date

10 March 1807 Judicial Justice
10 March 1807

Judicial Justice

Letter V

I. Shapes

1. Misdecision

In the English constitution, a peculiar feature, and as it will appear, a feature of peculiar advantage, is the separation so extensively made or endeavoured to be made in the system of judicature between the matter of law, and the question of fact.

In so far as the separation is made, or understood to have been made the decision on the matter of law is understood to appertain, and is accordingly committed to the permanent Judge or set of Judges: the decision on the matter of fact to the impermanent, ever-changing set of Judges, called the Jury.

In pursuance of this separation, the remedy applied in the character of a correction to misdecision, receives in the two cases a different denomination, and the application of it is governed by different rules.

It is only in the Common Law Courts that this separation has place. In the few instances (individual instances) in which it is made under the authority of the Equity Courts, it is made through the medium of the Common Law Courts.

When the misdecision is regarded as having for its subject the matter of law, the correction is applied by the decision of a superordinate Court, and the decision is called Judgment for the Plaintiff in Error: and the application whereby such judgment is prayed is called a Writ of Error.
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  • Title: [10 March 1807 Judicial Justice]
    Description: 10 March 1807

    Judicial Justice

    Letter V

    I. Shapes

    1. Misdecision

    Thus much as to misdecision pro tanto in respect of quantity.

    By the inadequate simplicity of the original scheme Common Law, being alike debarred from recognizing the possibility of misdecision pro tanto in respect of conditionality, hence in any case where to render the decision commensurate to the ends of justice modification in respect of conditionality was requisite, and one amongst so many other proper grounds for the necessity of a recourse to the more unshackled authority of a Court of Equity, proceeding on the ground work of Roman Law.

    When by a Court of Equity a decision is pronounced in favour of the Plaintiff, it may either accede to the demand either purely and simply, or annex to the service rendered to him any conditions that present themselves as suitable to the justice of the individual case.

    When upon and after a definitive decision, pronounced by a Court of Equity, which decision is in that sort of Court called a Decree any change is made by a superordinate Court, whether it be in toto or pro tanto, and if pro tanto, whether in respect of quantity or conditionality, the instrument whereby the correction is administered is either termed, also a Decree, or else an Order: a decree, if administered by any other superordinate Court of Equity than the House of Lords: for example if administered by the Lord High Chancellor, in correction of a Decree framed by the Master of the Rolls: an Order, if administered by the House of Lords.

    In both instances the application whereby such correctionary Decree or Order is prayed, is termed an Appeal.

    In the same case likewise stands the practice of the other Courts of Rome-bred law - the Spiritual Courts, and the Admiralty Courts.
  • 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: [8 March 1807 Judicial Injustice]
    Description: 8 March 1807

    Judicial Injustice

    Letter V

    I. Shapes?

    1. Misdecision

    On the occasion of the arrangements proper to be taken in the view as conducive to the correction and prevention of misdecision, every thing depends on distinction and separation as between matter of law and matter of fact: clear separation in practice, and thence equally clear distinction in conception, the necessary guide to practice.

    For this purpose, it is necessary in the first instance to advert to the distinction between statutory and jurisprudential law. Not only is Statutory law the only one of the two under which the separation can be clearly and uniformly and throughout the field of law all comprehensively made, but it is only by obtaining a clear conception of the mode in which it is or may be made under statutory law; that any tolerable conception can be formed of the nature of the task in so far as it is attempted to be carried on under the reign of jurisprudential law.

     In Codification, where this subject as treated in termini.