date

Procedure and Evidence 5 July 1804
Procedure and Evidence

5 July 1804

Ch. non-homologation

''.2.1. Words indeterminable

English law /government/ in respect of certain classes of causes - the causes cognizable /triat is/ in certain particular Courts, admits /allows/ under /through/ a variety of restrictions that reference should be made to the text of this natural and foreign and antient body of law, and that decision should professedly be grounded on it. If in any of those Courts, a passage of any treatise written by any man of law, not a native of England nor writing in England nor writing particularly for the guidance of English Courts, is permitted to be asked in any English Court and to form the basis or any part of the basis of any decision pronounced in any such English Court, then may the passage in question be considered as a portion of engrafted foreign jurisprudential law, of foreign growth engrafted upon the foreign statutory law above mentioned, and imported along with it.

If in any of the same Courts the account given of any decision given in any foreign Court be allowed to be quoted and to form the basis or any part of the basis of the decision pronounced by the English Court in question, whether the decision so given in such foreign Courts have been grounded or not on any part of the text the antient and foreign mass of statutory law so mentioned to have been imported into England above, then and in such case may the account given of such decision be considered as forming /constituting/ another portion of jurisprudential law of foreign growth, imported and [...?] into England /English law/ and adopted by English jurisprudential law, after having been in its nature country[?] engrafted or not engrafted upon the antient and foreign mass of statutory law so often mentioned.
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    Description: Procedure

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    3 ''.2.1. Words indeterminate

    The speaking of jurisprudential law the following distinctions or division will require to be observed - the one taken from /grounded on/ its connection or disconnection with statutory law; the other from the consideration of the country in which it took its rise.

    1. Division of jurisprudential law into self-rooted, and engrafted. When the import and application of a clause or portion of the matter of statutory law has been the subject of contestation in the court of judicature, and the Judge, on the occasion of the decision he pronounces, signifies the sense he ascribes to such clause, the interpretation or construction so put may in so far s it is considered as distinct from the portion of law which it thus interprets, and as constituting in that respect a portion of the matter of jurisprudential law termed a portion of jurisprudential engrafted upon such or such a portion of statutory law. It may be termed self-rooted in the opposite case; viz word has no portion of statutory law to stand upon.

    2. Division of jurisprudential (as it statutory) law into nature, or of home-growth and imported or say of foreign growth.

    The Roman Law, as to some parts of it at least may furnish an example of a mass of jurisprudential law of foreign growth.

    As to the compilation made and published by order of the Roman or rather Grecian Emperor Justinian so far as it extends it may be considered as a mass of statutory law; inasmuch as it has been imagined to a determinate mass of words. Exempting /[...?] made/ this property, and setting aside the unlikely advantage which that property can not but give, in some degree or other to every mass, how ill so ever constructed in other respects, it may be considered as being on a footing with jurisprudential law, involving in a considerable degree all the imperfections that are essential to it.
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    ''.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.

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