date

9 Jan y 1808 Notes to Judicial Grievance
9 Jan y 1808

Notes to Judicial Grievance and Remedy Table Table VIII

Notes

If Conceive a nation, in which there are two bodies of law even in the department of substantive law, running counter to each other, with correspondent sets of judicatures, the functions /destiny[?]/ of which coexist[?] in giving execution to those repugnant bodies of law respectively, here is a course of ununiformity of decision the result not of temporary accidents /occasional incidents/ but of a regularly organized[?] and established system of contradiction and confusion.

Then too /more particularly/ the seat of the mischief is exclusively in the system.

It is only in the state of jurisprudential law that two such jarring rules of action could exist together. The seat of the disease being in the form, the jurisprudential form in which they are enveloped, the remedy consists, here as before, in the translation of this part of the body of the law out of the jurisprudential form into that of statute law, as above: always understood and supposed, as a necessary consequence, that when it is thus put into the form of statute law, the repugnancies will be done away, one simple rule being substituted all along /throughout/ to two discordant and conflicting ones.
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  • Title: [9 Jan y 1808 Notes to Judicial Grievance]
    Description: 9 Jan y 1808

    Notes to Judicial Grievance and Remedy Table Table VIII

    Notes

    In this case the more obvious remedy consists in the attaching to every judicatory, the decisions of which are suffered to operate as above, in the way of precedent, forming /adding/ pro tanto the matter /to the mass/ of jurisprudential law, an institution productive of the effect abovementioned, i.e securing a universal regular and adequate degree of notoriety to all such decisions as they come /it happens to them/ to have been pronounced.

    But if any such institution, the operation would be but prospective, leaving the decisions of past time in the same state of uncertainty in respect of notoriety as before.

    In this case therefore, as in so many others, conversion of jurisprudential into statutory law presents the only effectual and adequate remedy and recourse.

    4. Ununiformity of the course of decision between one judicatory and another.

    A mischief of this description can no otherwise have place than between two or more co-ordinate judicatures considered as co-ordinate: if of two judicatures one be superordinate, the other subordinate, a decision which being pronounced by the subordinate, runs counter to a decision of the /its/ superordinate, falls pro tanto under the imputation of misdecision, one of the grievances comprized in the Table.

    If the judicatures as between which the ununiformity has place be with relation to each other co-ordinate, the mischief has its seat in the system, its source in the same state of things as in the case last mentioned, as also the same remedy.
  • 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 Jan y 1808 Notes to Judicial Grievance]
    Description: 10 Jan y 1808

    Notes to Judicial Grievance and Remedy Table Table VIII

    Notes

    7. On the part of the superintending judicatory and the legislature, ignorance respecting the state of the judicial department, viz of the several judicatures comprized under it, respecting the particulars /detail/ of the transactions carried on it, and thereby of the degree of their conformity or disconformity to the ends of justice.

    In this cost though of itself productive of no perceptible[?] evils, lies the root of all those other evils. The description of the evil, gives, in this instance, a description of the remedy: a system of accountantship (gallies[?] comptabilité[?]) by which those transactions classed under heads bearing relation to the several ends of justice, shall be regularly brought to view, as in the case of pecuniary accounts.