date

14 July 1805 Evidence Introd
14 July 1805

Evidence

Introd. Jurisprudent

Ch. II. Vices

The sort of security which is the great boast of Englishmen, the security derived /depending/ on the uncorruptness of the Judges, is in some respects well founded, but in others [while the standard /under the regency/ of /jurisprudence/ obedience remains in the state of jurisprudential law] is an illusion, and so long as the reign of jurisprudence lasts, so long, so it be for ever, must it continue. Bribes, it is true, are unknown to the hands of English Judges. Against corruption in this its most sordid and palpable form, every man is safe. True: but so long as that uncertainty which is of the essence of jurisprudence lasts, it is impossible, that against mischief from this quarter, misdecision from secret favour or antipathy, even from pecuniary interest in any /many/ of its indirect and refined shapes, any man should ever be safe. In the several causes of uncertainty as above brought to view, we see so many causes of arbitrariness: so many facilities, so many [...?], to the arbitrary exercise of a power and reality, though not in appearance arbitrary: so many [...?] causes of mis-decision /injustice/, which it depends altogether upon the /scent and/ inscrutable pleasure /will/ of the Judge, to convert into essential ones. When without the smallest possibility of detention, it is in the power of any one man to inflict on any other the extreme of injury, and this power is all factitious, and capable of being done away without the smallest inconvenience, can the existence of it be regarded in the light of an inconsiderable grievance.
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  • Title: [14 July 1805 Evidence Introd]
    Description: 14 July 1805

    Evidence

    Introd. Jurisprudent

    Ch. II. Vices

    But though the security from this quarter should be ever so much greater than upon an unprejudiced examination it would be found to be, it would be nothing /little/ to the purpose. For in regard to degrees of arbitrariness, the question is - not between English judicature and the judicature of other countries, the standard of obedience being in both instances in the state of jurisprudential, or in both in the state of statutory, law, but between English judicature under jurisprudential, and /the same/ English judicature under statutory law.
  • Title: [14 July 1805 Evidence Introd]
    Description: 14 July 1805

    Evidence

    Introd. Jurisprudent

    Ch. II. Vices

    That these fountains of uncertainty on which jurisprudential law is so abundant can not be drawn from /upon/ by arbitrary power on every occasion is indisputably [...?] and for every purpose. With all such helps those will be many things that can not be unjustly taken from any body /man/ by such means, many men from whom nothing can be by any such means unjustly taken, and so on without end.

    But for a man to find /see or fancy/ himself in danger of suffering from arbitrary and uncontrollable power, though it be but in one particular way, or on one particular occasion, so it be but /but appears a/ probable one, to arbitrary power operating on a field of such extent, a matter sufficient to embitter the whole current of a man's life.

    Unquestionably there is exists not at this moment among English Judges any such fashion as that of doing a voluntary /to any man a premeditated/ /wilful/ injury. But as it is the property of fashion /as to every thing that rests on fashion/ to be observed on most occasions, so is it to be departed from on any. Powerful while it exists, fashion is not the less liable to change. Powerful while it exists, fashion is not the less liable to change. Should it happen to me to be oppressed by Judge B what Consolation /advantage/ is it to see that he never oppressed one before, and that Judge A would not have done so in his place?

    In certain Russian families there exists a fashion of not raising the taxes upon any of their peasants. Peasants worth thousands of pounds are accordingly to be found in such Russian families. But will any peasant thus /for the moment/ happily situated for the moment neglect an opportunity of purchasing his emancipation? Not he indeed if he is wise. No: Be the probity of English or other Judges what it may, tenure at will never be equal to tenure for life.
  • Title: [29 June 1805 Evidence Introd]
    Description: 29 June 1805

    Evidence

    Introd.

    Ch. Jurisprudent

    ''. 3. Sources & decisions

     To be rewritten

    ''. 3. Sources of Jurisprudential Law.

    Jurisprudential law being a non-entity, jurisprudence considered as an art, the art of drawing conjectures, the next thing /objects of inquiry/ to be done is to obscure the sources or materials of conjecture /what there is of reality in the business consists of the sources or materials of conjecture/: the sources from whence the conjectures are to be drawn: the masses of materials out of which the factitious and fictitous laws are to be deduced contracted & deduced.

    These sources may be thus enumerated.

    1. Judicial decisions: decisions pronounced, opinions given, orders issued by Judges on the occasion of particular suits or causes.

    2. Judicial dicta: rules laid down by Judges on the occasion of the decisions pronounced in particular causes.

    3. Formularies or memorandums of the practice or procedure of Judges, or carried on under the eyes of Judges, in particular cause, in relation to points contested or uncontested.

    4. Articles or passages in Law Treatises, in the form of maxims or otherwise.

    5. Opinions extrajudicial of men of law.

    6. Supposed dictates of original utility of all these in their order.

    Judges putting sources[?] of their own upon the words property and possession in solemn trusting.