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See Ms v. 23. The unhappiness about the Law that may be seen to flow from
judicial decisions which the Law is seen to leave behind it in its course proceeds from two causes:
1st from their losing sight of the principle
of Utility altogether: 2dly From
the obligation they were in of sacrificing
private utility to the public.+ + in many cases where the two utilities were not in their nature irreconciliable. This an
obligation that was laid upon them by the
limits of their powers.
There were two ways to have remedied this bitter
head of inconvenience. The one was, by
an intermixture of the judicial and legislative
authorities in one person or set of
persons: the other by establishing a more stricter
<add>
& more ready</add></del> intercourse than what has yet
subsisted between those two powers
when lodged as they have allways been in different hands.
In all those cases where the utility of
the decision between as applied to the individual case in question stands opposed
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to the its utility as a precedent general rule, the
way to reconcile them would have been this:
compass the particular utility by a judicial
decision operating only in inde praeteritum concerning the first:
compass the general utility by an act
of Legislation to operate only in futurum:
By this means [+] [+] no pain of disappointment could be produced. expectation would not be thwarted
in any respect: the decision would
follow it: the Statute would set the lead to
it.
When sacrifices thus made of particular utility
to general are thus seen to be frequent
the mischief of them does not rest in the
individual case: the more there are of them
the more those who observe them find reason
to apprehend least their own should
be of that sort. When a man sees how
many contracts actually made and intended
to be made have been rescinded contrary to the expectation of a party benefited
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by them been rescinded, he is alarmed
at thinking fo that for aught he knows
his own may be in the same case.
A decision which determines that a deed contract
shall be used for want of such and such being executed or
formalities and because it has such a it is not so used
meaning so expressed in such a manner so expressed shall not have the effect
it was meant and understood to have determines that, under the want of such circumstances
tho' really executed it shall
be treated as not executed; and tho' really the purport
of it be intelligibly expressed , shall be when as if not expressed.
another For if The essence of these
adjudications is therefore to defeat expectation
as to the past matter. For if this expectation
did not in fact subsist in the case that of itself
would be a ground for making the deed void:
if owing for want of such guards expedients for an
impostor had ventured to allege that in question
as a case where such a deed contract to that effect was
really extended into and consequently in an expectation
correspondent to it raised whereas in truth there was [+] [+] no contract, no Expectation
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Suppose a Legislator by a Law Statute sufficiently
notified to have presented the Ceremonies
necessary to give solidity to a
marriage such for example such as are necessary
with us: and to shew and, over and above this to shew his
sagacity, were to make another secret
Law that requiring the married couple to jump
over a stick: in default of which the
woman should be a Concubine, and the
Issue Bastards. What should we think
of the Legislator and his sagacity? such
precisely is the sagacity and such the wisdom of
Judges who without warning given have
established words merely technical as
necessary to give validity to Wills and contracts.
The benefit usefulness of these rules depends upon two
things: 1st upon the aptitude of the expression
selection chosen: & upon the notice given of them.
INTROD. Utility applied to the transmission of Pro [BR][ ][ ] -perty; and Contracts &c. Words Technical in Deeds Law Common.
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introd. utility applied to the transmission of property, contracts &c words technical and deeds law common |
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