date

3 August 1805 Evidence Introd
3 August 1805

Evidence

Introd Jurisprudential

Vices

'' 7 - Scantiness

' 7. Scantiness in point of extent of provision.

of This defect it /the seal[?]/ may be observed in not in this or that particular point of the jurisprudential system, but in that which together taken as a whole.

This defect it may /again/ be again observed

Another observation that may present itself /occur/ is that this defect defect being shared by statutory, ought not to be set down to the account of jurisprudential law.

In every body of statutory law say yet, most deficiencies might be observed /pointed out/ /discovered/ by an acute and observant eye: acts productive of real mischief, of a mass of mischief greater than any that would be produced by the penal and other coercive forms necessary to keep them in check - acts of this description left either altogether without adequate without prohibition, or what comes to the same thing, without punishment or burthening subjection to the profit of the efficient[?] circumstances opening respectively in point of reason and utility, in the character of causes of aggravation, justification, examination or extermination, not made to operate on these several ways by appointment of law: the different parts in which it is in the enumerance[?] of the different acts of delinquency respectively different individuals may be found to have appeared in the character of co-delinquents, not marked out in the list of them compleated upon any existent and comprehensive plan; in respect of the different stages in which in the case of each species /preservation[?] of each plan/ of delinquency respectively it is possible for the same individual to appear /act/ in the course of his culpable career - such as acts of proportion, attempts, acts of [...?], the same /like/ want of plan, and in consequence /accordingly/ the like deficiency.
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  • Title: [3 August 1805 Evidence Introd]
    Description: 3 August 1805

    Evidence

    Introd. Jurisprudent

    I. Vices

    '.7. Scantiness

    True it is that in this statement, as applied to statutory law, there will in the law of every country be found down to the present day but too much truth. But the difference in respect of scantiness [in the respect] between statutory law and jurisprudential law lies in this: whatever scantiness any where is observable in the system of statutory law, is the result of the deficiencies /incomprehency/ in respect of probity or intelligence in the part of individual legislation, and by the [...?] of more competent hands to the task[?] may be removed at any time: but the deficiencies /scantiness/ of jurisprudential law is a defect in its very nature nor from any union of virtue on the part of the conductors is it capable of receiving a cure. The Judge, as such can do nothing of himself: whatever may be the rules of law he takes upon him at any time to lay down, the initiative function /power/ render not in him but in some individual (though it must be confessed in any and every individual) in the character of plaintiff.

    Scantiness when thus explained turns out to be [it may again be replied) not a substantial /real/ defect, but only a nominal one: a defect in theory only not in practice. What matters is how defective it may be, in relation to cases that never occurred. Take what case you will, let it but occur there sets Jurisprudence an instant readiness[?] /no sooner does it occur, then jurisprudence is ready/ to provide for it.

    Provide for it? yes in some way or other, that it /she/ will always do, in some way or other; of that there is no doubt: avowedly or virtually be the case what it will, a decision one way or other he will give. A service of a certain description is [...?] of her: she will either render it, or [...?] to render it, a delay rendering it which for the time that the delay lacks in refusal to render it. Provide for it, in one or other of these ways she will not fail to do; but the question is whether the provision thus made will when made be a proper one.
  • Title: [5[?] August 1805 Evidence Ch]
    Description: 5[?] August 1805

    Evidence

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    ''. 6. Fixation in competency

    Ch. Vice 6th Incompetancy in respect of fixations of all sorts: liquidation of quantities, of number, weight, measure and degree: establishment of exceptions, conditions, limitations.

    In relation of this important function the compleat competancy of Statute law the helpless inaptitude of jurisprudential law will, at the very first mention, be with more or less distinctness perciptible /visible/ to every eye. Take them at the best, and though the supposition be repugnant to the very essence of jurisprudential law suppose the rules of it to be given in tenor as well as purport, still for want of fixation, they hang and float as it were in the air. On each revision a scale of indefinite length has extended under them: they hover over it, but never touch it for want of a definite point to fix upon. Be number of degrees in the scale ever so great, no one degree can ever be found, on which the rule can alight with propriety, to the exclusion of those that are above it and below it. What is the consequence? that, independently of /over and above/ all others, this one defect is enough to banish certainty, which is as much as to say to banish justice from the dispensations of jurisprudential law, from an indefinitely extensive portion of the field of law./judicature/
  • Title: [28 July 1805 Evidence Introd]
    Description: 28 July 1805

    Evidence

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    From all that has been seen, of [...?] of one proposition seems sufficiently /tolerably/ clear,: that uncertainty is of /essential/the very essence of jurisprudential law.

    That this uncertainty indeed admits of degrees, correspondent to the different classes of persons with relation to whom /in whose minds/ the uncertainty is considered as subsisting: viz: 1. non-lawyers: 2. attorneys, 3. advocates, in their character of opinionists, not to speak of Judges.

    That be the answer what it may, how certain and clear what soever the answer to it may appear to be in the eyes of the advocate /opinionist/, or even the attorney, this relative and [...?] /imperfect/ degree of certainty will not be sufficient to divest it of the character of uncertainty with relation to the individual whose conduct is expected in reality or in pretence to be governed by it, and whose fate is made at any rate to depend upon it.

    That the species or degree of uncertainty being of the essence of jurisprudential law, and not being of the essence of statutory law, constitutes a /the/ characteristic difference between the two species or forms of law.

    Not, that even statutory law is essentially altogether exempt from the imputation of uncertainty. Every discourse is liable to be mis-expressed: every discourse, well or ill-expressed, is liable to be misconceived: and statutory law is a discourse. But as in what concerns the mode of exposition in the case of statutory law the mishap /inconvenience/ is but accidental and comparatively rare /and as the powers /faculties/ of the human mind gain strength by exercise is in a way to be every day less and less rare:/ in the case of jurisprudential law it is constant /essential/ and incurable. If Since as hath so often been observed, it is of the essence of jurisprudential law to have no tenor at all, no form and no collection of words, in to which the quality certainty can adhere /inhere/.