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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.
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Title: [29 July 1805 Evidence Introd]Description: 29 July 1805 Evidence Introd Ch. II. Vices To apply to this head of uncertainty the parable of the two opposite fountains. Opposite to each of these two fountains of (misimportation) mis-construction, the fountain of restriction and the fountain of ampliation stands the fountain of reason and utility. Moreover under each judicial robe, in each judicial person, are contained two natures, the nature of the lawyers, and the nature of the man. Is it convenient or agreeable that the decision should be according to justice? It is drawn by the man from the fountain of reason and utility. Is it more convenient or agreeable that it should be contrary to justice? It is drawn by the lawyer from the fountain of restriction, or from the fountain of restriction as the nature of the case may require.
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Title: [31 July 1805 Evidence Introd]Description: 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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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.
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