date

Procedure 17 Aug 1804 Non-homologation
Procedure

17 Aug 1804

Non-homologation

Bad from the first, or bad only by the lapse of time, it is that we have two masses of bad jurisprudential law, to which without introducing the mischief of disconformity, that is of general instability and uncertainty, it is not in the power of jurisprudential law, of the makers o jurisprudential law as such - the Judges /I mean the Judge/ - ever to apply a remedy, a remedy except one which is, and which is very generally understood to be - in almost all cases /in all ordinary cases/ worse than the disease.

/As it has been said to be of peat-moss, so it is at any rate the nature /It is the nature/ of jurisprudential law; to go on /it goes on/ growing without end. But as to that part which is bad in itself the longer it keeps on growing, the further /wider/ of course it diverges from that which is /whatever is/ good in itself - from the sound and useful branches /from the Courts o Utility, and [...?]. But all these ramifications good and bad together, are inexplicably and almost indistinguishably intermingled: insomuch that the whole /aggregate/ mass presents a body tainted with disease, covered with cankered spots, rotten in many places to the very core, and radically destitute of that intrinsic /salutary/ power, which, in the human body under the mysterious name of viz medicatrix nature, physicians are so found to celebrate /fond of [...?]/ are so happy to recognise.

In statutory law, antinomia produces no uncertainty: in jurisprudential law, antinomia produces uncertainty, and that incurable.
Similar Items
  • Title: [10 Aug 1804 Procedure Ch. non]
    Description: 10 Aug 1804

    Procedure

    Ch. non homologation

    ''. incorrigible

    decision has been fruitful in all the mischief it is in the nature of it /mischief such as it is qualified by its nature/ to produce. But what should lead to the correction of it? So long as the decision remains uncontradicted, it governs: it as much a part of jurisprudential law - of the waste from whence jurisprudential law is distilled, as any other; desperation /rashness desperation alone/ can drive a man to call upon the Judge to reverse a decision upon which the stamp of law is as conspicuous as upon /imprinted /impressed/ in characters no less conspicuous than/ any other.

    That a decision unappealed from or confirmed irreversible at the time may be contradicted by a subsequent decision given /pronounced/ in a different cause, is true enough: nor is the case by any means without example. But what is the consequence? a disease - a sore /an ulcer/ more spreading at any rate: if not more malignant than that to which it was the object of the counter-decision to apply a remedy. Between the bad original decision and the counter-decision which had it come first might have been a good one - productive of good without alloy - confidence is shaken, certainty is destroyed. In any subsequent cause or number of causes Judge A finds no difficulty in reverting to the original decision: Judge B finds as little in adhering to the counter-decision: each is a first[?] and it is his own fault if he does not feel himself to be - at perfect liberty [without regard to merits or public consequences], to give the views to his own personal interest or favour, or prejudice, or caprice. Who /Which of these/ is in the wrong? neither. Who in such a state of things can be in the wrong? nobody. The fault lies not in individuals, but in the system: - a system rotten at the core.
  • Title: [22 Aug 1804 Procedure Ch. Non]
    Description: 22 Aug 1804

    Procedure

    Ch. Non-homologation

    ''. Uncertainty

    Dorment Reports

    In the hope of learning whether it be advisable for him to institute or as the case may be to defend a suit, a man applies to a council through the medium of an Attorney. The Council, referring to such cases as are extinct in print, and in that respect accessible to him, sees no difficulty /forms his opinion/ in the case, and advises in the affirmative. The cause is come to a hearing, when lo! to the equal edification and surprise of every one, up starts /stands/ a counsel on the other side, and produces a manuscript and unpublished note of a case sufficiently in point in which the decision was given in favour of the other side counter to the only rule that could with propensity be deduced from such relevant matter as was in print, accessible to the profession at large - accessible to any but the possessor of the dormant note, and much of his pounds, if any, as happened to be acquainted with it, disappointment not altogether unmixed with shame, falls thus upon the man of law, disappointment and loss, perhaps ruin, upon his client.

     To Non-notoriety &c

    Amongst the consequences of this state of things is a sort of monopoly as already observed - a monopoly possessed by few men of long standing and exclusive connections among /in/ the professions, to the prejudice of a great body of the profession and equally to the prejudice more especially of the junior classes. It is easy but too evident how much the miserable disease of jurisprudential law, uncertainty, is increased and exasperated by that state of things. A man /ruler/ is not only not safe in trusting to his own conception or [...?] in a subject, but neither is there any safety for him in reposing his confidence in any body else.
  • Title: [Procedure 17 Aug 1804 Ch. Non]
    Description: Procedure

    17 Aug 1804

    Ch. Non-homologation

    From these /the above/ observations may be deduced, and not without practical advantage, the idea of those distinguishable sorts or qualities of jurisprudential law: 1. a sort of law good /purely good/ /doubly/ in itself, and at the same time good in /by/ respect of conformity - in respect of its conformity or ad [...?] to precedents: 2. a sort of law bad in itself, but good in respect of its conformity: 3. a sort of law doubly bad - bad in itself, and bad for disconformity (or say want of conformity) besides.

    Meantime, in the course of the many ages that have intervened since the formation of the first collection of the raw materials of jurisprudential law, the state of society has undergone prodigious change - civilization has taken ample strides. What is the consequence? - That among the decisions which when first pronounced were conformable to the dictates of original utility would not be so pronounced at present /in these our times/: that consequently the general rules deducible from these particular decisions are not conformable to the dictates of original and immediate utility as they stand at present. Thus it is that to the mass of jurisprudential law bad in itself from the first, and if good in any respect good only by conformity, we must add another mass of jurisprudential law which though originally good in itself is become bad by lapse of time.