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1821. May 5th.
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Divisions
Of the whole body of the law or rule of action capable of having force in any country, one preeminently remarkable division, derived from a correspondently remarkable source and pervading the whole mass, still remains. It is that by which it is distinguished into two branches - the arrangements of one of which are arrangements that have really been made - made by the hands universally acknowledged as duly authorized and competent to the making of such arrangements, viz. the hands of the Legislator General or set of Legislators General, or their respective subordinates. This branch of law may be /stand/ distinguished from that which is correspondent and opposite to it by the name of real law, really-existing law, legislator-made law: it stands in English under the English government it stands already distinguished by the name of statute law, as also by the unchacteristic undiscriminate and in so far improper appellation of written law: the arrangements supposed to be made by the other of them, being in so far as they are arrangements of a general nature applying not only to individuals assignable but to the community at lareg, or to individuals not individually assignable, being /may be /stand// distinguished by the appelations of unreal, not really-existing, imaginary, fictitious, spurious, judge-made law, in /In/ English under the English government it stands already /actually/ distinguished by the unexpressive uncharacteristic and unappropriate names of common law and unwritten law.
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Title: [24 March 1808 Letter V Ends]Description: 24 March 1808 Letter V Ends of Justice - a non-utility, which notwithstanding such its character, or rather in virtue of such its character, is a /vice/ compound of vices, of vices beyond /such/ any which it would be in the power of any really existing object, how vitious /depraved/ soever be [...?] /[...?]//[...?]/. 1. Uncertainty, its primary and effectual attribute, expressed within the [...?] result of all[?] form[?] 2. Spuriousness, it being the wish of the Judge disowning[?] his own work at the very time his hands are /employed/ seen to be employed in making it. 3. Imposture: produced in it as upon the people, and the Legislator himself, as the work of a legislator, never assigned, because never assignable. 4. Inexpediency, the necessary result of its spuriousness: the hands by which it is forged not being provided with the stock of information necessary to the making of good laws, nor any means of getting it. inexpediency, including an all-pervading repugnancy to natural justice. 5. Scantiness: the progress /space/ thus capable of being made /covered/ in the field of law being in respect of direction and velocity determined and limited by the calls made by individuals in the character of plaintiffs. 6. Incorrigibility, viz. at any rate by its own hands: for since no new speci of expediency can ever be infused /poured//drain[?]/ into it but by force of a greater mischief in the shape of uncertainty 7. Barbarity /8 Inhumanity:/ com,posed s it is of a string of spurious laws none /no one/ of which can ever be established without bringing with it that injustice which when /if ever/ inflicted by the legislator forms the disgrace of /a black spot on/ the statute book, under the name of an ex post facto law: instead of a word a blow Take a man, as you would a dog, and give him a blow: coupled with the occasion on which it was given, this blow recollected by him to whim it was given, and observed by others (men or dogs) becomes a law, constitutes an article of jurisprudential law. The offence undefined, though by proper authority it might so easily be defined, the law against theft a crime more frequently exemplified than all others put together stands to no[?] [...?] upon no clearer grounds.
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Title: [082-062] 11 March 1808 Letter]Description: 082-062] 11 March 1808 Letter V §.6. Reasons Ends of Justice After these explanations, the conduct of the legislator being all along understood to be the object of reference, the causes of injustice may, at whatsoever degree of nearness or remoteness they may be found to stand with relation to that injustice which in their common and ultimate effect, be distinguished in a practical point of view, and is conceived with great practical advantage, into natural and factitious: factitious, considered as made by, that is, in being the work of, the result of the line of conduct pursued by, the legislator: natural, all causes of injustice, which to the purpose in question as having their root in any other grounds: in misconduct on the part of the Judge in misconduct on the part of individuals, in the character of litigants or any other taken without distinction, or as being purely the work of the uncontroulable powers of nature. Again, in regard to such causes as are considered as factitious, another distinction which, so far as it can be clearly traced out; will be seen to be highly useful in a practical point of view, is that which stands expressed by the adjuncts positive and negative: positive, when an assignable article or rule of law established whether by the proper hands of the legislator in the way of statute law; or under his eye by the Judge in the way of jurisprudential law, may be fixed upon as the cause of the injustice: negative, where it is only to the want of some article of law not as yet established, but of which it is conceived that it might, and without preponderant inconvenience, be established by the legislator, established, that the habit or course supposed to exist in the shape in question may, it is supposed, be traced. + Go on with the case in which the distinction is not perceptible.
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Title: [16 July 1804 Procedure & Evidence]Description: 16 July 1804 Procedure & Evidence Evils causes ch 5th Order ' 1. Intricacy II and III. Factitious causes, negative and positive I. Causes productive of complication properly so called /---- taken/. 1. Arrangements /Act/ requiring steps and operations (including the exhibition of written instruments) naturally useless: especially if /when/, as --- --- commencing the case the obligation of employing /taking/ these has been sanctioned by /had for its sanction the/ pain of nullity. See above 2. Arrangements operating as factitious causes of delay in so far as delay is become naturally or factitiously a source of fresh incidents, producing a demand natural or factitious for fresh operations. See the next table - delay. II. Causes productive of intricacy, without any necessary or adequate proportionable addition to complication. 1. Language unintelligible ambiguous or obscure. 2. Language distorted: - composed of distorted phrases - phrases of distorted import. (a) + 3. Language fictitious: language rendered unintelligible, ambiguous, obscure, or even delusive and fallacious, by being polluted with mendacity, flowing from authority, and thence employed by lawyers of all classes and all ranks with indifference, or rather with complacency, under the name of fiction. || 4. Language obsolete: and thence unintelligible, ambiguous obscure or even fallacious. Ex gr. old mode of /note/ computing days by saints days. # 5. Language uncharacteristic and unexpressive. {} Subpoena for a summons to a witness. Distorted language presents and false conception: uncharacteristic, as to the point in question, none at all. + See Table (a) note (a) and note (b) || See Table [] Note Uttering as true a supposed fact which is known by the utterer not to be true. # See Table {} See Table
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