29 April 1808

§.10.

I. Reasons for the Work

§.10. Law & fact distinguished

5. Under jurisprudential law no such clear and distinct line of separation between the question of law and the question of fact can be drawn.

5. Under the dominion of statutory law, the question of law, {it may be seen (│ │ art │ │} is confined in all cases to a question of words: to a question concerning the import of a certain word or assemblage of words: and those words in every instance pre-appointed by the legislator, in themselves determinate, and consigned to and comprized within a determinate mass of printed paper.

Under the dominion of jurisprudential law, the question of law is indeed still a question of words: a question resolvable into a question concerning the import of a certain word or assemblage of words: but those words have not been predetermined by the legislator, have not been predetermined at all by any person: they are on each occasion left to be chosen by the Judge, and in the determination of them his choice has no other limits, than those of the language: of the language of the people: including to this purpose such fragments of other languages as have been stuck upon it here and there by the hands of the man of law.

In this way there is no word so common, so continually in use in any matter without exception, but what may be and continually is taken up, and with the mark of the lawyer stampt upon it, raised into a law term, parcel of the learned language, and as such too sacred to receive its interpretation from the hands of the unlearned even though acting in the character of Judges.

+  Exemplify cutting[?]