date

3 July 1805 Evidence Introd
3 July 1805

Evidence

Introd. Jurisprudential

Ch. 3. Sources

''. 2. Dicta

There are some dicta that will serve for almost anything and serve to considerable experience in the way of precedence as for example "whatever offends against the order and good morals of society is an offence against the law of England, and punishable at common law. Jones v. Randall, I.T. in G.3 K.B. [...?] 383.

[...?] 1737.

Take again the case of libel

2. Take another instance. "If you except these appropriated cases, this court is the [...?] mores[?] of the people, and here the superintendary of offences contrà bonos mores: and upon this ground both for Charles Ledley and [...?], who had been guilty of offences against good manners, were prosecuted here."

3. If the reports that have been published of a dictum of very /rather/ recent date be to do be depended upon (laws of this kind are presented of course to chance for their existence) the definition /general idea/ attached to the word of a libel would of itself stand within place of a statute law of party[?] considerable extent. A libel says this doctrine is any published writing by which the feelings of any man may be hurt. According to a /another/ dictum of long standing, and of equal authority /equal in/ authority, superior in age "In cases of criminal prosecution the truth of falshood of the charge is /"was"/ totally immaterial, the charge itself being the libel". Of the two dicta laid together, just a Statutes being a priori [?] are always laid together, the result seems to be, that if a man about to publish a book in England would wish to be safe, a point personally to be gathered a preliminary point which it will be necessary for him will be, whether there be any body in the /any where/ country whose feelings would be hurt by it: or in other words who would be displeased with it.
Similar Items
  • Title: [7 June 1805 Evidence Introd]
    Description: 7 June 1805

    Evidence

    Introd. Jurisprudential

    Ch. 2. Sources

    ''. 2. Dicta

    '. Second source. Judicial dicta.

    Judicial dicta was the sort of raw materials that come nearest to the nature of a law. As to particular decisions, except in the comparatively narrow case that will presently be mentioned the case in which they stand convicted with certain [...?] which by referring to them expressly or totally they certainly include, they afford of both or as matter applicable to this /the/ purpose in question, otherwise than in virtue of the dicta to which they happen to give birth.

    These dicta supposing the words of those ascertained and registered, would as far as they want[?] want nothing but the authority attached to the person of the legislator to convert them into so many real laws or portions of real law.

    For writing on publishing a printed paper, a man is prosecuted for example in the court of the King's Bench, the paper being to that purpose denominated a libel. On the trial, or on some other occasion in the course of prosecution, a dictum is any such /some such/ effect as the following is uttered by what is called the Court by the presiding Judge, and nothing said against it by any of the others - "The Court of King's Bench and the austos mores of the nation : every offence /act/ that is contrà bonos mores is punishable as such by this Court. Or very [...?] act that is an offence against good order is cognizable in this Court. Or the alledged libel being charged with being offensive to the Christian Kingdom //

    Christianity is the law of the land: or Every discourse by which the feeling of an individual may in any way be hurt, (the same being committed to writing, and printed /made public/ or otherwise published) is a libel, and not the less so, for being true. The words in these several cases being ascertained it were easy by the addition of the requisite compliment of other words to compleat them into the form of a portion [?] of real law: such as is recognised by the official legislator, would constitute so many articles of Statute law.
  • Title: [1820. Oct. 13. Spanish liberticide measures]
    Description: 1820. Oct. 13. Spanish liberticide measures 7 §. 2. Press violation Reasons

    against libel law

    As to religion, to prosecute for any thing written against religion, is as much

    as to say – religion is an imposture. For it is the distinctive character of

    truth /true opinion/ {that it can not suffer by any thing said against it unless

    for a time by some /by possibility a/ misrepresentation /false assertion/ in

    regard to some matter of fact it can not suffer by any thing said against it,

    and therefore needs no such protection and even by the distrust thus manifested

    is hurt by it.} that it needs no such protection: and of falshood, that it not

    only needs it but that it can not stand without it.

    I say written. For as to the speaking against religion, if it be in public, or

    the placarding against religion in a public place, here there may be cause /the

    existence of […?]/ for prosecution and punishment is not impossible. Here indeed

    may be mischief: but in what shape? Not in the shape of an offence against

    religion, and that for the reason above given /just brought to view/: not

    against religion, but against the feelings of individuals – of an unlimited

    number of individuals in a number to which very frequently no limit can be

    assigned. Reading what is simply written or printed is what any body and every

    body may avoid – hearing what a man is speaking in public reading what is posted

    up in the large characters employed on placards is what it may be out of a man’s

    power to avoid. In either case The offence belongs to the class of semi public

    offences, and to the generic denomination Offences against ease of mind: Simple

    mental injuries.
  • Title: [15 May 1806 Evidence Jurisprudential]
    Description: 15 May 1806

    Evidence

    Jurisprudential

    Ch. II. Vices

    2. 1 Arbitrary

    Per L. Mansfield in Jones v Randel. Cowp. 39.

    "It is argued and rightly, that notwithstanding it is not prohibited /(over a wager the sort of wager in question) by any positive law, nor ajudged/ illegal by any precedents, yet it may be decided to be so upon principles; and the law of England would be a strange science indeed if it were decided upon precedents only. Precedents seems to illustrate principles, and to give them a fixed certainty. But the law of England, which is exclusive of positive law, enacted by statute, depends upon principles: and these principles run through all the particular cases according as particular circumstances of each have been found to fall within the one or other of them."

    The question then is, whether the wager is against principles? if it be contrary to any, it must be contrary either to principles of morality; for the law of England prohibits every thing which is contra bonos mores, Or it must be against principles of sound policy; for many contracts which are not against morality, are still void as being against the maxims of sound policy."

    Conceive a Bill, introduced in those terms for Whoever does any act /which in the opinion of the Court of Kings Bench/ contrary to morality or contra bonos mores shall be punished by force to any amount of imprisonment for any length of time that the said court deem proper.

    ''.2. Whoever does any act that in the opinion of the said court is contrary to sound policy, shall be punished as aforesaid.

    ''.3. Every contract contrary to sound policy, is hereby declared to be void.

    Conceive a Bill couched in any such terms introduced by the administration into either House of Parliament - what would the opposition, what would the House say to it?

    Conceive, if the supposition be not too odious to be rendered for a moment even in the character of a supposition - conceive a Bill in any such terms, or to any such vague effect, passed acts[?] law: what would the public say to it?

    Such was the sort of law made by lord Mansfield: such the course taken by /way he took/ him to make it: and certainly - but too certainly - in making law in that way /time/ he was not without warrant either from "precedents" or "principles".