date

8 March 1807 Judicial Justice
8 March 1807

Judicial Justice

Letter V

Degrees

Naturally, therefore, it is the supreme legislator that is supreme Judge. The object of judicature is to maintain in the conduct of all the people considered in the character of subjects a conformity, a constant conformity to [the] expression given to the supreme will as being the universal standard of rectitude.

What then is the object, the end in view, in allowing to the suitor the faculty of recurrence to this universal standard of justice? what then is the proper object - the proper end in view? to maintain the conduct of the Judge, and thence of the people in a state of conformity, to that supreme will - of conformity as universal, and in every respect as perfect as possible: to maintain this conformity, and of course with as little collateral inconvenience, in the shape of delay, vexation and expence, as possible.

If these considerations be just, they lead at once to one fundamental rule or aphorism concerning degrees of jurisdiction.

1. So far as matter of law is concerned, the number of degrees of jurisdiction ought to be, in regard to every sort of suit, as small as possible, as small as may be, prudential as well as physical practicability considered.

2. So far as matter of law is concerned no degree of jurisdiction ought ever to be added, but for some special cause, proving that for want of it the ends of justice taken in the aggregate, fail of being provided so effectually as they may be by means of it.
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  • Title: [8 March 1807 Judicial Justice]
    Description: 8 March 1807

    Judicial Justice

    Letter V

    Degrees

    3. As far as is consistent with practicability, physical and prudential, the mind of the legislator ought to be in the habit of applying itself to the business of judicature: i.e. to the taking the requisite measures for maintaining the aggregate body of judicial decisions in a state of conformity to its own will.

    4. Between the supreme legislator and the Judge in the first instance every degree of jurisdiction interposed, is attended with two mischiefs:

    1. It increases the probable number of decisions liable to be pronounced in disconformity to the will of the supreme legislator: i.e. of misdecision uncorrected.

    2. It is attended with an additional mass of collateral inconvenience in the shape of delay, vexation and expence.

    5. So far as matter of law is concerned, the only proper arrangement, if it were practicable would be that the legislator himself should in every instance be Judge: Judge, even in the first instance, were it practicable: if not, then Judge in the 2 d instance.

    6. In an Empire such as the British, it is clearly impracticable for the legislator in every individual suit, or even in any considerable number of suits to act as Judge in the first instance.

    7. It may perhaps be also impracticable for him to act as Judge in the 2 d instance in respect of the sitting to hear arguments on both sides by the parties, that is by their advocates, on such terms in each individual suit to bestow a portion of his time commensurate to the calls that will thus be made for it.
  • Title: [8 March 1807 Judicial Justice]
    Description: 8 March 1807

    Judicial Justice

    Letter V

    Degrees

    5.6.7. Degrees or Stages of Jurisdiction - what number the most proper.

    Generally speaking in every country, but under the British constitution more particularly, the sovereign power in the state and the legislature, are considered as synonymous or convertible terms. Supposing the supreme power to be in a single hand, as in Russia for example, he in whose hand it is, is on that account termed the legislator.

    The Judge, though among the head servants, is but the servant of the sovereign. To the people in general, considered in the character of the subjects, and to the Judge in particular, the will of the sovereign, be he who and what he may, monocephalous or polycephalous, is the standard of rectitude, is the will of the sovereign: of the sovereign of the time being; the will of a sovereign of time past being no otherwise a portion of the standard of rectitude, than in virtue of the universal and universally notorious habit of adoption in virtue of which, in a settled government, the will of every past sovereign becomes and on each occasion is considered and treated as being the will of the sovereign for the time being, unless and until by express law declared to be so no longer.
  • Title: [12 Oct r 1807 Lords Delegates]
    Description: 12 Oct r 1807

    Lords Delegates

    After Ch. ││ Hale's Plan

    Ch. ││ Hale's Objections

    As to the case of a supreme judicatory /judicial power/, independent of the supreme legislative and by a system of unconfirmable decisions, capable of frustrating its laws, doubtless /no doubt but/, supposing it /that, supposing the capacity running into not/ realized, it is an inconsistent state of things. Under every government, the will of the supreme legislative power, is the actual, and assumed proper, standard of rectitude. The use and the only use /The express and indubitable duty/ of the supreme judicial power - of the judicial power in all its branches is to maintain the conduct of all men /the whole community/, in their character of subjects a constant conformity to this standard.

    In a pure monarchy it would be a solecism /a plain inconsistency/, if the supreme legislative power being in the hands of the monarch, the supreme judicial were not there likewise /in the same hands/: a solecism, and /but/ one which in such[?] a state of things is but little in danger of being realized. Suppose under a monarch a judicial power ultimately independent of his will, there the case is that this the impure legislature is not in him alone, but in a certain manner shared between him and the possessor or possessors of the judicial.

    In France the Parliaments also claimed[?], though unofficially a sort of supreme judicial power independent of the King to whom they did contest the supreme legislature, not only [...?], but by the power of substituting representations to registration, not only claimed, but exercised /for a time exercised/, though with the rod all the while over their heads, a negative upon his laws.