JB_168_213.xml

Title: [10 Jan y 1808 Notes to Judicial Grievance]

Description: 10 Jan y 1808

Notes to Judicial Grievance and Remedy Table Table VIII

Notes

( ) (Delay) Though against delay in judicial proceedings, in so far as it is regarded as having for /produced by/ its efficient[?] cause misconduct on the part of the Judge, the remedy here brought to view, viz. Order for Dispatch, is the only direct remedy, applicable, at the instance of a suitor, by a subordinate judicatory, acting as such, yet in itself as well as in comparison of such other remedies as the nature of the case affords, its action is very feeble and precarious. Delay is the grievance: but, to take a chance for the application of the remedy, ulterior delay is necessary - ulterior delay, a certain addition to the disease.

Of delay, unnecessary delay, so far as it has place, the cause is to be looked for either in the system of procedure, or in the conduct of the Judge. So far as the disorder has its seat and root in the system, so far it is to the system that the remedy, to be of any use must be applied.

So far as it is referable to the conduct of the Judge i.e. to the misconduct on his part, the direct remedy is an Order for Dispatch, as above. But this remedy, feeble as it is, is mainly of the corrective kind[?]. A remedy of the preventive kind, as well as beyond comparison more efficient, would be afforded by they system of perpetual accountantship above-mentioned: in application much of that system to the purpose of making known whatsoever portion of delay, and thence whatsoever portion of unnecessary delay, has for its cause improbity or infirmity - the partiality or indecision - on the part of the Judge.

JB_168_207.xml

Title: [9 Jan y 1808 Notes to Judicial Grievance]

Description: 9 Jan y 1808

Notes to Judicial Grievance and Remedy Table Table VIII

Notes

3. Ununiformity in the course of decision on the part of one and the same judicatory, comparison being made between its decisions at one period, and its decisions at another period of time.

In this case taking for the standard of rectitude the decision of the anterior length of time, a [...?] decision or course of decisions is chargeable with misdecision to the prejudice of certainty. In the charge of misdecision is, however, in this case, tacitly involved the supposition that the anterior course of decision was known to the Judge at the time of pronouncing the decision which is regarded as running counter to that anterior course: on which supposition, if regularly /constantly/ [...?] is again involved the [...?] supposition of the existence of some institution whereby decisions, as fast as pronounced are brought to light, and presented to general notice.

But it may happen that there is no such institution: and that accordingly, for want of it, a course of antecedent decision to any length may, in any part of the field of judicature have been run counter to by a course of subsequent decision running to any length, and that of one or more subsequent decisions or courses of decision, sometimes one starts[?] up to [...?], sometimes another, as it may happen. In this case the power of the Judge being in fact in a proportionable degree arbitrary, and he at liberty, without prejudice to his reputation to decide this way or that way, as he pleases, no decision which he can pronounce is open to the imputation of misdecision.

In this case /state of things/ it not being in the power of the superordinate judicatory, at the instance of any individual suitor[?], complaining on any individual occasion, to apply any appropriate remedy, neither the grievance nor the remedy but[?] fall within the design and compass of this table.

JB_168_205.xml

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.