049-043.xml

Title: [28 July 1805 Evidence Introd]

Description: 28 July 1805

Evidence

Introd. Jurisprud.

Ch. II Vices

In front of this talk of Estoppel is placed by a continuator and with evident /and with regard/ use and propriety, a modern dictum of a very instructive nature, by it the essence of uncertainty, as flowing from one of the two opposite fountains the fountain of truth and justice otherwise /statable/ called the fountain of reason and utility and reason, is exhibited in a concentrated state. Estoppels (for Lord Kenyon) Estoppels in general are not to be favoured, they are to extend only in by as far as the positive rules have gone because the tendency of them is to prevent the investigation of truth.

By this dictum his Lordship, treading in the steps of his ever illustrious predecessor, put in for the prize of liberality: by another mode of providing he might have learned the merit, encompassed professed objects, of /it/ that judicial virtue. On convenient occasions the road to the legislature is not altogether unknown to one ennobled part at least of the Judges. By a short act extinguishing the principle of Estoppels altogether all uncertainty /uncertainties/ from this source might have been, and might at any time be removed. By the dictum with its liberality, it /may/ was thickened. Of each secondary /successive/ occasion, each Judge, as inclination invites, draws his decision either from the principle /fountain of falsehood from/ of Estoppel, with its "positive rules", or from the fountain of truth and justice, from the principle of liberality, which leaves aside, and turns the decision aside, from the course marked out by those rules.

049-111.xml

Title: [30 July 1805 Evidence Note]

Description: 30 July 1805

Evidence

Note 2

Introd. Jurisprud.

ch. II. Vices

9. Incorrigibility

As in their adherence to preceeding decisions and dicta English lawyers /Judges/ have, from various causes, been more strict than the lawyers /Judges/ of perhaps any other nation, the /a necessary/ consequence is, that the vices /defects/ of English jurisprudence must have been so much more incorrigible. To this superior /more invincible/ incorrigibility may accordingly be ascribed /attributed/ in some degree. And as in English Law the defects of jurisprudential law are more invariable incorrigible than in any other nation so the [...?] bestowed on it in England so are proportionably outstrip by far whatever has been exemplified /bestowed on their/ own jurisprudence by the lawyers of any other nation upon earth.

Secure /When once secured/ against contradiction, panegyric spurns all bounds of truth and reason /common sense in the room of a vice be it ever so characteristic and [...?] it [...?] without/. The property /virtue/ opposite to this self-evident incorribility is among the endowments /the endowment selected by/ /points of excellence and superiority with/ which Lord Mansfield chose for [...?] /chose for demonstrating the superiority of jurisprudential as compared to statute law/. "A Statute (says he) can seldom take in all cases. Therefore the common law (jurisprudential law) that [...?] itself pure by rules drawn from the fountain of justice, is for this reason superior to act of parliament." "From the period of this great judgement to the present time (continues his Lordship's biographer) the law has gone on continually working itself pure (to use Lord Mansfield's expression) by rules drawn from the fountain of justice".

That common law is [...?] enough /has need enough of being worked pure/ may be admitted without much difficulty: but where are its means of working itself pure? When rules of an absurd and mischievous complexion are one /have once been/ established by the /a set/ [...?] of Judges, not to speak of disposition, what means have their successors of ridding the law of those rules? None but by departing from the fundamental principle of stare decisis, and thus assuming to themselves the authority of legislators.

Another mistake consists in the speaking of judicature as having but one formal aim to draw its rules and decisions from, a fountain decorated for the purpose with the title of fountain of justice. The fact is, that throughout the whole field of jurisprudential law (as we have seen) judicature has two fountains to draw its rules and decisions from, two opposite fountains, the fountain of reason and the fountain of precedent, from either of which, on each occasion of doubt, the Judge draws his decision, according as he happens to be in a mood. It is from the mixture of these different streams that it is continually working itself muddy: and if ever and any where it is destined to be worked pure, it must be by the river Alphius turned into the channel by the hand of the legislator in the character of Hercules.

JB_047_156.xml

Title: [Evidence 23 July 1805 Perversion]

Description: Evidence

23 July 1805

Perversion

Between the fabrication /sort of forgery/ attempted behind the custom, and the fabrication practiced upon the bench, there is again yet another difference. The source of profit is different in the two cases. In the case of the malefactor, recognised as such, the profit reaped by the secret, if any be reaped, is reaped from the individual false will in question, from the individual act by which that false will is /was/ /has been/ made. In the case of the Judge, and his practises in the iniquity, the source of profit is not confined to any one false will in particular, but the stream flows alike from all the suits in which with whatever success, at the instance of a false document, the making of any such false will is attempted to be procured.

Not that of itself /Of itself however/ this source of profit is not productive enough, to satiate /satisfy/ the rapacity of the man of law. In another place this has been shown to belong to the number of cases in which he has contrived to provide for himself two opposite fountains of decision, so circumstanced /situated/ that from which of them he will draw his decision, /on each given occasion/ his response of the suits will be drawn, shall, previously to litigation /[...?], that is to/ appear sufficiently and uncognisable. In the present case to fan the fountain of technical perversion as above delineated, he has contrived to keep up in a state fit for playing /of/ /constant readiness/, the fountain of real intention. To draw from the one or from the other source is equally open to the revered Juggler's choice. In addition to the profit (of which nothing is ever said, by any body,) praise, whichsoever of the two sources it shall please him to draw from, is equally secure. At the different fountains altered two different virtues, eager /in readiness/ to crown their receptive customers /votaries/: at the fountain of trial intention, Liberality: at the fountain of Technical Perversion, Constancy: Constancy whose motto is stare decisis: Constancy the [...?] handmaid of jurisprudential Science.