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1827. July 26. | <p>1827. July 26.</p> | ||
Constitutional Code. | <head>Constitutional Code.</head> | ||
Ch. XII. Judiciary Collectively | <p>Ch. XII. Judiciary Collectively.</p> | ||
S.22. Application to unwritten | <p>S.22. Application to unwritten<lb/> | ||
Law. | Law.</p> | ||
1. | <p>1.</p> | ||
In every country not | <p>In every country not <lb/> | ||
possessing an all-comprehensive | possessing an all-comprehensive<lb/> | ||
written | written<lb/> | ||
Code, there is a certain | Code, there is a certain<lb/> | ||
proportion of rule of | proportion of rule of<lb/> | ||
action not written. | action <hi rend="underline">not written</hi>.<lb/> | ||
not brought into existence, | not brought into existence,<lb/> | ||
but remaining | but remaining<lb/> | ||
i<hi rend="underline">n</hi> pa<hi rend="underline">ss</hi>e in the breasts<lb/> | |||
of future Judges, the | of future Judges, the<lb/> | ||
inactive authority | inactive authority<lb/> | ||
thus resting not in | thus resting not in<lb/> | ||
the legislature but, by | the legislature but, by<lb/> | ||
sufferance in the Judge | sufferance in the Judge<lb/> | ||
or Judges. | or Judges.</p> | ||
2. | <p>2.</p> | ||
In this state of things | <p>In this state of things<lb/> | ||
great is the disadvantage | great is the disadvantage<lb/> | ||
at which the functions | at which the functions<lb/> | ||
in question are | in question are<lb/> | ||
exercised. | exercised.</p> | ||
3. | <p>3.</p> | ||
Whatever in this way | <p>Whatever in this way<lb/> | ||
is done will be but | is done will be but<lb/> | ||
putting here and there | putting here and there<lb/> | ||
a patch of real or an | a patch of real or an<lb/> | ||
unbounded extent of | unbounded extent of<lb/> | ||
imaginary law. But, | imaginary law. But,<lb/> | ||
in so far as this is | in so far as this is<lb/> | ||
done, proportionate | done, proportionate<lb/> | ||
certainty is given, and | certainty is given, and<lb/> | ||
disappointment thereby | disappointment thereby<lb/> | ||
prevented. | prevented.</p> | ||
4. | <p>4.</p> | ||
The operation will | The operation will<lb/> | ||
refer - not only to all | refer - not only to all<lb/> | ||
future contingent | future contingent<lb/> | ||
suits, but to the individual | suits, but to the individual<lb/> | ||
suit by which | suit by which<lb/> | ||
the demand for the exercise | the demand for the exercise<lb/> | ||
of the functions | of the functions<lb/> | ||
was created. For | was created. For<lb/> | ||
<pb/> | <pb/> | ||
Ch. XII. Judiciary Collectively | <p>Ch. XII. Judiciary Collectively</p> | ||
S.22. Application to unwritten | <p>S.22. Application to unwritten<lb/> | ||
Law. | Law.</p> | ||
4 | <p>4 contin<hi rend="superscript">d</hi>.</p> | ||
For, knowing that | <p>For, knowing that<lb/> | ||
the exercise given by | the exercise given by<lb/> | ||
him to each of the | him to each of the<lb/> | ||
four functions, will | four functions, will<lb/> | ||
come under the eye | come under the eye<lb/> | ||
of the Legislature, | of the Legislature,<lb/> | ||
the Judge will be deterred | the Judge will be deterred<lb/> | ||
from any overstrained | from any overstrained<lb/> | ||
and arbitrary | and arbitrary<lb/> | ||
interpretation. | interpretation.</p> | ||
5. | <p>5.</p> | ||
Mode in which exercise | <p>Mode in which exercise<lb/> | ||
may be given to | may be given to<lb/> | ||
these functions. | these functions.</p> | ||
To an amendment | <p>To an amendment<lb/> | ||
referring to a determinate | referring to a determinate<lb/> | ||
portion of really | portion of really<lb/> | ||
existing Law, the Judge | existing Law, the Judge<lb/> | ||
will substitute a general | will substitute a general<lb/> | ||
rule, expressive | rule, expressive<lb/> | ||
of the supposed collective | of the supposed collective<lb/> | ||
views of the Judges, | views of the Judges,<lb/> | ||
present and past, on | present and past, on<lb/> | ||
the point in question | the point in question<lb/> | ||
of the field of Legislation. | of the field of Legislation.</p> | ||
6. | <p>6.</p> | ||
Placing in this strong | <p>Placing in this strong<lb/> | ||
light the difference between | light the difference between<lb/> | ||
really existing<lb/> | |||
and fictitious law, | and fictitious law,<lb/> | ||
proportionably unacceptable | proportionably unacceptable<lb/> | ||
will such an | will such an<lb/> | ||
arrangement naturally | arrangement naturally<lb/> | ||
be to the fraternity of | be to the fraternity of<lb/> | ||
lawyers.<pb/> | lawyers.</p><pb/> | ||
