date

9 Aug 1804 Procedure non-homologation
9 Aug 1804

Procedure

non-homologation

eulogized by Lawyers

In what part of that matter /the work/ from whence jurisprudential law is distilled had the people any part of the people besides the Judges the King, Judges at any time owning the smallest share. What judge was ever named /placed, what Judge was ever displaced/ by the people or any part of the people - what Judge was ever placed or displaced by any body but the King? To what decision /rule/ of jurisprudential law did the people or any part of the people ever give any previous consent, or any subsequent consent, any otherwise than what is given to it in Morocco, viz: by not resisting it.

Looking to /As far as depends upon/ the source what is the real characteristic of jurisprudential law in contradistinction to statutory? That in the framing of statutory law the body of the people have to a very considerable share - as great a share (as far as I can see) as would be of any use of them - in the framing of jurisprudential law (for the part taken by Juries is not preserved /work of Juries [...?] as fact as produced/ and contributes nothing to the matter of this species of jurisprudential law) in the framing of jurisprudential law the people have not any the smallest share.

By what instance /On what pretence/ /contrivance/ is an assertion on the bulk of universal experience endeavoured to be supported? By setting people to look at times /turn their eyes to /toward/ the darkest of antient time/ of which we know nothing. In all traces of which we know any thing to signify what has been done in the way of jurisprudential law has been done solely by the Judges no part of it by the people: but there are times viz: the Saxon of which we know next to nothing: in so far as we know not what was done in those times, it can not be proved that what was done in those times was done by the Judges: therefore without proof or the shadow of proof, and against all probability not to say possibility we are to say it was done by the people.
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    Description: 1805

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    Among /At the head/ the causes which prevent jurisprudential law from being any thing better than a wretched succeedance[?] to /miserable makeshift for/ statutory law we have already had occasion to observe the circumstance of its origin - the incompetence of the authenticity /source/ from whence it issues. Under every constitution this incompetence is evidenced by the consideration that the individuals whose will real or imagined is thus invested with law /endowed with the effective force of law/ are so circumstanced, as not to be qualified either by power or by practice for considering the field of legislation in any of these points of view in which it is necessary and customary for the legitimate legislator to be continually /constantly/ contemplating it. Under the popular constitution of the British Island /Britain/ as already observed this incompetence is further enhanced, and that in a prodigious degree by the consideration /circumstance/ that, whereas in the framing of statutory law /determination of the general purport/ and character of statutory law, the body of the people have a very considerable and effective share, in the determination of the general purport and character of jurisprudential law, the body of the people have no share whatever, not more than in the most /purest/ absolute monarchy that is to be found.

    What on this occasion has been the recourse of the man of law? I speak of Britain here /The present topic is confined to Britain,/ as the only country on which on the strict ground of the virtues[?] upon constitutional principles it is competent to a lawyer to place this /carry a/ circumstance of this sort to the account of advantage. What [...?] in speaking of British law has been his recource? To deny the existence of the sun at noon day while his eyes are smarting under its lustre: in the praise lavished upon his god /goddess/ /idol/, to speak of the popularity of his /its/ origin, as a /property/ /qualification/ not only belonging to him /it/ but possessed by /appertaining to/ law enjoyed in a supereminent degree.

    One thing, and but one thing, was wanting to the audacity of the imposture: and that was to deny that the body of the people have any sort of share or influence in the production /fabricating/ of statutory law. In /Can/ the part they /parties they excuse[?]/ take in the composition of statutory law be in any other respect more notorious, than the fact of them having no part whatsoever in the framing of jurisprudential law?
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    ''. Utility where carefully

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    Some portions of the field of law are clearly and at all times out of the reach /domain/ of jurisprudential law: and on these grounds, the business if done at all must be done by statutory law, and therefore by the light of that principle - the principle of utility, which it is so natural and usual to statutory law and so unnatural or at least so unusual for jurisprudential law, to look to for its guidance.

    One example is that of the law of finance. Amongst the incapacities /imperfections/ of jurisprudential law as already noted, is the incapacity of fixing quantities. But this is the chief and constant occupation of the law of finance, determining what sum of money shall be paid by this or that person individual or sort of person, upon this and that occasion. On this ground all the media of argument ever employed were employable by jurisprudential law would be absolutely at a fault. It may determine that in general the father shall bear the burthen of providing maintenance for his child: but in the case of insufficiency on the one part and sufficiency on the other, the child shall bear the burden of providing maintenance for the father: but as to the quantum of the provision in each instance, there is a point which no train of argument among the sorts of arguments at its command will ever enable it to reach. In each case it may declare that as a Judge in talking on the subject on /from/ the bench may declare in general terms, that according to such rule as he finds himself able to collect from the sources /his oracles/ of jurisprudential law - the precedents - the decisions - the dicta - the treaties that have come under his revision - what /the quantity which/ is sufficient and proper for the purpose is the quantity which the individual in question is as the case in question bound by law to provide. But in any given individual instance to determine how much a /per/ year, per month or per week shall be allotted to that purpose these are questions to which it is impossible that any thing he can have found in his /those/ oracles can apply itself: to settle the quantity, if not already settled by statutory law, is a task that on each individual occasion must be referred to some individual functionary to be appointed by somebody or other for that purpose.
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    Procedure

    Ch. non-homologation

    ''. eulogized by lawyers

    1. One /A leading/ artifice is and that a leading one is to misstate the source from whence to follows: to make the people take it /the body of the people/ look upon it/ for their own work, instead of being the work of a set of lawyers placed by the Crown /King/ and in a state of the most compleat dependence on him all comparatively of late years.

    A contrivance /An attempt/ like this, is like an attempt to make men /get men to/ believe that [...?] issue from /rise out of/ the sea. Not a day in the year, at least not a judicial day, in which their sense do not assure them of the contrary: but it is the practice /constant aim/ of lawyers and but too often the successful practice, to parade men /call upon men/ to believe errant nonsense above the evidence of sense.

    "It is one of the characteristic marks of English liberty" (says Blackstone)      74 that our common law "(the jurisprudential law) depends upon custom, which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary consent of the people".

    [Thus says Blackstone. What says Truth? - Truth starting in the face /printed in the retina/ of every man who does not purposely shut his eyes against it.] /has not been determined against seeing what passess daily under his own eyes/.

    Depends upon custom, yes: in the same sense as in Morocco law depends upon custom, and no other. Custom on the part of the Judge to cal for /command/ obedience: custom on the part of nation - on the part of the people in their capacity of suitors, to bestow it /yield obedience/. Not but that in all points, good and bad together, English judicature is as opposite as possible to that of Morocco: but that in the framing of jurisprudential law (setting aside the function of Jury /part taken by Juries/ which is not here in question) the people have no more share in one case any more than in the other.