JB_037_067_001.xml

Title: [1821. May 5. First Lines Divisions]

Description: 1821. May 5.

First Lines

Divisions

Of the manner in which this wretched substitute to real and genuine law is

formed, take this description. In the course of a suit in which

application is made of the rule of action thus composed, the judge, on

each occasion,

pretends to find ready made, and by competent

authority endured with the force of law, and at the same time

universally known to be so in existence, and so in force, a

proposition of a general aspect adopted to the purpose of affording

sufficient authority and warrant for the particular decision or order

which, on that individual occasion, he accordingly pronounces and

delivers.

Partly from the consideration of the general propositions so framed, as

above, by this or that judge or set of judges, partly from the

confederation of the individual instruments or documents expressive of such

individual decision or order as above, or framed in consequence of

and in alleged conformity thereto, partly from the consideration

of such

discourses as have been, or are supposed to have been, uttered

whether by the judge or by the advocates on one or both sides

, a class of

lawyers have, under the names of general

treatises or reports of particular cases conceived in the composition of an

immense and continually

encreasing

chaos — the whole of it written, and a

vast portion of it printed and published, constituting an ever

encreasing

body of that which, having law for its subject, may, in so

far with propriety be termed being not only written but

printed be termed with propriety written though in actual usage

it forms the matter which

passes under the denomination of unwritten law.

049-010.xml

Title: [Procedure + Evidence 5 July 1804]

Description: Procedure + Evidence

5 July 1804

Evil Causes[?]

Ch. [...? ...?]

(2 ''.2.1. Word indeterminate

That it may be seen in what manner that property of indeterminateness in the expression, (and then uncertainty in the import) /is inherent in the matter of/ instances to jurisprudential law, it will be necessary to look into the sources or rather the source from which it flows, and see /observe/ in what shape and in what manner it flows from these or that source.

The materials /matter/ out of which jurisprudential law (in English Common Law in one of the senses of the word Common,) is made may be referred to one or other of the following heads.

1. Decisions judicial: - decisions pronounced by Judges in contested cases on the occasion of individual causes; supposed substance of each decision being preserved either in tenor or in purport by historical statements preserved by professional lawyers, and published (or unpublished). Such statements are in English jurisprudence termed Reports, Reports of adjudged cases.

2. Practice of Courts; viz; in cases not contested.

3. Treatises; Books written by professional lawyers, invested or not invested but mostly not invested, with judicial offices, and having for their subject such decisions and such practice.

JB_082_263.xml

Title: [10 May 1808 I. Reasons Ch.II]

Description: 10 May 1808

I. Reasons

Ch.II. Laws & Pleading simul [...?]

§.2. Simul [...?] sub jure

10. The formularies of pleading are not the only materials of which the sort of law so improperly called unwritten is distilled. Many are the decisions, and vast the masses of unwritten law which have had no such substantive grounds. Decl n.[?] of Judges, general propositions laid down, or supposed to have been, by Judges in the course of those arguments (statements made of the case - the intended decision and the considerations on which under the name of reasons it is grounded) by which the individual decision about to be pronounced in the individual case is preceded and justified, from another class, not to mention any more.

But the formularies are, and are accordingly acknowledged to be, the best and surest. And why the surest? because they approach the nearest to the nature of statutory, called so improperly for the purpose of distinction, written law. In this case though the general rule has neither determinate words nor avowed author, yet the words after consideration of which the particular decision was framed, were many of them of a general cast: and these are a composition, of which not only the uncomissioned Author, but the commissioned and approving Receiver (I speak of the Judge by whom the instrument was deemed good in law) are frequently to be traced: and, on the inspection of any such formulary by laying out of consideration such of the words as are designative of the individualizing circumstances, a general rule may thus be deduced with much more facility and confidence, than from any supposed words of a supposed Judge, the authenticity, correctness and compleatness of which is assured by Judges, on evidence by much too weak to be regarded as admissible in any other case.

Other materials, it can not be denied, are received into the work: general rules, for example, deduced from the above, by the authors of abridgments, and institutional books. But the above are the original sources and the others in proportion as the reservoirs they are drawn from stand farther of and farther from these original sources, lose more and more of their weight.