Jan y 1808

Omissa

Opinions undivulged

Where the soil is rich, if no seed be sown, weeds grow /spring/ up in its place /and cover it/. Where no real law has been made, a sort of sham law grows up in its place. On judicature, every decision, judgment, rule order, is insulated and particular: if themselves millions of them could neither make /form/ a law, nor any thing capable of serving instead of one. But the Judge, when[?] no sinister interest creates /intervenes to make/ an exception, naturally goes about to do, as others have done before him: it saves him the trouble of thinking, save him from the imputation of particularity, and from the stance of not having thought /having acted without thought/, when he[?] incapable of it.

The object then is to find out a case to such a degree similar to the case in hand, that a general proposition may be framed, framed in such terms that both decisions, viz.: the decision already pronounced in the former case, and the decision proposed to be pronounced in the case in hand shall appear to be conformable to it. This done, the decision pronounced in the case in hand is exactly to the effect of the decision which ought to have been /would have been proposed to be/ pronounced, had an article of real law existed, the declared will of a legitimate legislator, conceived in the terms of the general proposition[?] thus framed. In this way a rule or an article of sham law is framed, standing in the place and possessing the [...?] form[?] and virtue as of one article of real law would have had, if [...?] to the same or an equivalent set of words. These general propositions are what in the language of English jurisprudence are called dicta, dicta of the Judges.