date

Dec r 1807 Table VII Jurisdiction
Dec r 1807

Table VII Jurisdiction Table Table VII

'.IV. Decision on Appeal, whether the only judicial remedy, against judicial misconduct? See Table VIII.

By the Statute of the 14 Ed.3.c.9. a remedy, applicable by the highest ultimate judicatory, was given against delay, considered as liable to result from misconduct[?] on the part of the judicature immediately subordinate.
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  • Title: [24 Dec r 1807 Jurisdiction Table Table]
    Description: 24 Dec r 1807

    Jurisdiction Table Table VII

    Notes

    '.III. Ultimate Appeal, whither?

    In point of fact, in Scotch causes, the ultimate imposed judicatory is, in every instance, the House of Lords: so likewise in English causes, in all but a very small proportion of the number of causes individually considered. But in English causes, in this and that corner of the field of judication, the ultimate judicature is in the King, and so in Irish causes. In point of utility, in this anomaly and complication, is there, in the whole and in each several part of it, any adequate use? See Further on, '.VI.
  • Title: [Dec r 1807 Jurisdiction Table Table]
    Description: Dec r 1807

    Jurisdiction Table Table VII

    Uses

    '.V. Ultimately appellate judicature

    and

    general superintendence, how far tantamount to each other?

    Superordinate judicature, supposing it ultimate, coextensive with the whole field of judicature, & lodged in one and the same set of hands - what, if any thing, it would want in amounting to a compleat & adequate system of superintendence?

    The use of an ultimately appellate tribunal is to apply, in so far as it can be done without the exercise of legislative powers, remedies to judicial injustice, under its several modifications: remedies to the evils respectively correspondent, & opposite, to the several ends of justice.

    To that purpose, the mere exercise of ultimately appellate superordinate judicature can never of itself be sufficient. Appellate judicature cannot be exercised, but in consequence of an appeal presented to a party appellant. Ultimately superordinate judicature, taken in the most extensive sense, cannot be exercised but in consequence of complaint, made by a party complainant.

    In every instance, in which either the will or the power to act in the character of a party complainant is wanting, injustice, in whatever shape it may have been done by an inferior judicatory, must remain without remedy.

    1. The will may be wanting in case of misadvice.

    2. The will will naturally be wanting in every instance in which the delay

    vexation and expence, attached to the process of applying for the remedy, constitutes, or, in the eyes of the party in question, appears to constitute, an evil preponderant in value over the good expected from the application of the remedy: the circumstances of degree of certainty & degree of proximity being taken into the account.
  • Title: [25 Dec r 1807 Table VII. Jurisdiction]
    Description: 25 Dec r 1807

    Table VII. Jurisdiction Table VII

    Notes

    '.II. Stages of Appeal, how many?

    Subordinate Topics.

    1. In point of fact, in English and Scottish judication respectively, how far, in the several states of jurisdiction, the real number of stages coincides with the apparent: viz. in what instances is it greater?

    2. Herein[?] if disguised stages of Appeal. In English Equity, procedure, for example. Report by a subordinate Judge (and[?] Master[?]) and Exceptions thereunto, argued before the supreme Judge: the Chancellor or the Master of the Rolls. So in Scottish procedure, in the Court of Session, vibrations between the Bill Chamber, and the two Houses, Inner and Outer. *?

    3. In point of utility, what are general principles in the proper number of stages of Appeal? See Shapes of injustice

    4 By what particular circumstances, topographical or logical (logical, resulting from the place of the cause in the field of judicature) are indications afforded for the diminution or augmentation of the number of these stages?

    5. In point of fact, Comparative multitude of intermediate stages in Scottish judicature in comparison of English and Irish; no regard being had, in the case of the English, to the cases most frequently exemplified in practice.

    6. In point of utility, how far it is desirable, that the number of stages, through which the suit is capable of being made to pass should rest on the arbitrary will of the Plaintiff or his Attorney, to be exercised either at the outset of the cause (ex. gr, by commencing[?] it either by Original, (which throws out the Exchequer Chamber) or by Bill, which leaves the Exchequer Chamber in) or at any intermediate period[?]: ex. gr. in Chancery by setting the cause down for hearing either before the Chancellor or the Master of the Rolls?

    N.B. Analogous to this in criminale is the practice, which in capital cases, gives a power of pardon to the prosecutor, by leaving it at his option to ground[?] the indictment on a Statute subjecting the offence to capital punishment, or on a Statute subjecting it to a punishment less than capital, or on the Common Law.