Ch. XII. Judiciary Collectively | <p>Ch. XII. Judiciary Collectively</p> | ||
S.22. Application to unwritten | <p>S.22. Application to unwritten<lb/> | ||
Law. | Law.</p> | ||
7. | <p>7.</p> | ||
Course to be pursued | <p>Course to be pursued<lb/> | ||
by Judge. | by Judge.</p> | ||
1. If he finds a portion | <p>1. If he finds a portion<lb/> | ||
of existing law to | of existing law to w<hi rend="superscript">h</hi>.<lb/> | ||
his proposed enactment | his proposed enactment<lb/> | ||
is more or less applicable, | is more or less applicable,<lb/> | ||
he will so apply | he will so apply<lb/> | ||
it accordingly. | it accordingly.</p> | ||
2 If none, he will give | <p>2. If none, he will give<lb/> | ||
his enactment an independent | his enactment an independent<lb/> | ||
substantive | substantive<lb/> | ||
form. | form.</p> | ||
8. | <p>8.</p> | ||
3. He will give indication | <p>3. He will give indication<lb/> | ||
of the portion of | of the portion of<lb/> | ||
Books of Reports, where | Books of Reports, where<lb/> | ||
decisions are to be found | decisions are to be found <lb/> | ||
relating to the subject | relating to the subject<lb/> | ||
matter of his proposed | matter of his proposed<lb/> | ||
Reports. | Reports.</p> | ||
4. So he will make declaration | <p>4. So he will make declaration<lb/> | ||
if no such | if no such<lb/> | ||
to be found. | to be found.</p> | ||
9. | <p>9.</p> | ||
How inadequate soever | <p>How inadequate soever<lb/> | ||
these patches of | these patches of<lb/> | ||
Statute Law, still it | Statute Law, still it<lb/> | ||
will be so much taken | will be so much taken<lb/> | ||
from the mass of | from the mass of<lb/> | ||
evil resulting from | evil resulting from<lb/> | ||
fictitious law.<pb/> | fictitious law.</p><pb/> | ||
<p>Ch. XII. Judiciary Collectively</p> | |||
<p>S.22. Application to unwritten<lb/> | |||
Law.</p> | |||
<note>{Unreadable pencil notes}</note><pb/> | |||
<!-- DO NOT EDIT BELOW THIS LINE --> | <!-- DO NOT EDIT BELOW THIS LINE --> | ||
{{Metadata:{{PAGENAME}}}}{{ | {{Metadata:{{PAGENAME}}}}{{Ready_For_Review}} | ||
1827. July 26.
Constitutional Code.
Ch. XII. Judiciary Collectively.
S.22. Application to unwritten
Law.
1.
In every country not
possessing an all-comprehensive
written
Code, there is a certain
proportion of rule of
action not written.
not brought into existence,
but remaining
in passe in the breasts
of future Judges, the
inactive authority
thus resting not in
the legislature but, by
sufferance in the Judge
or Judges.
2.
In this state of things
great is the disadvantage
at which the functions
in question are
exercised.
3.
Whatever in this way
is done will be but
putting here and there
a patch of real or an
unbounded extent of
imaginary law. But,
in so far as this is
done, proportionate
certainty is given, and
disappointment thereby
prevented.
4.
The operation will
refer - not only to all
future contingent
suits, but to the individual
suit by which
the demand for the exercise
of the functions
was created. For
---page break---
Ch. XII. Judiciary Collectively
S.22. Application to unwritten
Law.
4 contind.
For, knowing that
the exercise given by
him to each of the
four functions, will
come under the eye
of the Legislature,
the Judge will be deterred
from any overstrained
and arbitrary
interpretation.
5.
Mode in which exercise
may be given to
these functions.
To an amendment
referring to a determinate
portion of really
existing Law, the Judge
will substitute a general
rule, expressive
of the supposed collective
views of the Judges,
present and past, on
the point in question
of the field of Legislation.
6.
Placing in this strong
light the difference between
really existing
and fictitious law,
proportionably unacceptable
will such an
arrangement naturally
be to the fraternity of
lawyers.
---page break---
Ch. XII. Judiciary Collectively
S.22. Application to unwritten
Law.
7.
Course to be pursued
by Judge.
1. If he finds a portion
of existing law to wh.
his proposed enactment
is more or less applicable,
he will so apply
it accordingly.
2. If none, he will give
his enactment an independent
substantive
form.
8.
3. He will give indication
of the portion of
Books of Reports, where
decisions are to be found
relating to the subject
matter of his proposed
Reports.
4. So he will make declaration
if no such
to be found.
9.
How inadequate soever
these patches of
Statute Law, still it
will be so much taken
from the mass of
evil resulting from
fictitious law.
---page break---
Ch. XII. Judiciary Collectively
S.22. Application to unwritten
Law.
{Unreadable pencil notes}
---page break---
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