date

1822 Nov. 5 Tripoli. Securities against Misrule
1822 Nov. 5 Tripoli. Securities against Misrule. 3o Preliminary Explanations

?. Remedy Publicity 2. Operations 1. Ordinances 2. Sanctionment

Thus far, /now as to Enactment/ Ordinances, such as the nature of the case

requires /appropriate and adequate to the exigency/ - have been supposed to be

already in existence. If so it be well. But suppose the state of things to be in

the contrary case? what is then to be done

Case 1. In relation to the matter in question no Ordinance of the above

description in existence. But on the occasion of judicial decisions, the

standard of reference composed of anterior decisions, or inferences deduced from

them.

In the European Governments, with the exception of the few instances if any in

which /small extent to which in general/ Codification has had place such is the

state of the rule of action, under the dominion /where the rule of action is in

the state/ of what is called Common Law or Unwritten law. On most parts of the

field of law a quantity of matter has been written - written by men not invested

nor so much as pretending to be invested with the power of legislation

/legislative authority/: and out of this huge and shapeless mass of writing the

Judge on each occasion makes choice of such portion /portions/ as appear to him

best adapted to his purpose: to the purpose which is most agreable to him,

whatever it may happen to be. In this state of things Singularly unfortunate, if

not unskilful must that Judge be who out of so rich a [...?], fails on any

occasion to find that which is most agreable to his wishes whatsoever they may

happen to be: to his wishes, guided as they can not but be by what at the moment

he looks upon as being his interest.
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  • Title: [1822 Nov. 3 Tripoli - Securities against]
    Description: 1822 Nov. 3 Tripoli - Securities against Misrule 3o Preliminary Explanations ?

    Remedy - Publicity Subjects

    Publicity its extent is as the number whose cognizance the matter has [...?].

    1. Subjects of or for notification and thence publicity and thence for

    notification 1. Ordinances - 2. Transgressions or say violations of those same

    ordinances: 3. /3. Suffrages/ Opinions formed by the several Members of the

    Public Opinion Tribunal, in relation /on the subject of/ those same

    transgressions as compared with those same ordinances Transgression supposes

    something transgressed; in the instance here in question that something is

    something having or designed to have the authority of law 1. In the first place

    come the several ordinances, of which misrule, in each of the several shapes

    against which a security is by this system endeavoured to be provided will have

    been a transgression: Ordinances: or supposed rules having the effect of

    ordinances ordinances inhibitive of vexation and oppression in all its several

    shapes. If at the time of giving binding form to these several securities

    /establishment to security in these several shapes/, ordinances adapted to the

    purpose are already in existence, it is well: if not, fresh ordinances for the

    purpose must on this occasion be provided. 2. In the next place come whatsoever

    instances of transgression happen to have /take/ place. If none, so much the

    better the ordinances have in the compleatest manner possible fulfilled their

    purpose. If within the time in question any transgressions have had place, the

    number of them being given, the nearer the number by which notification and

    publicity have been received to the total of the number that have had place, the

    better.

    Go next to number of members to whose cognizance be [...?].
  • Title: [1822 Nov. 6 Tripoli. Securities against Misrule]
    Description: 1822 Nov. 6 Tripoli. Securities against Misrule 3o Preliminary Explanations ?.

    Remedy-Publicity I. Ordinances 1. Scription 2. Sanctionment 3. Registration

    Necessary to the existence of an Ordinance in a binding state are three

    distinguishable operations: namely scription, sanctionment and registration

    1. Scription. by this understand the act of composing and committing to writing

    the matter in question 2. Sanctionment. By this understand the investing it with

    binding force, by some person or persons generally recognized as being possessed

    of the correspondent power. 3. Registration or say recordation. By this

    Understand the depositing and keeping in some appropriate receptacle, the

    individual instrument to which the act of sanctionment has been applied. But for

    this, the correctness and even genuineness of all copies written or printed

    might stand exposed to doubt and dispute.

    Minute and useless will the distinctions thus brought to view be apt at first

    sight to appear Upon a second view nothing it will be seen can be farther from

    being so. Scarcely /No where/ will that country be seen, in which throughout a

    vast and indeterminate portion of the field of action and legislation an

    operation so essential as sanctionment will not be seen wanting to that matter

    to which notwithstanding is given nevertheless the name and binding force of

    law.
  • Title: [1822 Nov. 5 Tripoli. Securities against Misrule]
    Description: 1822 Nov. 5 Tripoli. Securities against Misrule 3o Preliminary Explanations 2.

    Sanctionment

    In the countries in question if I understand the matter right, none of these

    memorials have been collected, which in England over so large a portion of the

    field of thought and action occupy /stand/ the place of law. I mean that sort of

    matter which consists /is composed/ of statements of cases by which judicial

    decision has been called for - the particular decision pronounced in each case,

    and the general positions which have been brought forward by the Judge in

    support and justification of his particular decision, such general positions

    which /as/ in the way of inference have been deduced from it by writers /mere

    volunteer dissertators/ not invested with any such authority as that of a Judge.

    Case 2. The standard of reference referred to in Judicial decisions, composed -

    not of inferences /drawn not/ from former decisions, but from an original

    standard, composed in a time of remote antiquity /of antient date/.

    In the country in question not of any such matter the standard of reference is

    it seems of this second sort composed: not of any such matter but of the

    following. There stands the Coran, the work of Mahomet the universally

    acknowledged standard of opinion and practice in all matters of religion as well

    as law. But for a great portion of those particular cases which the occurrences

    of life are continually giving birth in this book the matter being for the most

    part of a nature extremely general is not susceptible of an application

    particular enough to serve as an adequately determinate guide. Influenced by

    this observation, different persons without concert with each other have at

    various times set themselves to work to fill up the vacuities, all of them

    agreing in the homage paid to the general positions discoverable in the sacred

    text, but differing from one another in no inconsiderable degree in respect of

    the inferences drawn from them - the particular practice of which as being

    contained under them /included within them/ application has been made. With

    reference to the sacred text, these works of inferior authority stand in the

    relation of Commentaries.