date

31 July 1805 Evidence Introd
31 July 1805

Evidence

Introd. Jurisprudent

Ch. II. Vices

''.9. Incorrigibility

In this natural and incurable incorrigibility may be found one of the causes of that /this/ extravagant strain of eloquence[?] of which jurisprudential law is the subject, and in which lawyers in general but more especially English lawyers are so fond of indulging themselves. Being so palpably incapable /manifestly unsusceptible/ of corruption, to prove it from the misfortune of being estimated at its true value, it is the more necessary that men should be impregnated /possessed/ with the notion of its being so /too/ superexcellent that it needs /to need any/ more[?]. But of this in another place.
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    While in the shape of jurisprudential law, the single case of libels is sufficient to keep in a state of real insecurity one of the dearest rights, or rather imagined rights of Englishman, and to keep every man who thinks and wishes as he thinks, in the state of the Orator, who appeared with a halter about his neck.
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    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.
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    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.