10 March 1807

Judicial Justice

Letter V

I. Shapes

1. Misdecision

In the English constitution, a peculiar feature, and as it will appear, a feature of peculiar advantage, is the separation so extensively made or endeavoured to be made in the system of judicature between the matter of law, and the question of fact.

In so far as the separation is made, or understood to have been made the decision on the matter of law is understood to appertain, and is accordingly committed to the permanent Judge or set of Judges: the decision on the matter of fact to the impermanent, ever-changing set of Judges, called the Jury.

In pursuance of this separation, the remedy applied in the character of a correction to misdecision, receives in the two cases a different denomination, and the application of it is governed by different rules.

It is only in the Common Law Courts that this separation has place. In the few instances (individual instances) in which it is made under the authority of the Equity Courts, it is made through the medium of the Common Law Courts.

When the misdecision is regarded as having for its subject the matter of law, the correction is applied by the decision of a superordinate Court, and the decision is called Judgment for the Plaintiff in Error: and the application whereby such judgment is prayed is called a Writ of Error.