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6 Aug 1804
Procedure
''.6-5: Excesses in
profession
The practice of the exploded Court of Star Chamber had /was composed/ as will be seen of an aggregate many features, but the punishing /marching[?] conducting punishment/ in the [...?] /track/ chalked out by this discourse will be seen to be the only one that was /being/ at once /the same time/ of mischievous tendency, was at the same time regarded at that time as being peculiar to it, no waiting for known form the only legitimate species of law, statutory law: no waiting even for decisions on parallel /similar/ cases pronounced /stated as parallel/ in the way of jurisprudential law. A power of covering with acts of legislation the prodigious and as yet boundless field of penal law assumed: assumed with no other authority and at no other expence than that of these six words: words meaning every thing and thence nothing.
To observe in their genuine enormity the pretentions thus advanced by the spurious legislator compare them for a moment with the [...?] proceedings observed on the like ground by the genuine legislator on the like ground in English practice. On every the minutest extention of the groft[?] of the penal laws, what caution what investigation, what care taken to hear objections from all quarters - what niceties /scrupulousness/ in the choice of the words: what care to let in the necessary exceptions and modifications! In legislation as performed by the uncommissioned legislator - the Judge - on pretence of judicature - all these cautions are trodden on foot /broken through/: no exceptions, no limitations: no enquiries into facts - no regard to consequences - the unmeaning phrase, the form of words which furnishes the pretence is pronounced - and the business is done!
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Title: [29 July 1805 Evidence 2 [.]Description: 29 July 1805 Evidence 2 [...?] Statutes according to this division are either penal or remedial. Penal are to be construed strictly: meaning by strictly /as appears by the exemplification/, the taking advantage of some particular word or words of /in/ the statute to avoid giving effect in this or that instance to what appears to have been the will and intention of the legislator upon the whole: here then the mark set up by the legislator is fallen short of by the Judge. Remedial statutes are to construed liberally. Here the mark set up by the legislator is to be overshot by the Judge. In a certain view /With a view to a certain and according to the measure of his faculties, The legislator the legislator, has made a law to a certain extent. On occasion and pretence of this law, the Judge, with a view to the same or to a different end, takes upon him to make another law /on [...?]/ to a further or collateral extent. Under this nomenclature /this distinction/ and this division which they /made by them/ in large part after the [...?] statutes not to say the whole/ there is no saying which part of the mass of statutes is marked out from misconstruction. For the misconstruction put upon penal statutes, a regard for humanity [the [...?] of lawyers a /an English lawyers/ humanity,] is the pretence: [for, whatever be the [...?] particular rule /becomes of other rules/ upon the carpet, the rule of hypocrisy is never deviated from]. A pretence? yes: how should it be other than a pretence? 1. [In the first place] the distinction between penal and remedial is mere vapour. Unless in so far as it is remedial, what penal law of the final class any thing but /further than/ an act of tyranny? Till the system of legislation is perfect, in practice as well as theory, the mass of penal law in every nation will and must involve such acts of tyranny. That in an usurpation and temerity can any serviceable /useful/ remedy and /any/ advantageous substitute be found, for any such immemorial and [...? ...?] tyranny? But can the /any/ legal tyranny on the part of the supreme authority, find any advantageous corrective in the arbitrary power of that which should be its sub-ordinate. Note Unless in so far as affording a gratification to an inordinate vengeance, or even more causeless antipathy, (a case indeed but too frequently exemplified) is the /has been/ sole object of the law, what in any instance is punishment /good for or proposed to be [...?] for/ of any use, but in the character of a tyranny? And of /what sort of efficacy can be possessed by/ what effect were any arrangements of law, call it remedial or any thing else, unless it have punishment, /more or less as bound/ to back it?
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Title: [Evidence 6 June 1805 Introd]Description: Evidence 6 June 1805 Introd [...?] Ch. [...? ...?] Jurisprudential Law is that sort of imaginary law in which the supposed purport and effect is every where the tenor no where. By tenor, in the language in use with lawyers themselves mean a determinate assemblage of words; by the tenor of an agreement, the words of /to/ /by/ which agreement is composed that /the intuition of the parties have been [...?] /expressed/. No statute but what has in tenor; accordingly what it is that goes to make ones Statute or one Chapter Section or other division of Statute is never a matter of doubt. No portion of Jurisprudential Law that has a tenor; if the infinite mass of writing of /in/ which the materials /import/ for jurisprudential, is to be [...?] for, there exists not a book or page or a line or a portion of any one of either of which it can ever be said in these words that contained on[?] a jurisprudential law - or an article of jurisprudential law. Jurisprudential law being a sort of fictitious, spurious law, put off upon mankind for genuine, to convey a full and accurate conception of its nature, the only effective course that can be taken will be, after noting /are[?] by in[?] all characteristic/ its properties, to compare them with the correspondent properties of genuine law.
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Title: [25 Aug 1804 Procedure Circumstantial]Description: 25 Aug 1804 Procedure Circumstantial Ch.1. ยง.2. Practical use What has been said of the legislator - meaning the regular, acknowledged, official legislator - is applicable with no less propriety to his (subordinate and) customary though as will be seen deplorably inadequate substitute the Judge: I mean, in so far as by virtue of the rule stare decisis[?] it happens to him to be[?] the law to his colleagues and successors in office as well as to himself on all subsequent occasions: to set the law to them, in virtue of the obligation which he is understood to impose upon them - the obligation of framing out of the particular decision [...?] by him in the past individual case, a general rule, which as effectually and in the same manner as if it had been laid down by the official legislator, shall bind them to give the like decision in all such future individual cases as shall come to be looked upon as being comprehended in that rule. Elsewhere there will be occasion to show at large, how inadequate the work of this spurious[?] sort of legislator is in the character of a substitute to the work of the genuine legislator. And in the course of these sheets it will appear - that on the whole expanse of the field of evidence the genuine legislator has been more than ordinarily negligent and inactive, the spurious one more than ordinarily enterprising and active.
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