date

15 May 1806 Evidence Jurisprudential
15 May 1806

Evidence

Jurisprudential

Observe then, that though in the making of the decision each puisne Judge bears and equal part with the chief, yet except in here and there a rare case in which the judgement of the Court is delivered by a puisne judge what is said is said by the Chief: the others may all or any of them oppose /protest against/ it as they please: but any such protestation or precedent is scarcely to be found. Though the decision /what there is of judication/ must be acknowledged to be the act of the whole court, yet the acts of legislators passed upon the occasion of the judicature, are each of them the acts of a high Judge: most commonly of the Chief: but at any rate of one single Judge. The chief has in this way made a law: this law is not altogether to the mind of this or that one of the puisnes? It knows better than to make any formal proposition or protestation against it: no: he lets that law /to send the matter, if in his opinion the matter send [...?]/ pass, and he makes another such law of his own. Decisions, acts of judicature are put to the vote: dicta, that is to say laws, such as we have been seeing are never put to the vote. Trifles such as this, little less than a compleat code of criminal law composed in six words contrary to morality or sound policy are not put to the vote: de minimis lex non curat. What is the consequence? Is the dictum of the Chief the only one /dictum [...?]/? pure unbounded despotism: is it followed by other dictums from other parts of the same bench? Despotism with contradiction and uncertainty to sully it.

Let us confine ourselves /our view/ to the chief: in this sort of vice[?] his visit is unquestionably the most fruitful /[...?]/ /fruitful/. What under such law must a man do to be saved. He must know, know as /in relation/ to every part of his conduct, know in relation to every thing /end/ which he can propose to himself to do or not to do, know all his life being /throughout the whole course/ of his life, what the opinion is of a man who knows not what it has himself: he must confine himself to a will which it is not so much s permitted to him to act to know.
Similar Items
  • Title: [9 Aug 1804 Procedure Non-homologation]
    Description: 9 Aug 1804

    Procedure

    Non-homologation

    eulogized by Lawyers

    Oh but says Blackstone judicial decisions are not the sources of the customs it is not by them that the customs have been established - all that they do are to evidence it when made /after it has been established./ Thus says Blackstone what says Truth? Of all the rules that can be found not twenty nor the pages are to be found /now acknowledged for law/ that are not to be traced to this or that assignable decision as their source. Of all the jurisprudential law of which we know the origin, judicial decisions are the manifest source: seeing this for what lawyer is there that can avoid seeing it, he calls upon us to take for granted that every rule for which we do not see the source, had its source in some thing else.

    If the matter of "Common Law" "properly so called" which he speaks of in the same line as having General Custom for its synonym /being the same thing with "General customs"/ he gives a number of samples. The fourth (I pass over the first three only because they would require more words) consists of "the rules of expounding wills, deeds, and acts of Parliament." But of all these rules is there a single one that is not seen to have its source either in some decision, or in some dictum as the phrase is delivered on the occasion of some cause by some person known to be a Judge?

    NOTE: a I. 69. "These judicial decisions are the principal and most authoritative that can be given, of the existence of such a custom as shall form part of the Common Law."
  • Title: [26 Jan y 1808 Codification Jury Trial]
    Description: 26 Jan y 1808

    Codification Jury Trial

    Jury Trial

    Horse

    Take as before the case of sale. Whether in virtue of the transaction between him[?] and the plaintiff on the subject of the horse, a sale of the horse took place, the defendant being bound to know is supposed to be capable of understanding and accordingly to have understood /accordingly/. Supposing the law as that subject to be the state[?] of statute law, and the word sale to stand as part of /one of the articles of/ that statute law, and the plaintiff's demand to be grounded in that article, the import /meaning/ of that word is supposed to be perfectly known to and understood by law, and he consequently to be a compleat and sufficient judge of it.

