date

10 March 1807 Judicial Justice
10 March 1807

Judicial Justice

Letter V

I. Shapes

1. Misdecision

In the Spiritual Courts and in the Admiralty Courts any more than in the Equity Courts is any such separation made between the question of law and the question of fact: nor any use made of the Jury trial.

But by means of the sort of correspondence which they are in the habit of keeping up with the Common Law Courts Equity Courts [do] occasionally give the suitor the benefit of the separation, together with the congenial benefit of Jury judicature.

Neither do the Spiritual Courts, nor the Admiralty Courts keep up any such correspondence.

If the sort of decomposition here in question, and with it the use of the Jury box, in the character of an appropriate instrument for operating it, be in Common Law causes always and in Equity causes ever and anon conducive to the ends of justice, why not in Spiritual causes and in Admiralty causes?

A question surely not inapposite. But a supposition tacitly involved in it is that in each of those Courts the system of procedure was in its origin regulated by a correct and comprehensive conception of, as well as an honest regard for, the ends of justice, instead of being a blindman's- buff scramble for power and profit, carried on blind fold in the dark ages: those eyes whose wisdom conveyed to them by intention, without the trouble of experience, is so often reclaimed as the fit model and standard of imitation for each successive and more and more experienced age. Wisdom of ages! wisdom of ages! - cries every lawyer, and mercenary placeman, who has an abuse to defend, and effrontery to defend it.
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    In a few instances (say an Admiralty cause) the Jury judicatory might not be so proper:- but in none could there be less demand for regular instruments of demand & defence.

    Various causes concurred in taking out of the jurisdiction of the ordinary, and placing under the jurisdiction of so many classes of extraordinary judicatories, so many different portions of the field of law: one of these dismembered compartments was gradually conquered by the Courts called Equity Courts: another by the Courts called Spiritual or Ecclesiastical Courts: another again by the Courts called Admiralty Courts.

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  • Title: [10 March 1807 Judicial Justice]
    Description: 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.

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    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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