15 May 1806

Evidence

Jurisprudential

Observe then, that though in the making of the decision each puisne Judge bears and equal part with the chief, yet except in here and there a rare case in which the judgement of the Court is delivered by a puisne judge what is said is said by the Chief: the others may all or any of them oppose /protest against/ it as they please: but any such protestation or precedent is scarcely to be found. Though the decision /what there is of judication/ must be acknowledged to be the act of the whole court, yet the acts of legislators passed upon the occasion of the judicature, are each of them the acts of a high Judge: most commonly of the Chief: but at any rate of one single Judge. The chief has in this way made a law: this law is not altogether to the mind of this or that one of the puisnes? It knows better than to make any formal proposition or protestation against it: no: he lets that law /to send the matter, if in his opinion the matter send [...?]/ pass, and he makes another such law of his own. Decisions, acts of judicature are put to the vote: dicta, that is to say laws, such as we have been seeing are never put to the vote. Trifles such as this, little less than a compleat code of criminal law composed in six words contrary to morality or sound policy are not put to the vote: de minimis lex non curat. What is the consequence? Is the dictum of the Chief the only one /dictum [...?]/? pure unbounded despotism: is it followed by other dictums from other parts of the same bench? Despotism with contradiction and uncertainty to sully it.

Let us confine ourselves /our view/ to the chief: in this sort of vice[?] his visit is unquestionably the most fruitful /[...?]/ /fruitful/. What under such law must a man do to be saved. He must know, know as /in relation/ to every part of his conduct, know in relation to every thing /end/ which he can propose to himself to do or not to do, know all his life being /throughout the whole course/ of his life, what the opinion is of a man who knows not what it has himself: he must confine himself to a will which it is not so much s permitted to him to act to know.