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.