date

10 Jan y 1808 Notes to Judicial Grievance
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.
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  • Title: [9 Jan y 1808 Notes to Table VIII.]
    Description: 9 Jan y 1808

    Notes to Table VIII. Grievance and Remedy Table.

    Notes

    (a) (Grievance). In the technical language of the English Spiritual and Admiralty Courts, any act which being the act of a judicatory is by a party litigant considered as productive of injustice to his prejudice, is in that respect termed a grievance.

    (b) The grievances, mischiefs, or evils here distinguished being correspondent and opposite to so many distinguishable ends of justice - in other words, the ends of justice consisting in the avoidance, or prevention, of so many mischiefs of which a judicatory is liable to be either the theatre or the source - this Table may, to a certain extent, be considered as exhibition and illustration of the several ends of justice.

    Of the judicial grievances or mischiefs for which, as not being respectively susceptible of any corresponding remedy, applicable by the hand of a Judge acting as such, no place could be found in this Table, those which require to be distinguished for any practical purpose, may, it is supposed be thus enumerated /denominated./

    In the case of a grievance, the only good purpose to be answered by the indication of it is the promoting the application of an efficient remedy. Distinction, in regard to the nature of the remedy, requires therefore correspondent distinction in the indication given of the grievance.
  • Title: [10 Jan y 1808 Notes to Judicial Grievance]
    Description: 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.
  • 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.