JB_092_413.xml

Title: [PRIVATE 3 March 1808 + A]

Description: PRIVATE

3 March 1808

+ A

On L d Eldons Bill 34

Letter V

§.4. Reasons

Precedents

Jurisprudence

Of the aggregate mass of the entire rule of action, or compleat body of the law, appearing part of it in the shape of statute law, the remainder in the shape of jurisprudential law, the articles which (in so far as existence can be predicated of this subject) exist in the shape of this imaginary sort of law, without any determinate set of words for the expression of them, are, in tenor[?] and [...?] an instance, provided with an accompaniment of reasons: of reasons, or at least assemblages of words on which, by curtesy[?], that denomination is bestowed. Jurisprudential law - i.e. whatsoever part of the rule of action happens to have made its appearance in this phantasmagoric shape, is a sort of law made or rather supposed to have been made by Judges, of a certain rank, on pretence of declaring it.

The conjuncture on which a fragment of the sort of which it is composed comes to be made is that of an individual decision pronounced in the course of a particular cause. Propositions of a general nature being delivered by some Judge at the time when this individual decision comes to be pronounced, to these propositions all or some of them, it happens now and then either in tenor or in purport, under a favourable concurrence of circumstances, to be made public: and these propositions, of which it is known or not known in what words delivered, by whom, in what place, at what time delivered, have the force of real law, for which they are regarded by lawyers as constituting a very advantageous substitute.

093-113.xml

Title: [15 Jan y 1806 Though the importance]

Description: 15 Jan y 1806

Though the importance of this uniformity is the same in every /both/ case the difficulty of attaining /securing/ it is widely different according as it is in the shape of statutory or in that of jurisprudential law that the rule of action on the subject in question presents itself.

(When it is in the shape of statutory law) Suppose the rule of action throughout in the shape of statutory law, the question of law would in every /each/ instance stand on no other ground than that of the sense proper to be put upon the article of /words of the/ law in question, compared with the words of the several /as many/ other articles in the /if any/ body of law, if any, that happened to bear reference to /in/ the same point. In this case the terms of the rule of action the words of it being given, open alike to all eyes, all eyes without any /with little/ other difference than that between the strength natural and acquired /by exercise by[?]/ of an understanding compared with that of another - how, if there were any difficulty, at any rate there would not be any legal difficulty. If, as here and there would be the case, there were any demand for science[?] - appropriate science, at any rate it would not be legal science.

093-101.xml

Title: [13 Jan y 1807 Appeal &c 3.]

Description: 13 Jan y 1807

Appeal &c

3. The danger of diversity has again respect[?] to the article of unskilfulness on the part of the Judge. Unskilfulness, not however on the part of this or that individual Judge, as compared with this or that other, but on the part of all human beings, and thence of all human Judges. Suppose every Judge all perfect, and on each given occasion (the occasion perfectly the same in all its circumstances) the decision pronounced by each Judge, would not, perhaps at least might not, vary a hair's breadth from that of any other. But all human Judges labouring under intellectual weaknesses, hence where Judge A decides so and so, Judge B. will decide in a manner /way/ more or less different.

But from individual decisions general rules are by those who have the opportunity of being acquainted with them, naturally and generally formed: and these rules in so far as statute law has been silent, supply the place of it, and, from per tanto the matter of jurisprudential or as men say in England Common Law.

Thus it is that, partly from intellectual infirmity on the part of the Judge, partly from the like imperfection of those whose occupation it is to watch his operations and his discourse[?] in the view of framing by the power of their own imagination a correspondent portion of the rule of action for their own use and that of such others as /to whom it may happen to/ come to them for advice, decisions and supposed /imaginary/ rules of law deduced from them are liable to become different, to vary from each other, even where the case is in all it circumstances the same: and this probability will increase with the relative difficulty of the case, that is with the relative unskilfulness of the several Judges.