date

PRIVATE 3 March 1808 + A
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.
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    Letter V

    §.4 Reasons

    In one of the two assemblies of which the legislative body is composed - in the House of Lords, when on the comparatively minute scale of an individual question arising out of an individual suit, concerning the property of some individual object such as a piece of land, a decision comes to be pronounced, here at any rate reasons, and under the very name of reasons, and those rendered by the operations of the press to a certain degree public, are not grudged.

    If these reasons were so many reasons framed and delivered by the Judges of which that highest of all judicatories is composed, they would by the degree of publicity given to them, the practice of thus delivering them, might in a certain degree be productive of the advantages abovementioned as resulting from the practice of annexing reasons to the text of a law such as explanation, controul, and so forth, and of the corresponding portions of jurisprudential law - viz. the general propositions capable of being distilled out of the respective decisions were imaginary, the words of them being left to be chosen by each reader of the reasons for himself - the reasons at any rate, being expressed by so many determinate assemblages of words, would make but some thing real, a sort of tangible and comprehensible mass from which the volatile and incoercible vapour would be to be distilled.
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    Description: 15 Jan y 1807

    Very different is the case, where the rule of action has no other shape or substance than that of the imaginary shape and or phantasmagoric substance /shape and substance/ sort of ││ which gives it the appellation /brings it under the notion/ /appellation/ of jurisprudential law.
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    Scotch Reform Lett. V.

    1 Ch.5. Scotch Appeals Excess

    §. 1. Causes

    Ch.5. Excess of Scotch Appeals - its Causes and Remedies

    §.1. Causes of the Excess.

    Reference being, whether expressly or no, unavoidably made to the proportion furnished respectively by the English and Irish judicatories, respectively more especially by the English, the following present themselves as the principal causes by which the multitude of the Appeals presented from the supreme Scottish judicatory is produced -

    Cause 1.

    1. Uncertainty viz. still uncertainty of the rule of action.

    In all three kingdoms, the rule of action is as to the greater part of its extent, the rule of action remains to this day in the barbarian shape of what is commonly called common or unwritten law - law made, in so far as a body of law that has no determinate set of words for the expression of it can be made, made by Judges under the pretence of declaring it. But in England there exist, and in no small quantity a stock of materials, adapted so far as any materials can be adapted, to the peculiar nature of this species of manufacture: viz. on the part of the Judges by whom the respective decisions are pronounced dicta portions of discourse, in the form of general propositions, among which are to be found some which, if any real law had been made on the subject by competent authority, might have constituted the words of such real law, propositions expressive of so many rules or portions of law, accompanied commonly with other portions of discourse serving as grounds or reasons, reasons indicative of the propriety of such rules.