037_067.xml

Title: [1821. May 5. First Lines Divisions]

Description: 1821. May 5.

First Lines

Divisions.

Of the manner in which this wretched substitute to real and genuine law is framed /formed/, take this description. In the course of a suit in which application is made of the rule of action thus composed, the judge, on each occasion, pretends to find ready made, and by competent authority en[...?] with the force of law, and at the same time universally known to be so in existence, and so in force, a proposition of a general aspect adapted to the purpose of affording sufficient authority and warrant for the particular decision or order which, on that individual occasion, he accordingly pronounces and delivers.

Partly from the consideration of the general propsitions fo framed, as above, by this or that judge or set of judges, partly from the consideration of the individual instruments or documents expressive of such individual decision or order as above, or framed in consequence of and in alledged conformity thereto, partly from the consideration of such arguments /discourses/ as have been, or are supposed to have been, suffered whether by the judge or by /the/ advocates on /one or/ both sides on that same occasion, a set /class/ of men /lawyers/ have, under the general names of general treatises or reports of particular cases, concurred in the composition of an immense and continually encreasing chaos - the whole of it written, and a vast portion of it printed and published, constituting an ever encreasing body of that which, having law for its subject, may, in so far with propriety be termed being not only written but printed be termed with propriety written though in actual usage it forms a part of the whole of the matter which passes under the denomination of unwritten law.

JB_106_103.xml

Title: [10 March 1807 Judicial Justice]

Description: 10 March 1807

Judicial Justice

Letter V

I. Shapes

1. Misdecision

Thus much as to misdecision pro tanto in respect of quantity.

By the inadequate simplicity of the original scheme Common Law, being alike debarred from recognizing the possibility of misdecision pro tanto in respect of conditionality, hence in any case where to render the decision commensurate to the ends of justice modification in respect of conditionality was requisite, and one amongst so many other proper grounds for the necessity of a recourse to the more unshackled authority of a Court of Equity, proceeding on the ground work of Roman Law.

When by a Court of Equity a decision is pronounced in favour of the Plaintiff, it may either accede to the demand either purely and simply, or annex to the service rendered to him any conditions that present themselves as suitable to the justice of the individual case.

When upon and after a definitive decision, pronounced by a Court of Equity, which decision is in that sort of Court called a Decree any change is made by a superordinate Court, whether it be in toto or pro tanto, and if pro tanto, whether in respect of quantity or conditionality, the instrument whereby the correction is administered is either termed, also a Decree, or else an Order: a decree, if administered by any other superordinate Court of Equity than the House of Lords: for example if administered by the Lord High Chancellor, in correction of a Decree framed by the Master of the Rolls: an Order, if administered by the House of Lords.

In both instances the application whereby such correctionary Decree or Order is prayed, is termed an Appeal.

In the same case likewise stands the practice of the other Courts of Rome-bred law - the Spiritual Courts, and the Admiralty Courts.

JB_082_263.xml

Title: [10 May 1808 I. Reasons Ch.II]

Description: 10 May 1808

I. Reasons

Ch.II. Laws & Pleading simul [...?]

§.2. Simul [...?] sub jure

10. The formularies of pleading are not the only materials of which the sort of law so improperly called unwritten is distilled. Many are the decisions, and vast the masses of unwritten law which have had no such substantive grounds. Decl n.[?] of Judges, general propositions laid down, or supposed to have been, by Judges in the course of those arguments (statements made of the case - the intended decision and the considerations on which under the name of reasons it is grounded) by which the individual decision about to be pronounced in the individual case is preceded and justified, from another class, not to mention any more.

But the formularies are, and are accordingly acknowledged to be, the best and surest. And why the surest? because they approach the nearest to the nature of statutory, called so improperly for the purpose of distinction, written law. In this case though the general rule has neither determinate words nor avowed author, yet the words after consideration of which the particular decision was framed, were many of them of a general cast: and these are a composition, of which not only the uncomissioned Author, but the commissioned and approving Receiver (I speak of the Judge by whom the instrument was deemed good in law) are frequently to be traced: and, on the inspection of any such formulary by laying out of consideration such of the words as are designative of the individualizing circumstances, a general rule may thus be deduced with much more facility and confidence, than from any supposed words of a supposed Judge, the authenticity, correctness and compleatness of which is assured by Judges, on evidence by much too weak to be regarded as admissible in any other case.

Other materials, it can not be denied, are received into the work: general rules, for example, deduced from the above, by the authors of abridgments, and institutional books. But the above are the original sources and the others in proportion as the reservoirs they are drawn from stand farther of and farther from these original sources, lose more and more of their weight.