date

3 July 1805 Evidence Introd
3 July 1805

Evidence

Introd. Jurisprudential

Ch. 3. Sources

''. 2. Dicta

II. Second of the sources or materials of Jurisprudential law, jurisprudential Dicta.

Of a general proposition, delivered from a set of particular ones, this much may easily be conceived in a general way, that it may be of any given extent. It may be so short and narrow as to be capable of holding not even those the two particular propositions containing the least quantity of matter which it is possible for it to hold. viz: the anterior decision and the proposed future decision for the warranting of which it is framed. It may on the other hand be ample: and that to any degree of amplitude which the judge find it agreeable or convenient to give to it.

Scanty /Narrow/ or ample, in as far as it makes law as it goes towards composing the existing body of jurisprudential law it has exactly the same effect as an article of statute law, would have if delivered in same terms, would have: it has either this effect or none: those elements, of this nature and as other is that aggregate rule of action, such as it is, which goes by the name of jurisprudence in English or common law ultimately composed.

A rule of this sort once recognised or law serves if it is evident for the establishment not only of the individual decision for the purpose of which it was [...?] framed, but of all succeeding decisions that can be included in it. In the framing of any just dictum, a provident Judge will accordingly take care to make it wide enough: wide enough to include not only that particular decision, but all such other decisions, the occasion /demand/ for which, are the [...?] of any particular [...?] may be forseen by laws as likely to arise present itself.
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    ''. 3. 1. Decisions

    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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    Where the soil is rich, if no seed be sown, weeds grow /spring/ up in its place /and cover it/. Where no real law has been made, a sort of sham law grows up in its place. On judicature, every decision, judgment, rule order, is insulated and particular: if themselves millions of them could neither make /form/ a law, nor any thing capable of serving instead of one. But the Judge, when[?] no sinister interest creates /intervenes to make/ an exception, naturally goes about to do, as others have done before him: it saves him the trouble of thinking, save him from the imputation of particularity, and from the stance of not having thought /having acted without thought/, when he[?] incapable of it.

    The object then is to find out a case to such a degree similar to the case in hand, that a general proposition may be framed, framed in such terms that both decisions, viz.: the decision already pronounced in the former case, and the decision proposed to be pronounced in the case in hand shall appear to be conformable to it. This done, the decision pronounced in the case in hand is exactly to the effect of the decision which ought to have been /would have been proposed to be/ pronounced, had an article of real law existed, the declared will of a legitimate legislator, conceived in the terms of the general proposition[?] thus framed. In this way a rule or an article of sham law is framed, standing in the place and possessing the [...?] form[?] and virtue as of one article of real law would have had, if [...?] to the same or an equivalent set of words. These general propositions are what in the language of English jurisprudence are called dicta, dicta of the Judges.
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    ''. 2. II. Dicta

    7. Dicta saying[?] of Judges. There are so many portions of spirit, ready distilled, and by the learned operator, from the work rule, framed in the form of general propositions out of the particular decisions, that have been or are supposed to have been pronounced: portions of spirit, ready distilled, and by the licenced operator, from the wash.

    Here again the same species of inquiry present themselves as int he case of the particular decision: antiquity or modernity of the time, goodness of the times, character of the Judge, behaviour of the Reporter, of but one, characters of the respective reporters if more than one.

    The dictum, in any /each/ given instance, has it or has it not any specific ground - any particular assignable decision or decisions to rest upon? If it has, then comes the question as to the validity of the ground - as to the legitimacy of the informer as to the sufficiency of the particular decision to support the general conclusion thus drawn from it. In this single topic as may in /may be seen/ matter for debate, cause for uncertainty, without end. A dictum will stand clearer of dispute where the decisions it were drawn from use unassigned dicta and unfindable, than when the they are assigned and [...?]. Where its title to confidence is least clear, it will have /be apt enough to possess/ the best chance for confidence. A dictum is never so strong, as when it has not ground to stand upon. /nothing to stand upon itself./ Reasons may gain the appearance of strength, but they give real weakness. This is no secret to a prudent Judge.

    In genuine law, statutory law, that is a good law for which good reasons can be given, and those sufficient ones; that a bad law for which no reasons can be given that are good, or none that are sufficient.