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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 passee 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
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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
realy existing
and fictitious law,
proportionably unacceptable
will such an
arrangement naturally
be to the fraternity of
lawyers.
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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.
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Ch. XII. Judiciary Collectively S.22. Application to unwritten Law.
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