date

20 August 1804 Procedure Introd
20 August 1804

Procedure

Introd. Jurisprudential

Ch. 2. Sources

''. 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.
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  • 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.
  • Title: [10 May 1808 I. Reasons Ch.II]
    Description: 10 May 1808

    I. Reasons

    Ch.II. Laws & Pleading simul [...?]

    §.2. Simul [...?] sub jure

    10. The formularies of pleading are not the only materials of which the sort of law so improperly called unwritten is distilled. Many are the decisions, and vast the masses of unwritten law which have had no such substantive grounds. Decl n.[?] of Judges, general propositions laid down, or supposed to have been, by Judges in the course of those arguments (statements made of the case - the intended decision and the considerations on which under the name of reasons it is grounded) by which the individual decision about to be pronounced in the individual case is preceded and justified, from another class, not to mention any more.

    But the formularies are, and are accordingly acknowledged to be, the best and surest. And why the surest? because they approach the nearest to the nature of statutory, called so improperly for the purpose of distinction, written law. In this case though the general rule has neither determinate words nor avowed author, yet the words after consideration of which the particular decision was framed, were many of them of a general cast: and these are a composition, of which not only the uncomissioned Author, but the commissioned and approving Receiver (I speak of the Judge by whom the instrument was deemed good in law) are frequently to be traced: and, on the inspection of any such formulary by laying out of consideration such of the words as are designative of the individualizing circumstances, a general rule may thus be deduced with much more facility and confidence, than from any supposed words of a supposed Judge, the authenticity, correctness and compleatness of which is assured by Judges, on evidence by much too weak to be regarded as admissible in any other case.

    Other materials, it can not be denied, are received into the work: general rules, for example, deduced from the above, by the authors of abridgments, and institutional books. But the above are the original sources and the others in proportion as the reservoirs they are drawn from stand farther of and farther from these original sources, lose more and more of their weight.
  • Title: [3 March 1808 40 Letter V]
    Description: 3 March 1808

    40

    Letter V

    §.4. Reasons

    2. As little can I take upon me to recommend the practice or a precedent of the course proper to be taken in the collection and preparation of the facts or other considerations brought to view in the character of reasons.

    In the case of a mass of statute law, ere yet the proposed law has been ventured to be introduced into either House, each House has frequently its Committee occupied for weeks or months in the collection of facts which when brought together and generalized, are to furnish, in debate at least, the matter of reasons.

    The declarers of Jurisprudential law, exercising those attributes of omniscience and infallibility with which the curtesy of lay-gents[?] has invested them, turn aside with generous disdain all such tedious courses, such superfluous and frivolous inquiries. On the question about the slave trade, years not weeks were employed, a library not a volume was collected, by unlearned legislators: a dictum out of Littleton or L d Coke, distilled or presumed to have been distilled from some assignable or unassignable decision or decisions, would have sufficed for giving a decision on this as on any other subject to the King's Bench or Common Pleas.