date

11 May 1808 I. Reasons Ch.V
11 May 1808

I. Reasons

Ch.V. Advantages

§.2. Law from Fact

continued

10. Here then at any rate is no separation made of the law question, the question of fact and the question of law. Pronouncing concerning the matter of fact, the act which they say has been committed, they pronounce in the same breath and in and by the same words concerning the matter of law: they declare what in their opinion the law on which the plff. has demand is grounded on. viz. a rule of law, of which the fact in question is a violation.

12. Suppose the decision to be in favour of the defendant, as little as by the decision on this side is any such separation made, as by a decision on the other. In this case Not Guilty are the words of it. Here no such separation is made, for in this formulary two opinions are indistinguishably involved. The law is not such as has been supposed on the plaintiff's side: or the matter of fact has not been such as has been supposed on the plaintiff's side. Of these two so perfectly distinguishable propositions one or other or both are delivered: but from the import of the words it is never possible to say which: since they are every one of them equally sufficient to warrant the practical conclusion drawn from them.
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    13. In this case, in this not very frequently exemplified case, this separation is thus far and in this sense effected, viz. that after the decision of the unlearned Judge has been pronounced upon the question of fact and the question of law together, the question of law alone is decided by the learned Judge alone.

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    15. If the question be purely a question of statute law, without any reference made in argument to unwritten law, then indeed it is a question of law according to the description above given of it, a question of words - of determinate words, the words contained in this or that particular clause of a determinate statute: or what comes to the same thing in any number of clauses contained in the same statute or any number of different statutes.
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    2. Advantageous or not, it is a state of things that in proportion as the proposed conversion of the rule of action out of the form of unwritten into that of written law, would unavoidably take place.

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