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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.
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Title: [20 August 1804 Procedure Introd]Description: 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: [20 Aug 1804 Procedure Introd]Description: 20 Aug 1804 Procedure Introd. Jurisprudents B [...?] Ch. 2.5. Arts Utility The dictates of utility immediate and approximate utility - can never be excluded altogether. At first the principle of utility, well or ill applied or at any rate some caprice /if the imagination, or some sport of passion/ that presented itself under the garb of utility, must have been the only guide. Decisions must have been pronounced /pronounced in considerable abundance -/ and not only pronounced but committed to writing and preserved before the rule stare decisis could have so much as had matter to operate upon: consequently long before it could have been generally recognized and acted upon - framed and acted upon as a rule. But at not time, let the rule stare decisis have fixed itself upon ever so firm a footing, can the influence of the principle of utility be /have been/ superseded altogether. It will be referred to /appealed to/ in two cases. 1. Where prior decision, with or without the dicta, direct or collateral, of Judges are regarded as altogether wanting: 2. where the authority of decisions, including or not including that of dicta, is looked upon as equally distributed on both sides. In both these cases, the alleged dictates of utility - the consequences /influence/ of the proposed decision with regard to human happiness will naturally be endeavoured to be called in /thrown into the scale/, were it only in the character of a make-weight.
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Title: [3 July 1805 Evidence Introd]Description: 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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