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.