date

29 June 1805 Evidence Introd
29 June 1805

Evidence

Introd.

Ch. Jurisprudent

''. 3. Sources & decisions

 To be rewritten

''. 3. Sources of Jurisprudential Law.

Jurisprudential law being a non-entity, jurisprudence considered as an art, the art of drawing conjectures, the next thing /objects of inquiry/ to be done is to obscure the sources or materials of conjecture /what there is of reality in the business consists of the sources or materials of conjecture/: the sources from whence the conjectures are to be drawn: the masses of materials out of which the factitious and fictitous laws are to be deduced contracted & deduced.

These sources may be thus enumerated.

1. Judicial decisions: decisions pronounced, opinions given, orders issued by Judges on the occasion of particular suits or causes.

2. Judicial dicta: rules laid down by Judges on the occasion of the decisions pronounced in particular causes.

3. Formularies or memorandums of the practice or procedure of Judges, or carried on under the eyes of Judges, in particular cause, in relation to points contested or uncontested.

4. Articles or passages in Law Treatises, in the form of maxims or otherwise.

5. Opinions extrajudicial of men of law.

6. Supposed dictates of original utility of all these in their order.

Judges putting sources[?] of their own upon the words property and possession in solemn trusting.
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    The materials /matter/ out of which jurisprudential law (in English Common Law in one of the senses of the word Common,) is made may be referred to one or other of the following heads.

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    Here it appears, that even were the collection of these decisions, [...?] the statements of the several cases by which they were reputedly called forth, ever so compleat, a case to ever get as much as feigned but for the purpose of the present argument, state unless some person or other whose talents fitted him for the task came by adequate inducements came to have been engaged to build certain general propositions of a general nature upon the foundation thus laid, were the labour bestowed upon the foundation thus laid, ample as it can not but be seen to be, would be but labour thrown away.

    Accordingly in the histories given of these decisions general propositions of the nature thus described, are never altogether wanting: and thus, changing the metaphor leads /brings/ us to the consideration of the second of the distinguishable sources from whence the [?] represented by the terms jurisprudential or common law, are left to be extracted: viz Dicta: judicial dicta, propositions of a general nature delivered by the Judges, on the occasion of the several decisions regularly pronounced by them in individual suits or causes.
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    Decisions, judgements pronounced by Courts of law in the several individual causes that came before them, from the stock of materials out of which every general proposition of law, in the form of jurisprudential law, is composed: the waste[?] or low[?] [...?] out of which it is distilled, or if to know to which a mechanical figure be clearer than a chemical one the foundation on which it is built.

    Towards the composition of a general rule of action, acessible to every one, the aggregate of the decisions of this sort pronounced within a certain tract of country, within a certain space of time, would not, it is evident, unless in so far as the particulars of those were committed to writing, serves to any considerable extent. If every individual in the country were during his whole life long present in person in every one of the judicial Courts included in it, yes. There would then only remain the difficulty of rememberence, together with a few other such difficulties. But howsoever it might be in regard to this universal omnipresence in other countries, in England it would be contrary to law, and therefore inpracticable: this attribute being an object of monopoly in the hands of the King /having been rendered /made/ a monopoly of to the use of their Royal Seal/ by English lawyers.

    These difficulties being, likewise by the help of that instrument of English law which knows no difficulties, surmounted, before which all difficulties vanish /there would remain for each man the task /individual man, woman & child the operation/ of building the earth upon its foundations or distilling of the spirit from the waste: and these operations might serve for amusement while depositions were reading or doing any other dull and formal part of the represive causes.