9 Aug 1804

Procedure

Non-homologation

eulogized by Lawyers

Oh but says Blackstone judicial decisions are not the sources of the customs it is not by them that the customs have been established - all that they do are to evidence it when made /after it has been established./ Thus says Blackstone what says Truth? Of all the rules that can be found not twenty nor the pages are to be found /now acknowledged for law/ that are not to be traced to this or that assignable decision as their source. Of all the jurisprudential law of which we know the origin, judicial decisions are the manifest source: seeing this for what lawyer is there that can avoid seeing it, he calls upon us to take for granted that every rule for which we do not see the source, had its source in some thing else.

If the matter of "Common Law" "properly so called" which he speaks of in the same line as having General Custom for its synonym /being the same thing with "General customs"/ he gives a number of samples. The fourth (I pass over the first three only because they would require more words) consists of "the rules of expounding wills, deeds, and acts of Parliament." But of all these rules is there a single one that is not seen to have its source either in some decision, or in some dictum as the phrase is delivered on the occasion of some cause by some person known to be a Judge?

NOTE: a I. 69. "These judicial decisions are the principal and most authoritative that can be given, of the existence of such a custom as shall form part of the Common Law."