29 Feb y 1807

Judicial Justice

Letter V

I. Shapes

The articles of misdecision and maintenance of uniformity require ulterior consideration.

In regard to misdecision, the mischief of it differs materially, whatever be the cause or object of demand according to the nature of the subject of decision - i.e. according as it is the matter of law or the matter of fact: the mischief, and thereupon accordingly the remedy: the mischief viz. in respect of the remedy which it admitts of in the one case and not in the other.

Where the subject of decision is the point or question of fact merely, in this case be the state of the law ever so uncertain and uncognoscible, it admitts of an ever changing Judge or set of Judges: such for example as an English Jury. In this case, the mischief of misdecision is comparatively light: the suffering extends, not beyond the individual, or at most beyond the circle of the connexions of the individual, to whose prejudice the misdecision operates. On such a day, in such or such a cause, a Jury gave their verdict. The verdict was unjust, and in that sort of case which exists to no small extent, in which a new trial could not be granted. So much the worse: but however there ends the mischief: at any rate so far as that set of changeable judges is concerned: for the same set will not meet a second time.