25 Aug 1804

Procedure

Circumstantial

Ch.1.

§.2. Practical use

What has been said of the legislator - meaning the regular, acknowledged, official legislator - is applicable with no less propriety to his (subordinate and) customary though as will be seen deplorably inadequate substitute the Judge: I mean, in so far as by virtue of the rule stare decisis[?] it happens to him to be[?] the law to his colleagues and successors in office as well as to himself on all subsequent occasions: to set the law to them, in virtue of the obligation which he is understood to impose upon them - the obligation of framing out of the particular decision [...?] by him in the past individual case, a general rule, which as effectually and in the same manner as if it had been laid down by the official legislator, shall bind them to give the like decision in all such future individual cases as shall come to be looked upon as being comprehended in that rule.

Elsewhere there will be occasion to show at large, how inadequate the work of this spurious[?] sort of legislator is in the character of a substitute to the work of the genuine legislator. And in the course of these sheets it will appear - that on the whole expanse of the field of evidence the genuine legislator has been more than ordinarily negligent and inactive, the spurious one more than ordinarily enterprising and active.