10 May 1808

I. Reasons

Ch.II. Laws & Pleading simul [...?]

§.2. Simul [...?] sub jure

10. The formularies of pleading are not the only materials of which the sort of law so improperly called unwritten is distilled. Many are the decisions, and vast the masses of unwritten law which have had no such substantive grounds. Decl n.[?] of Judges, general propositions laid down, or supposed to have been, by Judges in the course of those arguments (statements made of the case - the intended decision and the considerations on which under the name of reasons it is grounded) by which the individual decision about to be pronounced in the individual case is preceded and justified, from another class, not to mention any more.

But the formularies are, and are accordingly acknowledged to be, the best and surest. And why the surest? because they approach the nearest to the nature of statutory, called so improperly for the purpose of distinction, written law. In this case though the general rule has neither determinate words nor avowed author, yet the words after consideration of which the particular decision was framed, were many of them of a general cast: and these are a composition, of which not only the uncomissioned Author, but the commissioned and approving Receiver (I speak of the Judge by whom the instrument was deemed good in law) are frequently to be traced: and, on the inspection of any such formulary by laying out of consideration such of the words as are designative of the individualizing circumstances, a general rule may thus be deduced with much more facility and confidence, than from any supposed words of a supposed Judge, the authenticity, correctness and compleatness of which is assured by Judges, on evidence by much too weak to be regarded as admissible in any other case.

Other materials, it can not be denied, are received into the work: general rules, for example, deduced from the above, by the authors of abridgments, and institutional books. But the above are the original sources and the others in proportion as the reservoirs they are drawn from stand farther of and farther from these original sources, lose more and more of their weight.