date

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

Notes to Judicial Grievance and Remedy Table Table VIII

Notes

In this case the more obvious remedy consists in the attaching to every judicatory, the decisions of which are suffered to operate as above, in the way of precedent, forming /adding/ pro tanto the matter /to the mass/ of jurisprudential law, an institution productive of the effect abovementioned, i.e securing a universal regular and adequate degree of notoriety to all such decisions as they come /it happens to them/ to have been pronounced.

But if any such institution, the operation would be but prospective, leaving the decisions of past time in the same state of uncertainty in respect of notoriety as before.

In this case therefore, as in so many others, conversion of jurisprudential into statutory law presents the only effectual and adequate remedy and recourse.

4. Ununiformity of the course of decision between one judicatory and another.

A mischief of this description can no otherwise have place than between two or more co-ordinate judicatures considered as co-ordinate: if of two judicatures one be superordinate, the other subordinate, a decision which being pronounced by the subordinate, runs counter to a decision of the /its/ superordinate, falls pro tanto under the imputation of misdecision, one of the grievances comprized in the Table.

If the judicatures as between which the ununiformity has place be with relation to each other co-ordinate, the mischief has its seat in the system, its source in the same state of things as in the case last mentioned, as also the same remedy.
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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

    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.
  • Title: [9 Jan y 1808 Notes to Judicial Grievance]
    Description: 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.
  • Title: [10 Jan y 1808 Notes to Judicial Grievance]
    Description: 10 Jan y 1808

    Notes to Judicial Grievance and Remedy Table Table VIII

    Notes

    5. Insubordination or say anti-constitutional disobedience on the part of the Judge, as towards the supreme legislator,[?] and his ordinances.

    As in the station of a Judge, nothing can be done, good or evil, but by decision or non-decision /forbearance to decide/ - nothing evil but either by misdecision or by non-decision when decision is done[?], or[?] either by delay in deciding, or by denial of justice, this grievance is consequently resolvable into one or other of the grievances comprized in the Table; and the remedy, pro tanto, into one or other of the remedies corresponding respectively to those grievances.

    But as in this case there exists on the part of the Judge, an instance of transgression committed, of contempt manifested, as against and towards and against the authority of his constitutional superior, the legislature - in a word an offence culpable or, according to circumstances in a greater or less degree criminal, punishment applied to the offending functionary is a remedy the application of which may come to be as necessary in this as in any other instance.

    This, though a remedy applicable by a superordinate judicatory, not being of the number of those the application of which has for its occasional cause[?] the complaint of a party aggrieved acting as anti[?], and calling for the application of this remedy, comes not within the purview of the Table. The party aggrieved in this respect is no other than the legislator. To any evil sustained by the /an/ individual aggrieved by the act of misdecision or non-decision by which the contingent[?] authority of the legislator has been manifested, punishment applied to the offending Judge, applies not any remedy.