date

8 March 1807 Judicial Injustice
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.
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  • Title: [8 March 1807 Judicial Justice]
    Description: 8 March 1807

    Judicial Justice

    Letter V

    I. Shapes

    1. Misdecision

    The rule of action being in the state of statutory law, the question of law is therefore uniformly a question concerning the import of a certain word or assemblage of words. But whose then are these the words? Of whom, but of the legislator? If, among those whose duty and business it is to assign an import to any such assemblage of words, there be a doubt which of two imports is the true one, to what Oracle should recurrence be made, but to the legislator? If it be a law of his own making, is there any other person so well able to understand, so competent to declare what his meaning was or is, as he? If it be among the laws received by him in the way of adoption from his predecessors, if he understands[?] not better than any one else, what on the occasion in question was their will, what he can not but understand is a matter still more directly material - viz: what at the time in question is his own will: that will which in truth at each given moment of time is the only immediate rule of action and standard of rectitude.

     Go on to explain what constitutes the matter of law under jurisprudential law, in analogy to the above.
  • 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.

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

    Judicial Justice

    Letter V

    I. Shapes

    1. Misdecisions

    As decision, so may misdecision, have for its subject either the matter of law or the matter of fact.

    The distinction is of cardinal importance: the remedies in the two cases actually applied, wearing such different aspects, and the propriety of them turning on such different principles. Of this afterwards.

    Under the imaginary and spurious kind of law which there is such frequent need to mention by the name of jurisprudential law, the distinction between matter of law and matter of fact is a subject of the most perplexing intricacy. This will be discussed in another place.

    To obtain a clear idea of the distinction, recourse must be had in the first instance to real, to genuine, to statutory law.

    Suppose, for supposition's sake, the rule of action to be, in the whole of it, in the form of statutory law. In this case the question of law is in each instance a question concerning the import of words: a question concerning the import of a determinate word or collection of words, either immediately following one or other, or to be found in different parts of this all-comprehensive code.

    In this same case, the question of fact will, on each occasion, be whether in that instance on the individual occasion in question any such state of things had place as is designated by the collection of words so composed: if there be but one proposition that applies to this case in question, i.e. the number of words of which that proposition is composed (a less number of words than those which suffice to constitute a proposition there can not be) whether any such state of things has took place as is indicated by that proposition taken by itself: if there be several such propositions, then whether any such state of things took place, as stands expressed by all those several propositions, taken together.