date

1822 Nov. 5 Tripoli. Securities against Misrule
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.
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  • Title: [1822 Nov. 5 Tripoli. Securities against Misrule]
    Description: 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.
  • Title: [1822 Nov. 9 Tripoli. Securities against Misrule]
    Description: 1822 Nov. 9 Tripoli. Securities against Misrule 3o Preliminary Explanations 2.

    Sanctionment

    Throughout the dominion of the Coran, four of these Commentaries have obtained

    the preeminence over all the others. Such is the degree of that preeminence as

    to have given rise as it were to two classes of Commentaries Commentaries of the

    first order and Commentaries of the second order - those of the second order

    being not exclusively at least Commentaries on the sacred text but Commentaries

    upon those of the first order: Commentaries on Commentaries. Commentators of the

    first order four, as above: Commentaries of the second order not so few as seven

    hundred.

    Though clear of confusion from that source of which indication has been given as

    above in the case of the European and especially the English Books of Reports

    and Treatises deduced from them, the Eastern system fails not however to labour

    under very obvious and such as can not but be very grievous inconveniences

    /imperfections/.

    In the first place, no one of them having in a direct way taken for its object

    of pursuit the greatest happiness of the greatest number none can unless by

    accident have made any clearly defined provision for it in the course[?] of such

    arrangements of detail as are to be found deducible from it.

    In the next place in opening out the thread of inferences they have all of them

    taken on various occasions courses more or less different

    From all these diversities to an extent more or less considerable two evil

    consequences can not but have existed /taken place/. So uncertain

    /indeterminate/ in this or that case is the bearing of some or all of these

    previous Commentaries upon that case, that the Judge be his probity ever so pure

    finds more or less difficulty in determining in what manner he shall make

    application of them to the case.
  • Title: [13 July 1804 Procedure & Evidence]
    Description: 13 July 1804

    Procedure & Evidence

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    '.1. Sources

    I The operations having respect to the question of law may be thus enumerated -

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    4. Where one or more articles of statutory law are considered as bearing upon the point, and these articles, one or more of them already given occasion to /been the subject of/ decisions grounded on them, in virtue of which decisions a correspondent portion of jurisprudential law is also considered as bearing upon the same point, hence comes a fourth sort of operation sort of composite operation /set of operation/ compounded of the first and third, or of the second and third of the those beforementioned operations.