16 March 1808

Letter V

§.6. Reasons

Ends of Justice

Failure of Justice

Misdecision

1. Causes of Misdecision considered as productive of Failure of Justice: and thereby of injustice to the prejudice of the plaintiff's side.

Of the several causes by which failure of justice is capable of being produced, misdecision is the most obvious and most prominent.

Of misdecision, though the appellative and the exterior act designated by it be in both cases the same, yet the nature of the evil produced, is (as hath already appeared) altogether different according as the side to the prejudice of which it operates is the plaintiff's or the defendant's side.

At present the side in question is the plaintiff's. Misdecision bears reference to and supposes rectitude of decision. Rectitude is the property predicable of the decision in so far as it has the effect of giving effect and execution to such of the ordinances of substantive law as apply to the case. Rectitude of decision being the positive denomination, avoidance of misdecision is a negative expression designative of the same result. Either may be employed to designate the secondary end of judicial procedure, or end of justice here in question.

Rectitude of decision supposes a standard of rectitude. In the case where the rule of action has been put into the shape of statute law, it is of the text, i.e. of the words of that law that the standard of rectitude is composed. In this case the law is in respect being laid, genuine and legitimate: the standard constituted and presented by it really existing, being composed of a determinate assemblage of words: those words, chosen, or after choice, approved either immediately by the sovereign himself, or intermediately by some person or persons exercising by his permission, express or tacit, the authority of making laws under the name of laws, expressed by so many determinate assemblages of words.