date

10 Jan y 1808 Notes to Judicial Grievance
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.
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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

    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: [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: [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.