date

Jan y 1808 Omissa Opinions
Jan y 1808

Omissa

Opinions undivulged

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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  • 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.
  • Title: [7 Jan y 1806 Omissa Opinions]
    Description: 7 Jan y 1806

    Omissa

    Opinions undivulged

    Of the collection these dicta that part of the chaos which is in the form of Common Law that is if[?] what in one of the 5 or 6 senses in which /given to/ the [...?] Common Law, is employed, is composed /whatever in a word is not in the form of Statute Law/: at least these are the best surest and most trustworthy of the materials of which it can be composed: such as come nearest to the nature of the materials of real law: the very words of the legislator, authenticated by his signature, or by the publiclly applied touch of his sceptre.

    Blackstone may prate and dream or make as if he dreamt about Dainlague and West-Saxon-lague, and other lagues: he may tell us, as he has told us /continues/ with uncontradicted effrontery he continues to tell us that the Common Law thus framed is the work of the people. But the customary impression[?] put aside, the plain fact, standing before /stampt[?] in the retina of/ every eye that is not cloud[?] against it is that the Common Law - every article of it that can either serve a Judge for framing his will, or - I will not say a suitor who had better not guess but his lawyer for guessing at it is the work of the Judges, and of no one else. law made on each occasion by the Judges /Judge/, on it made according to pattern indeed, if rightly made, but at any rate made, in posture[?] of declaring it.
  • Title: [7 Jan y 1807[?] Omissa Opinions]
    Description: 7 Jan y 1807[?]

    Omissa

    Opinions undivulged

    On this occasion /In this place/ give me leave to mention another reason, my Lord, for breaking down this prodigious /unwieldy/ mass of their whole Lordships, into integral parts small which so big as they are integrant, no one of their Lordships being less than a whole /Your Lordship not [...?] //applying// on this occasion the judgment of Soloman/, can not be too small. Dicta of 15 Judges? what better than a Debit[?] can the compound be expected to make.

    Compare the dicta of their 15 [...?], with the dicta of the one L d Harwicke,

    Even in the King's Bench where the one is multiplied[?] by no more than four, when L d Mansfield's argument has been read, would not the[?] I am of the same opinion, be in general a very advantageous substitute for all the others /the more[?] [...?] /[...?]/ ones/?

    Both bring for the [...?], Lord A. grounds his suffrage on one reason, Judge B. on another: which is it that makes the law?

    Under the circumstances, bends[?] over and respectability[?], and thence probability of intelligence as well as probity, if more instruction /instructiveness/ were considered, and the capacity of suffrages for giving certainty to the law which it remains for suitors through their lawyers to extract from them, is not the value inversely as /shall in the inverse value/ the member?