9 May 1808

I. Reasons

Ch.II

§.2.

6. An instrument of demand, a declaration has been presented, demanding money of the defendant a carrier, a satisfaction for damage supposed to have been produced by negligence in relation to certain goods committed in certain circumstances to his care. No law could be shewn - no determinate assemblage of words, of which it could be said that they were the words of the legislator, or perhaps of any other determinate person, commanding a carrier to pay any such money under any such circumstances, or authorizing any Judge to compel him so to do. But by the Judge in the consideration of this or that decision which, having happened to come to his knowledge, has appeared to him sufficiently analogous, has thought fit that in circumstances of the description given in the declaration, an individual engaged in that occupation shall be made responsible as above, and a Jury having by their verdict declared their opinion that the circumstances as designated by the terms of general import contained in the declaration were, on the individual occasion in question realized, in this way out of the individual written instrument, a correspondent portion of substantive law was distilled, always in the gazeous and never sufficiently [...?] and condensable state, of unwritten law.

7. So in criminals, in the case of larceny, otherwise without being explained, interpreted, felonious taking: in common language theft or stealing. The deduction applied as above to the case of damages demanded of a carrier on the score of negligence might be repeated mutatis mutandis, to the case of punishment demanded at the charge of a supposed thief on the score of larceny. By no legis - English legislature, any more than by any Roman legislator, has any significant definition ever been given of the offences of theft: by no legislator, Judge, or by no institutionalizing lawyer has any attempt been made to bring together all the circumstances the union of which is necessary to constitute the offence so denominated. Hale after hanging men for hundreds as for larceny, that others might learn to abstain from it, confessed, such was his candour, his inability to perform the task.