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COMPOSIT. Comm. Law. Object. ag. Digesting. answer'd.
This remarkable consideration, that is [the common
Law] exists not in any certain form of words
may serve to cure calm the apprehensions of those
who, justly attached to it's substance, would
hazard behold with reluctance any change in this object
of their affection
They ought at least to postpone their disapprobation
till they see it substantially changed
in some of those points ++ for no one I suppose is so extravagant as to imagine it perfect in all. in which according
to their Ideas it's excellence consists: for if
what is professed in view is, to establish a certain System
of words in which, hating inconsistencies, its
contents shall be fixed collected & preserved
what is given for that purpose, such a System, will b has at least
announced as such by the supreme authority will may have
as good a title to be thought so, as any other.
For what is there in it that is The object of their affection? Is it cannot be the words?
for they the words are no where: [& the substance remains
the same.] It is Is it the substance; & that the substance
is remains untouched.
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Whatever reason can be assigned for the
repeal of the Statutes that are superseded
the same may be alledged in behalf of
the crying down the cases that are superseded
It may very well be called Unwritten
Law — it is not only unwritten, but
unformed [unframed]
---page break---
Law, viz. Good Law when spoken of a point of the Common Law, can
have but one of these two significations: either
1st That rule applicable to the case in
hand [obviously] arising from that practise a judicial [+][+] decision, are those decisions which when they are become numerous require the name of the practise (viz. the judicial practice) of the Court or
of the Courts in that behalf case or those
cases which come nearest to it, when
that decision or those decisions are meant
to be submitted to,[#] [#] as the ground from whence the rule sought for shall be drawn supposing them given, passed
& the only question is whether they were
passed in the manner alledged or no: or else
2ly when of those decisions a disapprobation is
expressed, the nearest|-[+] |-[+] in point of time or analogy similitude to the case in hand
of those remoter decisions the propriety of which [±] [±] it is supposed that nobody will dispute. nobody
disputes.
I establish this second [latter] signification
for the sake of those who speak of
Law, as contradistinct from & opposed to the
practise of the Courts, upon those occasions
where the existence of that practise &
of the opposition of the rules deducible from
it to the point they labour to establish being
too manifest to be denied, they betake themselves
---page break---
to the contesting of the propriety of it. This
if they would do, by attacking it's expediency
they would bring the question to a clear
& discernible issue, and save a world of
trouble. But this it is never worth their
while to lay the main stress of their
upon this, so long as they can attach it, with
any tolerable chance of success, on the side
of Law Justice. + + for reasons exhibited in Mo Mises 4to p. 54. They accordingly have recourse
to the denying such practise to
Law, which denial of it be [understood
to be] applied to the nearest practise, or
to any length in the chain of practise,
short of the whole of it, may, in virtue
of the distinction which I have been establishing
be allowd to have, whether it have truth
or no of it's side, to have I say, however
this be, a meaning; but which if applied
to the whole together [+], [+] as those who use it do not always take sufficient care to guard against it's being understood to do, is utter nonsense. way is, to deny on.
LAW Common [ ][ ][ ]
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law common |
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composit. comm. law object. ag. digesting answered |
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jeremy bentham |
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