JB/028/143/004

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20)

Common Law. Judicial Decisions.

happen that the judge may mistake the Law. That he
should mistake his own opinion, for his own will, is not
in short that he should not know his own mind, [is what] we
may without any great at stretch of charity,] will not
often happen – But here we must change the meaning
of the word Law. Law now here means not what are is law
now in the case in question; but what has been Law
before in cases supposed to be similar to it. This
indeed is what the Law Judge may easily enough
mistake. He may be mistaken mistake what have been the
preceding determinations⊞; nothing is easier; when so little, or rather
no care at all is taken to let him know them.⊞⊞ This is in good measure a matter of fact
Or knowing all such he may mistake in the application he makes
of them to the case in hand: this is a matter of
judgment. In either of these cases he may be said
in one sense to mistake the law.

"Upon the whole however", concludes our Author, still
in the mind of reducing judicial decisions which are something
into nothing, and of [making a something out of nothing]
turning a nothing into something, "upon the whole however",
concludes he, we may take it as a general rule,
"that the decisions of Courts of Justice are the evidence
"of what is common Law": in the same manner as
"in the Civil Law, what the Emperor had once determined was
"to serve as a guide for the future.

☞ Here insert Inserenda p.3. No 3.

Identifier: | JB/028/143/004 "JB/" can not be assigned to a declared number type with value 28.
Date_1		Marginal Summary Numbering
Box	028	Main Headings	comment on the commentaries
Folio number	143	Info in main headings field	common law judicial decisions
Image	004	Titles
Category	text sheet	Number of Pages	4
Recto/Verso	recto	Page Numbering	b17 / e18 / b19 / e20
Penner	jeremy bentham	Watermarks	[[watermarks::[monogram] [britannia emblem]]]
Marginals		Paper Producer
Corrections		Paper Produced in Year
Notes public		ID Number	9408
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