date

1821. April 18. First Lines
1821. April 18.

First Lines

Procedure

I. Law

1. Non-existence

Main evil incident to judicial procedure - misdecision: arrangements for the

avoidance of it.

Causes by which this evil /Misdecision/ is liable to be produced - /enter by the/

1. Non-existence of any portion of law applicable to the /case or by the/

2. Misinterpretation of some /this or that/ portion of law applicable to the case.

3 In the first case /former of these cases/ if any decision at all - if any decision

to any other effect than that of the rejection of the claim be pronounced by the

judge, misdecision is an appellation which, with unquestionable propriety, may be

applied to it. For, in this case, by the supposition, there is no ground for it. In

this case, are all decisions whatsoever, insofar as they have for their pretended

ground the sort of non-entity called common or unwritten law: a spurious ground

which, by the supposition, is not the work of the legislator - is not the work of any

person having authority to make law, or so much as claiming authority to make law, -

but in so far as it is any thing - in so far as it is the work of any person - is the

work of the judge by whom, on this fabricated ground, the decision is pronounced - of

the judge, who, in the very act of making it, and in the midst of his confessions

that he has no right to make /authority for making/ law, gives to it the name of law

and pretends /pretending/ to have found it ready made: giving thus the name and

effect of law to the offspring /work and product/ of his own individual will

fashioned of course according to his own conception of his own interests.
Similar Items
  • Title: [1821. April 18. First Lines]
    Description: 1821. April 18.

    First Lines

    Procedure

    1. Law

    2. Misinterpretation

    2. Second cause of misdecision on the ground /question/ of law, misinterpretation of

    the law:- of this or that portion of the body of the law.

    In the supposition of misdecision from the operation of this cause

    /misinterpretation/, the supposition of the existence of a portion of real law

    applicable to the case, is likewise involved: where there is nothing to interpret, no

    such thing as misrepresentation can have place.

    In the first case, the evil has, for its manifest cause, negligence on the part of

    the laegislator.

    This negligence has not at present either justification or any the least shadow of

    excuse.

    In the early stages of society, the evil was not the result of negligence: the

    nature of things rendered it an unavoidable one: of the particular cases presenting a

    demand for legislation /no quantity/ had yet presented yetnot yet presented

    themselves in any such quantity or variety capable of affording any adequate idea of

    any considerable extensive much less of any all-comprehensive body of law.

    All this time, as often as compensation or satisfaction for evil suffered at the

    hands of another, was claimed, the judge, if he did any thing, did as he would have

    done, if a law had been already made, containing the description of a genus or

    species of case in which the individual case before him was comprehended, and

    ordaining that, in the shape applied for should in every such individual case be

    made: and so in the case of punishment.
  • Title: [9 Jan y 1808 Notes to Judicial Grievance]
    Description: 9 Jan y 1808

    Notes to Judicial Grievance and Remedy Table Table VIII

    Notes

    * N.B Where the question, in which the decision regarded as subject to the imputation[?] of misdecision, turned on a question purely of fact, the misdecision can not operate to the prejudice of certainty, unless in /in any other supposition/ so far as it may be considered as being, on the part of the Judge, indicative of a disposition likely to be fruitful /productive/ of in instances of misdecision, on the ground of fact, on other occasions: in which case the duration of the mischief is limited at any rate by the duration of the authority of the Judge.

    It is this limitation that constitutes a principal article in the advantages attached to the judicatory composed of a Judge and Jury.

    To the grievance consisting of /evil produced by/ misdecision to the prejudice of certainty, by disobedience on the part of the Judge & the ordinances of the superior authority, the only direct remedy directly applicable consists in a habit of appropriate vigilance on the part of that supreme authority, a habit showing /manifesting/ itself in the practice of punishing every such act /all such acts/ of disobedience as often as they manifest themselves.

    To the grievance consisting of /evil produced by/ misdecision to the prejudice of certainty by departure of the part of the Judge from a course of decision, regarded as established, viz. in a case regarded as belonging to /governed by/ jurisprudential law, the only efficient remedy consists in the conversion of the rule of action out of the essentially and incurably uncertain form of jurisprudential law, into the form of statute law: giving thereby a certain form of words, to a mass of imaginary and pretended law which of itself has none.
  • Title: [10 March 1807 Judicial Justice]
    Description: 10 March 1807

    Judicial Justice

    Letter V

    I. Shapes

    1. Misdecision

    Thus much as to misdecision pro tanto in respect of quantity.

    By the inadequate simplicity of the original scheme Common Law, being alike debarred from recognizing the possibility of misdecision pro tanto in respect of conditionality, hence in any case where to render the decision commensurate to the ends of justice modification in respect of conditionality was requisite, and one amongst so many other proper grounds for the necessity of a recourse to the more unshackled authority of a Court of Equity, proceeding on the ground work of Roman Law.

    When by a Court of Equity a decision is pronounced in favour of the Plaintiff, it may either accede to the demand either purely and simply, or annex to the service rendered to him any conditions that present themselves as suitable to the justice of the individual case.

    When upon and after a definitive decision, pronounced by a Court of Equity, which decision is in that sort of Court called a Decree any change is made by a superordinate Court, whether it be in toto or pro tanto, and if pro tanto, whether in respect of quantity or conditionality, the instrument whereby the correction is administered is either termed, also a Decree, or else an Order: a decree, if administered by any other superordinate Court of Equity than the House of Lords: for example if administered by the Lord High Chancellor, in correction of a Decree framed by the Master of the Rolls: an Order, if administered by the House of Lords.

    In both instances the application whereby such correctionary Decree or Order is prayed, is termed an Appeal.

    In the same case likewise stands the practice of the other Courts of Rome-bred law - the Spiritual Courts, and the Admiralty Courts.