10 March 1807

Judicial Justice

Letter V

I. Shapes

1. Misdecision

Under statute law every point relative to the words is determinate and not of dispute: what they are, whose they are, in what part of the rule of action, on what occasion delivered.

Under jurisprudential law, the question of law is still resolvable into a question concerning the import of words. But here any point relative to the words is indeterminate and liable to become matter of dispute: what they are, whose they are, or what part of the rule of action, supposing there were one, and on what occasion delivered. In what part of the rule of action supposing any such thing to exist: but here the fundamental misfortune is that no such thing has any existence.

Under Statute law it may happen that the rule of action itself, the article of substantive law in question will be recognised to be erroneous, when compared with the ideal standard of rectitude, composed of the dictates of general utility and natural justice. When any alledged instance of misdecision is presented to the notice of the supreme judicature, if it reside in the same hands or in any part of the same collection of hands as the supreme legislature, here will be an occasion in which, whatsoever be the fate of the judicial decision, amendment may be given to the law. But of this in another place.