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9 Jan y 1808 Notes to Judicial Grievance
9 Jan y 1808

Notes to Judicial Grievance and Remedy Table Table VIII

* Postpone the contents of this sheet and the next

Notes

1. Evil produced by Misdecision, to the prejudice of certainty:

This evil has place, in so far as whatsoever may be the effect or tendency of the decision, in other respects, it is seen /understood/ to be repugnant either to the ordinances of the legislature, or to a course of decision regarded as settled, on the part of the same or other judicatories, co-ordinate or superordinate.

2. Evil produced by misdecision, to the prejudice of expediency.

Whatsoever decision operates to the prejudice of certainty, operates pro tanto to the prejudice of expediency. But, supposing the case by which the decision is called forth be an entirely new case, on this supposition, which way soever the decision turn, no mischief can result from it to the prejudice of certainty.

N.B. All the cases, of the decisions on which the body of jurisprudential (so unappropriately[?] Common Law or so falsely called Common or Unwritten Law) is composed, must at some time or other have been new.

If a decision which, considered with reference to certainty, is productive of uncertainty, and in that respect inexpedient, may, in its more direct effects, and setting aside that collateral part of its effects, be expedient and useful: as when, being repugnant to an existing article of Statute Law, its tendency would be purely beneficial, were it not for that article of Statute Law: or where being repugnant to a course of decision, grounded on jurisprudential law, it would have been purely beneficial, had the case which brought it forth been a new one.

In that case there is a purpose of good and a purpose of evil to be set one against another. But forasmuch as mischief of a decision to the prejudice of certainty, the ill effects are capable of spreading over and pervading the whole body of the law the good which can overbalance or counterbalance this evil, must be of a singularly important and extensive nature.
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  • Title: [9 Jan y 1808 Notes to Judicial Grievance]
    Description: 9 Jan y 1808

    Notes to Judicial Grievance and Remedy Table Table VIII

    Notes

    * N.B Where the question, in which the decision regarded as subject to the imputation[?] of misdecision, turned on a question purely of fact, the misdecision can not operate to the prejudice of certainty, unless in /in any other supposition/ so far as it may be considered as being, on the part of the Judge, indicative of a disposition likely to be fruitful /productive/ of in instances of misdecision, on the ground of fact, on other occasions: in which case the duration of the mischief is limited at any rate by the duration of the authority of the Judge.

    It is this limitation that constitutes a principal article in the advantages attached to the judicatory composed of a Judge and Jury.

    To the grievance consisting of /evil produced by/ misdecision to the prejudice of certainty, by disobedience on the part of the Judge & the ordinances of the superior authority, the only direct remedy directly applicable consists in a habit of appropriate vigilance on the part of that supreme authority, a habit showing /manifesting/ itself in the practice of punishing every such act /all such acts/ of disobedience as often as they manifest themselves.

    To the grievance consisting of /evil produced by/ misdecision to the prejudice of certainty by departure of the part of the Judge from a course of decision, regarded as established, viz. in a case regarded as belonging to /governed by/ jurisprudential law, the only efficient remedy consists in the conversion of the rule of action out of the essentially and incurably uncertain form of jurisprudential law, into the form of statute law: giving thereby a certain form of words, to a mass of imaginary and pretended law which of itself has none.
  • Title: [9 Jan y 1808 Notes to Judicial Grievance]
    Description: 9 Jan y 1808

    Notes to Judicial Grievance and Remedy Table Table VIII

    Notes

    If Conceive a nation, in which there are two bodies of law even in the department of substantive law, running counter to each other, with correspondent sets of judicatures, the functions /destiny[?]/ of which coexist[?] in giving execution to those repugnant bodies of law respectively, here is a course of ununiformity of decision the result not of temporary accidents /occasional incidents/ but of a regularly organized[?] and established system of contradiction and confusion.

    Then too /more particularly/ the seat of the mischief is exclusively in the system.

    It is only in the state of jurisprudential law that two such jarring rules of action could exist together. The seat of the disease being in the form, the jurisprudential form in which they are enveloped, the remedy consists, here as before, in the translation of this part of the body of the law out of the jurisprudential form into that of statute law, as above: always understood and supposed, as a necessary consequence, that when it is thus put into the form of statute law, the repugnancies will be done away, one simple rule being substituted all along /throughout/ to two discordant and conflicting ones.
  • Title: [9 Jan y 1808 Notes to Judicial Grievance]
    Description: 9 Jan y 1808

    Notes to Judicial Grievance and Remedy Table Table VIII

    Notes

    3. Ununiformity in the course of decision on the part of one and the same judicatory, comparison being made between its decisions at one period, and its decisions at another period of time.

    In this case taking for the standard of rectitude the decision of the anterior length of time, a [...?] decision or course of decisions is chargeable with misdecision to the prejudice of certainty. In the charge of misdecision is, however, in this case, tacitly involved the supposition that the anterior course of decision was known to the Judge at the time of pronouncing the decision which is regarded as running counter to that anterior course: on which supposition, if regularly /constantly/ [...?] is again involved the [...?] supposition of the existence of some institution whereby decisions, as fast as pronounced are brought to light, and presented to general notice.

    But it may happen that there is no such institution: and that accordingly, for want of it, a course of antecedent decision to any length may, in any part of the field of judicature have been run counter to by a course of subsequent decision running to any length, and that of one or more subsequent decisions or courses of decision, sometimes one starts[?] up to [...?], sometimes another, as it may happen. In this case the power of the Judge being in fact in a proportionable degree arbitrary, and he at liberty, without prejudice to his reputation to decide this way or that way, as he pleases, no decision which he can pronounce is open to the imputation of misdecision.

    In this case /state of things/ it not being in the power of the superordinate judicatory, at the instance of any individual suitor[?], complaining on any individual occasion, to apply any appropriate remedy, neither the grievance nor the remedy but[?] fall within the design and compass of this table.