date

9 Aug 1804 Procedure Non-homologation
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."
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  • Title: [9 Aug 1804 Procedure Ch. non]
    Description: 9 Aug 1804

    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.
  • Title: [12 Aug 1804 Procedure Ch. non]
    Description: 12 Aug 1804

    Procedure

    Ch. non-homologation

    ''. 8.7. Imposture

    "Four" (says he)      I.70. "if it be found that the former decision is manifestly absurd or unjust it is declared, not that such a sentence was bad law, but that it was not law; that is it is not the established custom of the realm, as has been erroneously determined. And hence it is (continues he) hence "it is" (that is from the employment thus given to the word not in preference to the word bad) that our lawyers are with justice "so copious in their encomiums on the reason of the common law; that that they tell in that the law is the perfection of reason that it always intends to conform thereto, and that what is not reason is not law". Such (he scruples not to assure us) is the virtue of a single word not, when thus happily placed: it not only sets lawyers upon pronouncing these encomiums upon the aggregate of all the nonsense and all the injustice that ever has or ever can have issued from their lips or from their hands - but renders their encomiums " just".

    Upon the closest and most deliberate scrutiny, in every point in which these two species of law are distinguishable statutory has /differ jurisprudential possesses/ to the degree which has been seen the advantage /has been seen to possess the disadvantage./ No such encomiums nor any thing approaching to them where ever bestowed - no not by the blindest or most bare faced of adulators on the work of the /any/ legitimate legislator: there /yet such/ are the encomiums that Blackstone, the copyist, and the mouthpiece and the acknowledged representative of his tribe is not ashamed to lavish upon the boundless and inextricably intermingled heap of sense and nonsense, of justice and injustice, which under the fiat originally of necessity, since of inadvertence or indolence, or sinister interest to usurp the name of law!
  • Title: [20th August 1804 Among dicta, a material]
    Description: 20th August 1804

    Among dicta, a material /an important/ distinction is into direct and collateral. /between directly applicable and collaterally applicable./ Direct a dictum which bears upon the very point in question on which the decision turns. "This very point in question between the parties: collateral commonly called in obiter dictum a proposition, that having two professing to bear upon the point in dispute - upon the principal one (as the phrase of the case in hand /actually before the court/ - that upon some point which may or may not have been the principal point in some prior case: a proposition or rule, which is not pretended to be the rule called for, for the purpose of warranting the decision prayed for on one side depreciated on the other in the case in hand, but which is introduced, as helping to form the ground for that same rule.

    In a word, by a collateral dictum I understand a dictum reprinted as being uttered arguendo as the phrase is.

    A collateral dictum will accordingly be to a direct dictum a directly - applicable dictum what a decision reprinted as being not in point is to decision reprinted as being in print.

    When the dictum is not directly, but only collaterally applicable, there /thereupon/ comes in the question respecting the degree of appositioness or unappositioness: respecting the strength and clearness of the inference as from the dictum cited to the rule requisite to warrant the decision prayed for on one side or the other side.

    As /But/ of divergency and eccentricity in physics, so in psychology and jurisprudential law degrees of appositioness, or rather unappositioness are infinite. And a general observation is, that the number of such authorities collected and thereupon into the [...?] to compare the work, is in the inverse ratio of their appositioness. The more there are of those, the more foreign to the purpose.

    Note

    (a) Jurisprudence, according to Paley, "is a competition of opposite analyses. What comic[?] more just! What satire more severe! Everything that is dear to man left to rule[?], or rather to floral[?], upon a competition of opposite analogies!

    And this in the 19th century, is call Environment!

    This is the [...?] upon which some men, as will be seen affect to suppose it safer and better for the rule of action to stand throughout, thereupon the bases of statutory law.