    Take the same man and put him into a Jury box, invest him with the function or at least with part of the function of a Judge, whose duty it is to decide according to law, and in and by so doing to give effect and execution to the law, to give efficacy and fulfilment to the engagements taken by the law, immediately[?] all his knowledge of the law, of the very same portion of the law - all his capacity of forming a right judgment on the import of the words of which it is composed, is according to them to be supposed to vanish /have vanished/. Party to a sale between himself and A he knows what a sale is. party to a sale between A and B. he knows nothing about the matter. A /The/ man who has been occupied /employed/ in selling all his life long[?] /from his childhood/ and hose subsistence has depended upon it, knows not what selling is: to find a man who knows what selling is, you must[?] to a [...?], filled by a set of [...?], no one of whom perhaps, judicial delay excepted, ever sold any thing in his life.
  • Title: [1816 Acts Acts Ch. XXIV]
    Description: 1816

    Acts

    Acts Ch. XXIV

    4

    14. to 21 In a way they call heresy I own I worship the God of my fathers, believing all things in the law and prophets. With them I believe in a resurrection of just and unjust. With a conscience void of offence I came to bring to my nation alms and offerings. Finding me purified in the Temple neither with multitude nor tumult, had they ought against me they ought to have been here before thee. Except that I cried that it was touching the resurrection that I was called in question (before you? this day) let them say if they have found any evil doing in me before the Council.

    5

    22 Hearing this and having more perfect knowledge of (that) way Felix deferred saying when Lysias the Chief Captain is come, I will know the uttermost of your matter. — Centurion thereupon commanded to set Paul at liberty. ‘ keep him and let his acquaintances come and minister to him.

    Acts Ch XXIV

    6

    24. Certain days after comes Felix with his Jew wife Drusilla, sends for Paul and hears him about Christ.

    7

    25 Felix (trembling as Paul reasoned of righteousness, faith, and judgment) Go thy way for this time: when I have a convenient season, I will send for thee.

    8

    26. 27. Expecting money from Paul to be loosed he sent for him the oftener and communed with him. But two years after ‘Porcus Festus came in Felix’s room: and Felix, willing to do the Jews a pleasure, left Paul bound.’

    Acts Ch. XXV.

    Verses 27.

    1

    1 to 5. Festus, in the province, ‘after three days ascended from Cæsarea to Jerusalem. High Priest and chief Jews besought him to send Paul to Jerusalem, thinking to kill him by the way. Festus. Paul shall be kept at Cæsarea. Thither I shall be shortly, then and there you may accuse him.

    2

    6 to 9. In about ten days, gone to Cæsarea, at his command Paul was brought to his judgment seat, the Jews from Jerusalem bringing grievous charges which they could not prove. Paul — Neither against Jew law, nor Temple, nor Cæsar have I offended. Festus (willing to do the Jews a pleasure) ‘Wilt thou go to Jerusalem, there to be judge of these things before me?

    3

    10 to 14. Paul ‘I stand at Cæsar’s judgment—seat, where I ought to be judged: to the Jews have I done no wrong, as thou very well knowest. If I have done any thing worthy of death I refuse not to die if not no man may deliver me unto them. I appeal to Cæsar.’ Festus. (after conferring with the Council) Hast thou appealed to Cæsar? To Cæsar thou shalt go.

    After certain days, came Agrippa and Bernice to salute Festus. Many days after Festus spoke of Paul to them.

    Acts Ch. XXV.

    4

    14 to 20. Festus. Left in bonds by Felix, there is a man, about whom at Jerusalem the Chief Priests and Elders informing me, desired judgment against him. Said I, before the accused is confronted with his accusers with liberty to speak for himself it is not the custom of the Romans to put him to death.

    Therefore on the morning after their arrival, the man at my command being brought before the judgment seat, they brought no such accusation as I expected .. only made some questions about their own superstition, and on Jesus, who was dead but said by Paul to be alive. Doubting about such questions I asked whether he would go to Jerusalem to be judged. Paul claiming to have his cause reserved for the hearing of Augustus, I commanded him to be sent accordingly.

    5

    21 to 23. Agrippa. To morrow I would hear the man myself. Festus. Thou shalt. Next day before Agrippa Bernice Chief Captain & principal men coming in great pomp Paul was brought forth.

    6.

    24 to 27. Festus. Ye see this man against whom the Jews have been crying out, that he ought not to live any longer. Finding nothing death worthy against him, he having appealed to Augustus, I had determined to send him: but know not what to write. So I have brought him here for examination unwilling to send a man a prisoner, without assigned cause.