JB/034/260/001

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1827 Jany Feb. 7. Copied
Constitutional Code Ch. XII. Judiciary collectively
§. 21. Judges sistitive function

☞ For the Netherlands

Art. 24. The reason is no less decided in favour
of sistition, where the without any such warrant as that
here which is here supposed to be given by real law, stoppage
is made if a decision that would have been given on the ground of a supposed article of common law is made by the
mere authority of a Judge. True it is that by such
in this case uncertainty is produced. But by this uncertainty
thus produced no certainty is destroyed: for that which
has no existence can not be destroyed: and some good is
at the same time done: whereas by doing otherwise nothing
but evil would have been done.

Art. 25. In English practice a known distinction
has place between deciding according to the strict rules
of law and deciding according to the merits.⊞ ⊞ By deciding according
to the strict rules instead
of according to the merits is
meant deciding according
to some rule
devised for by
a purpose a legal
sinister interest as
a pretence for deciding
in direct opposition
to the justice of
the case on the
ground of a mistake
made perhaps for the purpose
committed by a copying
Clerk, or of something
else which has
as little to do with
the nature of the case. By Deciding
according to the merits is meant deciding according to what
every person any reasonable person to whom the judicial
practice were is unknown would regard as being according
to practice.

Art. 26. A practice has of late sprung up of making
decisions according to what is regarded as the merits, in declared
opposition to what by the Judge who so decides is declared as being according to the
strike rule. This Of this practice the effect is better than of that of deciding otherwise than according
to the merits. But how much better the effect would
be if it the departure innovation were authorised by real law, and accompanied by
the obligation of making communication to the Legislature
as in the here proposed mode, is sufficiently evident. Proportionably
so would be the merit of the Judge, who on
pronouncing his decision should give to this declaredly to the here proposed instrument of
certainty the authority of his name.

Art. 27. A foreign admirer of English judicature little thinks
how effectually it is in the power of a copying Clerk or his
Master to sell a pardon to the most atrocious criminal, or
to give to a defendant the property to any amount belonging to
a plaintiff by the instrumentality of those same strict rules of law.

Identifier: | JB/034/260/001 "JB/" can not be assigned to a declared number type with value 34.
Date_1	1827-02-07	Marginal Summary Numbering
Box	034	Main Headings	constitutional code
Folio number	260	Info in main headings field	constitutional code
Image	001	Titles
Category	text sheet	Number of Pages	1
Recto/Verso	recto	Page Numbering	d9 / e9
Penner	jeremy bentham	Watermarks	j whatman turkey mill 1826
Marginals		Paper Producer	admiral pavel chichagov
Corrections		Paper Produced in Year	1826
Notes public	"for the netherlands"	ID Number	10534
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