date

8 March 1807 Judicial Justice
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.
Similar Items
  • Title: [16 May 1807 Judicial Injustice]
    Description: 16 May 1807

    Judicial Injustice

    Distinct as this object is from that of prevention of misdecision and delay in the instance of each individual suit taken separately, still more determinate and conspicuous is the distinction when applied to the aggregate mass of suits instituted within a given portion of time.

    In the case of the decision pronounced on any point in any given individual suit, supposing the decision erroneous, ultimate misdecision on that same point can not be prevented, the decision so assumed to be erroneous cannot be prevented from taking effect, unless it be known: from whatsoever superordinate authority the error receives its correction, it cannot be corrected by any person or persons without their knowing what it is.

    But taking in the aggregate the whole number of judicial decisions pronounced in the several subordinate Courts within a given length of time what may very easily, and in truth much too easily happen, is - that, while in the instance of some suit's parcel of that mass the decisions pronounced in them are known, and being so known a smaller portion of them being deemed erroneous receive correction accordingly - in such sort that in these instances though the decision pronounced in the first instance fell under the case of misdecision, ultimate misdecision was in that instance prevented from taking place - at the same time in the instance of other suits composing another parcel and perhaps much the larger parcel of that aggregate mass, the decisions pronounced remain, on the part of the superintending authority altogether unknown: whence it follows that in that parcel of the aggregate mass, in whatsoever and in how many soever instances it may have happened that misdecision took place, in all those instances the error has remained uncorrected.
  • Title: [8 March 1807 Judicial Justice]
    Description: 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.
  • Title: [7 March 1807 Judicial Justice]
    Description: 7 March 1807

    Judicial Justice

    Letter V

    I. Shapes

    To one or another of the above heads may be referred every instance of judicial injustice in judicature operating in direct and immediate repugnancy to any immediate end of justice. But the precautions taken by the legislator against injustice from that source would be imperfect and inadequate, were he to fail to apply himself to the exclusion of two other mischiefs which though distinguishable from every one of the above, are intimately connected with them, in the character of causes tending to the production of those effects

    These are:

    1. Usurpation of jurisdiction

    2. Operations productive of inconstancy in judicature: of uncorrected co-repugnancy or inconsistency as between one judicial decision [and] another.

    On the part of the legislator, the putting an exclusion as compleatly as possible, upon these several mischiefs or inconveniences may be considered as so many secondary ends of justice.

    On the bare mention of it, usurpation will be recognized, as being, what it will be seen to be, an evil. Yet this it would not be, were it not for its aptitude to be productive of the more immediate and sensible intrinsic evils above spoken of, the evils which stand opposed, as above, to the several primary ends of justice.

    In like manner, on the bare mention of it, inconsistency in judicature, as above explained, will also be naturally enough recognized in the character of an evil: yet this it would not be, any more than the other, but for its aptitude to give birth to the same more sensible and immediate evils, as will be explained in due time and place.