7 March 1807

Judicial Justice

Letter V

I. Shapes

To one or another of the above heads may be referred every instance of judicial injustice in judicature operating in direct and immediate repugnancy to any immediate end of justice. But the precautions taken by the legislator against injustice from that source would be imperfect and inadequate, were he to fail to apply himself to the exclusion of two other mischiefs which though distinguishable from every one of the above, are intimately connected with them, in the character of causes tending to the production of those effects

These are:

1. Usurpation of jurisdiction

2. Operations productive of inconstancy in judicature: of uncorrected co-repugnancy or inconsistency as between one judicial decision [and] another.

On the part of the legislator, the putting an exclusion as compleatly as possible, upon these several mischiefs or inconveniences may be considered as so many secondary ends of justice.

On the bare mention of it, usurpation will be recognized, as being, what it will be seen to be, an evil. Yet this it would not be, were it not for its aptitude to be productive of the more immediate and sensible intrinsic evils above spoken of, the evils which stand opposed, as above, to the several primary ends of justice.

In like manner, on the bare mention of it, inconsistency in judicature, as above explained, will also be naturally enough recognized in the character of an evil: yet this it would not be, any more than the other, but for its aptitude to give birth to the same more sensible and immediate evils, as will be explained in due time and place.