date

Procedure + Evidence 5 July 1804
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preserved either in tenor or in purport by historical statements preserved by professional lawyers, and published (or unpublished).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.
Similar Items
  • Title: [5 Aug 1804 Evidence Ch. non]
    Description: 5 Aug 1804

    Evidence

    Ch. non-homologation

    ''.2.1. Words indeterminable

    In scrutinising into the nature and characteristic properties of jurisprudential law, let us for propriety sake, set aside the circumstances of complication indicated by the terms engrafted law and law of foreign growth as above explained, confining our consideration /view/ in the first instance to that part which is self-rooted and of hence[?] nature growth and self-rooted. The main mass being seen through and understood, the accidential additaments and varieties will afford /cause/ /give/ little trouble.

    In like manner in the examination speaking of that which is native and self rooted, let us confine ourselves /our view/ in the first instance to the case in which it has the report or reports of particular assignable decisions for its source; postponing for the present the case in which it takes for its ground either the uncontested practice of this or that [...?] Court, or a passage or number of passages in this or that treatise or number of treatises. Thus accordingly will be found by far the purist, the clearest, the highest of all three.
  • Title: [13 July 1804 Procedure & Evidence]
    Description: 13 July 1804

    Procedure & Evidence

    Introd.

    Ch 8. Collateral Incidental 3. Delay

    '.1. Sources

    I The operations having respect to the question of law may be thus enumerated -

    1. Where the article of law in question is an article of statutory law, and no more articles than one are considered as bearing upon it /the subject/ reference to the terms of that one article - and discussions between party and party relative to the import of it.

    2. Where divers articles of statutory law are considered as bearing upon the subject, and the question turns upon the disposition /sense/ to be inferred /extracted/ from a comparison of them altogether, reference to such articles respectively, and discussions relative to the import as before

    3. When the article of law in question is a supposed article of jurisprudential law, reference to the several sorts of authorities considered as sources of argument in that sort of law: viz: /such as/ decisions on[?] contested cases, memorials of judicial practice in uncontested cases or on points uncontested - general inferences drawn from such particular decisions in treatises ancient or modern - and so on. reference to these several authorities, as cited on both sides - and discussions relative to the degree of weight to be respectively ascribed to them, and the opposite inferences capable of being drawn from them

    4. Where one or more articles of statutory law are considered as bearing upon the point, and these articles, one or more of them already given occasion to /been the subject of/ decisions grounded on them, in virtue of which decisions a correspondent portion of jurisprudential law is also considered as bearing upon the same point, hence comes a fourth sort of operation sort of composite operation /set of operation/ compounded of the first and third, or of the second and third of the those beforementioned operations.
  • Title: [29 June 1805 Evidence Introd]
    Description: 29 June 1805

    Evidence

    Introd.

    Ch. Jurisprudent

    ''. 3. Sources & decisions

     To be rewritten

    ''. 3. Sources of Jurisprudential Law.

    Jurisprudential law being a non-entity, jurisprudence considered as an art, the art of drawing conjectures, the next thing /objects of inquiry/ to be done is to obscure the sources or materials of conjecture /what there is of reality in the business consists of the sources or materials of conjecture/: the sources from whence the conjectures are to be drawn: the masses of materials out of which the factitious and fictitous laws are to be deduced contracted & deduced.

    These sources may be thus enumerated.

    1. Judicial decisions: decisions pronounced, opinions given, orders issued by Judges on the occasion of particular suits or causes.

    2. Judicial dicta: rules laid down by Judges on the occasion of the decisions pronounced in particular causes.

    3. Formularies or memorandums of the practice or procedure of Judges, or carried on under the eyes of Judges, in particular cause, in relation to points contested or uncontested.

    4. Articles or passages in Law Treatises, in the form of maxims or otherwise.

    5. Opinions extrajudicial of men of law.

    6. Supposed dictates of original utility of all these in their order.

    Judges putting sources[?] of their own upon the words property and possession in solemn trusting.