date

2[?] March 1807 Judicial Justice
2[?] March 1807

Judicial Justice

Letter V

II. Sources

II. Next as to the sources in which injustice in judicature is liable and apt to take its rise. These are enumerated:

1. The System itself: viz: the System of procedure in force and practice at the time: whether that system be the work of the sovereign alone or of the judicial authority alone, operating whether in the way of statutory or of jurisprudential law, or, as is mostly the case, partly of the one, partly of the other.

2. Misconduct on the part of a suitor on either side taking advantage, as a dishonest suitor is apt to do, and must always be expected and presumed to be ready to do, of whatever imperfections on the part of the system itself present themselves as favourable to his purpose. Fraud on the part of a suitor.

3. Misconduct on the part of a Judge -

Misconduct manifested on the occasion of a suit on the part of the Judge may either be such whereby the fate of the suit is affected, or misconduct not affecting the fate of the suit, but collateral to it.

Misconduct affecting the fate of the suit, i.e. the lot and condition of either party in respect of the interest which he has in the suit consists in the production of injustice in one or other of those of the shapes above spoken of viz. Misdecision to the prejudice of the plaintiff's side. 2. Denial of justice. 3. Misdecision to the prejudice of the Defendant's side - and 4. Delay (which has the effect of denial of justice, which it hastens[?]).
Similar Items
  • Title: [4 March 1807 Judicial Justice]
    Description: 4 March 1807

    Judicial Justice

    Letter V

    II. Sources

    4. Accident: under which head may be included any event which either does not depend upon the will of any human being, or even, to the present purpose, any event which whatsoever other will may be concerned in the production of it, does not depend either upon the system as abovementioned (the work of past Judges and Legislators) or upon the will of any of the dramatis personae acting as above in the theatre of justice.

    With a view to remediation, the chief use of bringing to view accident in the character of a source of injustice is this: viz: that cases exist and to a great extent, in which that injustice is apt to be referred solely to this source, when in truth it would not have taken place, but for some imperfection in the system, with or without the concurrence of misconduct, for example on the part of a malâ fide suitor, occupied in taking advantage of it.

    If a person whose testimony is necessary to prove the plaintiff's right, dies before such testimony has been collected, injustice to the prejudice of the plaintiff's side, viz: in the shape of misdecision, is the necessary consequence. Misdecision, when it is seen to originate in this source is commonly referred to pure accident. But, under the technical system in the great majority of instances, it has for its source the imperfections of the system itself seconded or not by these frauds and artifices which it invokes on the part of suitors: imperfections, considered with relation to its proper ends, the ends of justice; perfection with relation to its actual ends, the ends of judicature. To accident, for example, will the definition[?] of the evidence, in the case here spoken of, commonly be ascribed: whereas, but for the factitious delay manufactured by the system, the accident, the death would not have been productive of the disasterous effect - the misdecision, which without the guilt or blame it produces, in so far as the losing party and his connections are concerned, all[?] the mischief of injustice.
  • Title: [[094-345v] 27 Feb y 1807 Letter]
    Description: [094-345v]

    27 Feb y 1807

    Letter V

    [...?] 10.11.12.13.14.

    Appeal is one out of several modes of application to a Court above, on the ground of the supposed misconduct of a Court below.

    Misconduct on the part of the Court below may either be of a nature to affect[?] which affects the fate /[...?]/ of a /some/ cause instituted in the Court, or may consist in some injury or vexation inflicted indeed on the occasion of some such suit, but collateral to it, and not affecting the fate of it.

    There are but two ways in which the issue of a suit brought before a Court can be affected, whether by the misconduct of the Judge, or by any other cause. One is misdecision, the other by non-decision, which is as much as to say is delay. Exclusive of the /those/ chances of ultimate mis-decision with which delay is naturally pregnant, (see the Table) the mischief of delay is in its nature the same as that of misdecision, viz.: to the prejudice of the plaintiff's side, with no other difference than that of its being temporary instead of perpetual, being co-aval[?] and more than co-aval[?], with the delay itself.
  • Title: [March 1808 Letter V §.6. Reasons]
    Description: March 1808

    Letter V

    §.6. Reasons

    Ends of Justice

    Injustice v Defend t Causes

    I. Misdecision

    II. Non-Decision

    Causes of Injustice to the prejudice of the Defendant's side i.e. of Injustice done to an individual by undue obligations imposed on him in the character of defendant. whether on the score of satisfaction, on the score of wrong, collation of rights in favour of the other side, or punishment.

    I. Misdecision, to the prejudice of this side of the suit.

    Of Misdecision to the prejudice of this side all the causes are to be found upon the list of the causes of misdecision to the prejudice of the plaintiff's side: but of these last there are some which will be seen not to be applicable to misdecision when to the prejudice of the defendant's side.

     Examine

    II. Non-Decision.

    In the evil produced by this species of misconduct on the part of the Judge is involved the mischief to the same effect as what would have been produced by misdecision to the prejudice of the Plaintiff's side. If to that mischief the defendant's side is not liable to be subjected by the operation of this cause. There remains the evil of the delay, by which the defendant's side is liable to suffer as well as the plaintiff's.

    For the causes of Non-Decision, see above the case in which the side that suffers by it is the plaintiff's side.