the three first, in one point of view, are virtually included: as likewise in another point of view, the sixth viz. periodical collection of Returns shewing the state of judicature in the subordinate Courts.

    1. The will of the legislator being necessarily assumed as the standard of rectitude in the line of judicial decision, it follows that, in the instance of each individual suit, so far at least as the question of law is concerned, prevention of ultimate misdecision, and maintenance of the authority of the legislator coincide. The decision in that instance is it right? the will of the legislator is then conformed to in that same instance. Is the decision wrong? the will of the legislature is then in that instance frustrated, his ordinances disobeyed.

    2. The will of the legislator being in like manner assumed as the standard of rectitude in the line of judicial decision, it follows in like manner that in the instance of any two individual suits, compared with each other, whether instituted before the same judicature, or before two different judicatures, so far as the question of law is concerned maintenance of uniformity in judicature and maintenance of the authority of the legislator coincide. For one of them being conformable to the will of the legislator, if the other be likewise conformable to the same standard, they will be conformable to each: one of them being conformable to that same standard, and the other not, they can not be conformable one to another.