date

10 Jan y 1808 Notes to Judicial Grievance
10 Jan y 1808

Notes to Judicial Grievance and Remedy Table Table VIII

Notes

6. Complication (superfluous complication). This evil, though in a preeminent degree repugnant to the ends of justice is so no otherwise than in virtue /respect/ of its tendency to be productive of the two evils above mentioned as being opposite to these ends: viz. uncertainty on the part of the rule of action, expence, delay, and vexation to suitors, compleat sometimes with vexation to others.

It may have its seat as well in the main body of the rule of action, (substantive law) in that appendage to it which is composed of the system of procedure (adjective[?] law) and in the latter case as well in the instruments as in the operation of procedure. See Table I.

In any case in the system is this seat of the evil, to the system merit[?] the remedy, to act as such, be applied. It is not of the number of these evils to which at the instance of a suitor, a remedy can, on the occasion of each individual suit, be applied, (as in the case of those comprized in the Table) by the Judge.
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  • 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.
  • Title: [9 Jan y 1808 Notes to Judicial Grievance]
    Description: 9 Jan y 1808

    Notes to Judicial Grievance and Remedy Table Table VIII

    Notes

    Ulterior evils to which no so far as distinct from the former no remedy can be applied by the Judge as such, at the instance of a suitor as such

    1. Expence: viz. of the expence actually attached to /resulting from/ the suit in the individual case in question, whatsoever part is regarded as superfluous, avoidable, and in that respect /therein/ as undue.

    If this undue portion of expence be the result of the system - i.e. of the established course and mode of procedure, it is not in the power of any superordinate judicatory, acting merely as such, to apply a remedy, nor therefore in the power of the suitor by any application made on his[?] part to any such judicatory, to call forth the application of the /any such/ remedy.

    If the imposition of the mass of expence regarded as undue be in an individual fact in question, the imposition of the mass of expence regarded as undue be the wish /act/ of the judge, him[?] as pro tanto, an act of misdecision, and to that hand belongs the grievance thus supposed to manifest itself.

    2. Vexation. The same observations that have just been applied to the article of expence, may be seen to apply to the article of vexation, considered as avoidable and undue.
  • 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.