date

11 Aug 1804 Procedure Ch. non
11 Aug 1804

Procedure

Ch. non-homologation

''. 8.7. Imposture

This unavoidable and therefore excusable [...?] /recourse/ to imposture is not essential (it may be said) to jurisprudential law: for in the early stages of this species of law it had not existence. The distinction between judicial and legislative power is comparatively of recent growth: and so far as priority /pretension/ can be determined /predicted/ as between two species of authority that have a natural aptitude to grow up together, the demand for each of which must in both instances have presented itself in the very earliest stages of society, judicial power is that which must have been the first of the two to make its appearance, it being that one of the two for which the demand seems most imperious. At its first origin therefore there could have been no such reserve and scruple about meddling with new cases: the newest case had as much /good a/ claim to decision as the most familiar case: nor did the state of society at that time afford any superior authority, which would stand up and say - you are going beyond your bounds. So far the objection.

Thus much it may be said in answer is true. Times there have been it must be acknowledged that in former times this tendency to produce imposture, this demand (one can scarce help saying) for imposture, did not exist. But it is a long time /long ago/ since the state of things has been at an end. At present as long since it has been generally understood, that in respect of novelty of decision judicial authority has its bounds: though owing to the necessarily confused and everlastingly imperfect state of jurisprudential logic, these bounds have never been defined, or so much as been attempted to be defined with any tolerable approach to accuracy. There exists accordingly a general not to say universal unwillingness to pronounce any decision to which the attribute /upon which the [...?]/ of novelty can (it is supposed) attach to pronounce any decision, for the support of which no preceeding decision can be referred to. A future [?] to pronounce any decisions to which any existing set of decisions can be seen found to be /stand/ in opposition.
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