7 March 1807

Judicial Justice

Letter V

I. Shapes

Misdecision may have for its subject the matter of law, or the matter of fact. In judicature, by whatever final decision is pronounced having for its subject an event or state of things considered as already past, comprehends necessarily these two points: that an act, an event, or other state of things alledged by the plaintiff as constituting the ground of his demand - of his right to that service which he prays may be rendered to him, of that act which he prays may be done, of that decision which he prays, may be pronounced in his favour, by the Judge, was at a particular point of time in existence:- this is the matter of fact:- and that such is the state of the law, the tenor of it real or imaginary, as to impose upon the Judge the obligation, or at the least invest him with the right, to render to the plaintiff the service so demanded.

In like manner what is here said applies with equal propriety to any counter-allegation made on the Defendant's side.

In the case where the ground of the plaintiff's demand is on the part of the Defendant some injury, by the infliction of which a transgression of the law has taken place - some act by which a command positive or negative, delivered or imagined to have been delivered by the legislator - the service demanded on the part of the Judge consists commonly in the performance of whatsoever operations are necessary to the causing the defendant to receive punishment, or the plaintiff to receive satisfaction (as for the injury) at his charge. In every such demand two allegations are necessarily involved: viz: that, by the defendant an act of a certain description had within some determinate length of time been performed: and that to the performance of an act of that description the law, real or imaginary, has, or at that time had, annexed an obligation or right on the part of the Judge, to do the act which the plaintiff prays him to do in consequence.