date

7 June 1805 Evidence Introd
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.
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  • Title: [3 July 1805 Evidence Introd]
    Description: 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.
  • Title: [3 July 1805 Evidence Introd]
    Description: 3 July 1805

    Evidence

    Introd. Jurisprudential

    Ch. 3. Sources

    ''. 2. Dicta

    The institution of a licencer royal by whom fact or veto[?] thus important preliminary might be ascertained, would for the severity of matters be a highly durable amendment to Statute the plan of which is amply supplied by the above pair of dicta. By such an institution indeed the power of the Court of the King's Bench on matters of libel would suffer no small domination. But as virtue in that honourable court is the inseperable confusion of power, the domination would no doubt be submitted with becoming mysticism should it be [?] [?] by the wisdom of Orleanus[?].

    4. "The law of nations in its full virtue is part of the law of England" "Lord Torbut Lord [?] declared this as a clear opinion." A noble field for jurisprudential power, cloathed[?] in jurisprudential service. A lawyer glides over it upon the ways of the word, laying down the law as he goes, which they Lords and Commons are jolting and thwarting one another all the time, are crawling to and fro upon the ground some times forwards sometimes backwards always at a snails pace.

    5. Christianity is the law of the land. Under favour of these [...?], an Orthodox chief patron (and how is it possible /is it in the power/ in chief patron to observe this orthodox?) confutes infidelity confutes heresy, proving whatsoever is not to be proved by reasoning by the logic of imprisonment and force.
  • Title: [4 July 1805 Introd. Jurisprudential]
    Description: 4 July 1805

    Introd. Jurisprudential

    Ch. II. Sources

    ''. 3. Reports

    Printed memorials, called Reports: containing accounts of Judicial Decisions together with the Judicial Dicta to which they gave rise.

    Hitherto, decisions and dicta have been considered only in the abstract: it remains to speak of the physical bodies the printed books, in which the written signs of these discourses are exhibited in a material and concrete form.

    A lawyer who happens to be present in court while the arguments on behalf of the parties for and against the decision called for by the plaintiff's demand, and the arguments of the Judge or Judges in support of the decision they are about to pronounce are delivering taken what is called for his notes of the case: that is sets down certain words as containing the tenor or at least the /at any rate/ purport of the whole or a part of which on the occasion in question is /was/ said by such or such a Judge, more particularly, of several Judges by the presiding Judge: with or without the arguments of the Advocates as he thinks fit! This note, when printed and published is called a Report: and a book containing a collection of such notes a Book of Reports.

    In any such Report will of course be contained an account more or less explicit /clear/ and copious of the particular decision, and of the general dicta, direct and collateral, decisive and argumentative, on which it was grounded.