date

29 Feb y 1807 Judicial Justice
29 Feb y 1807

Judicial Justice

Letter V

I. Shapes

The articles of misdecision and maintenance of uniformity require ulterior consideration.

In regard to misdecision, the mischief of it differs materially, whatever be the cause or object of demand according to the nature of the subject of decision - i.e. according as it is the matter of law or the matter of fact: the mischief, and thereupon accordingly the remedy: the mischief viz. in respect of the remedy which it admitts of in the one case and not in the other.

Where the subject of decision is the point or question of fact merely, in this case be the state of the law ever so uncertain and uncognoscible, it admitts of an ever changing Judge or set of Judges: such for example as an English Jury. In this case, the mischief of misdecision is comparatively light: the suffering extends, not beyond the individual, or at most beyond the circle of the connexions of the individual, to whose prejudice the misdecision operates. On such a day, in such or such a cause, a Jury gave their verdict. The verdict was unjust, and in that sort of case which exists to no small extent, in which a new trial could not be granted. So much the worse: but however there ends the mischief: at any rate so far as that set of changeable judges is concerned: for the same set will not meet a second time.
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  • Title: [10 March 1807 Judicial Justice]
    Description: 10 March 1807

    Judicial Justice

    Letter V

    I. Shapes

    1. Misdecision

    When the misdecision is regarded as having for its subject the matter of fact, the correction is administered, under the previous allowance indeed if a set of permanent Judges (those of the Court in which the action was brought), but immediately by another Jury: and, in this instance as in the former one, the decision by which the supposed correction is administered is called a verdict - a second verdict: the Trial on the occasion of which this fresh verdict is pronounced is called a New Trial: and the application, the prayer of which being addressed as above to the Court, that such New Trial may take place, is called a Motion for a New Trial.
  • Title: [1 March 1807 Judicial Justice]
    Description: 1 March 1807

    Judicial Justice

    I. Shapes

    Under the influence of considerations such as the above, in a case of doubt, the natural tendency of a Jury of a set of unlearned judges taken from the body of the people, is to give the turn of the scale in favour of the weaker party: and this tendency may be placed to the account of the advantages of Jury trial. But were it ever to come to be received in the character of a principle, and operating with such force as to engage them, and that notoriously to give a verdict in favour of the weaker party, in a case clear of doubt, and against the known justice of the case, the tendency in proportion to its force, would operate in diminution of the advantage attached to this mode of judicature. A case though not likely to be exemplified may without any difficulty be conceived, in which the mischief from this source might swell to such a pitch as to outweigh the advantage altogether. For carry it to a certain pitch, it becomes a levelling principle; and by laying the axe to the root of all property, dooms civilized society itself to extirpation.

    In this ideal case the mischief would exceed the mischief of misdecision on the part of the permanent Judge on the matter of law in a still higher degree than that exceeds the ordinary amount of the mischief of misdecision on the matter of fact. The unjust judge displaced by death or deprivation, there ends in the bosom of the public the pain of apprehension of which his individual character was the source. But, suppose this principle of insecurity in question to have occupied and tainted the bosom of the class of people out of which Jury-boxes are filled, against a disease thus rooted neither death nor deprivation afford any remedy.
  • Title: [10 March 1807 Judicial Justice]
    Description: 10 March 1807

    Judicial Justice

    Letter V

    I. Shapes

    1. Misdecision

    There remains then as the most natural, and under English Jury trial the only subject for liquidation, viz: money.

    And here accordingly comes in the room for misdecision pro tanto, viz. in respect of quantity, as well as per toto. Accordingly a verdict pronounced by a Jury is liable to be set aside, either for being for the Plaintiff when it should have been for the Defendant, or vice versâ, or being for the Plaintiff, as well for deficiency as for excess of damages. On the ground of deficiency very rarely indeed does it happen to any such correction to be administered: but as to the why or wherefore it belongs not to this place.

    On the question of law, the possibility of misdecision pro tanto and not per toto has not been recognized by English jurisprudence.

    So long as the part of business is left to be performed by the Jury, the deficiency is not attended with any inconvenience. So far as quantity is concerned the enquiry is with peculiar propriety committed to the judges of fact and not of law. For the quantity due, depending commonly upon circumstances peculiar to the individual case, can seldom receive an exact liquidation from the tenor of the law. It stands therefore in this characteristic point of view in the same case with the question of fact: and with equal propriety may receive its decision from the same species of judicature.