date

8 July 1804 Procedure and Evidence
8 July 1804

Procedure and Evidence

Evil causes 4th order

5. Anti-merits substantive law

 This not in evidence ----- within procedure

In popular language /in common speech/ grounds of decision foreign to the merits are characterized by the words quirk and quibble.

Technical - a word of Grecian origin, is exactly synonymous to artificial. In the present instance this epithet is applied with disputable propriety. A technical reason is a sort of an argument which would not have presented itself in the character of a reason to any eye but that of a professional lawyer. An argument /a -----/ the use /origin/ of which in that character is exclusively to be looked for in the prejudices and sinister interests and artifices of the profession.

Accordingly in the whole list of fictitious /technical/ reasons or modes of ----- to which this ------ is capable of being affixed not a single article will ever be found that will not, when compared to the standard of utility be found absurd and mischievous: absurd /absurd currently/ in its notion, mischievous /mischievous , finally/ in its consequences.

In the adjective branch, the nature of these grounds is considerably different from what it is in the substantive.

In the substantive branch it consists throughout in giving to/affixing to /fixing upon/ some word or phrase in common use a sense /some signification/ or other which at the time in question had never been given to it by any man who was not a lawyer: or in annexing to some rule founded on obvious utility, an exception that not being grounded on utility would never have occurred /been presented/ to any human mind by considerations originating in that source.

Take for example /take an example/. By a general rule of law (jurisprudencial law) --- such as in common acceptance are understood to be composed(?) under the name of theft, are understood to have been made the subject of a prohibition (a virtual prohibition) and that prohibition backed by a certain mode or modes of punishment.

When another man would say theft, a lawyer says larceny; and in virtue of an exception grounded on a phantasm of the imagination expressed by some such words as these with whatever savours of reality, theft, when committed on any one of a great variety of things placed in the circumstances alluded to by those words, is understood not to be larceny nor therefore punishable as such.
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  • Title: [9 May 1808 I. Reasons Ch.II]
    Description: 9 May 1808

    I. Reasons

    Ch.II

    §.2.

    6. An instrument of demand, a declaration has been presented, demanding money of the defendant a carrier, a satisfaction for damage supposed to have been produced by negligence in relation to certain goods committed in certain circumstances to his care. No law could be shewn - no determinate assemblage of words, of which it could be said that they were the words of the legislator, or perhaps of any other determinate person, commanding a carrier to pay any such money under any such circumstances, or authorizing any Judge to compel him so to do. But by the Judge in the consideration of this or that decision which, having happened to come to his knowledge, has appeared to him sufficiently analogous, has thought fit that in circumstances of the description given in the declaration, an individual engaged in that occupation shall be made responsible as above, and a Jury having by their verdict declared their opinion that the circumstances as designated by the terms of general import contained in the declaration were, on the individual occasion in question realized, in this way out of the individual written instrument, a correspondent portion of substantive law was distilled, always in the gazeous and never sufficiently [...?] and condensable state, of unwritten law.

    7. So in criminals, in the case of larceny, otherwise without being explained, interpreted, felonious taking: in common language theft or stealing. The deduction applied as above to the case of damages demanded of a carrier on the score of negligence might be repeated mutatis mutandis, to the case of punishment demanded at the charge of a supposed thief on the score of larceny. By no legis - English legislature, any more than by any Roman legislator, has any significant definition ever been given of the offences of theft: by no legislator, Judge, or by no institutionalizing lawyer has any attempt been made to bring together all the circumstances the union of which is necessary to constitute the offence so denominated. Hale after hanging men for hundreds as for larceny, that others might learn to abstain from it, confessed, such was his candour, his inability to perform the task.
  • Title: [8 July 1804 Procedure and Evidence]
    Description: 8 July 1804

    Procedure and Evidence

    Evil causes 4th order

    Anti-merits substantive law

    If wit, according to the expression given of it /acceptation of it embraced/ by Locke and other grave writers be considered as the produce of a faculty opposed /opposite/ to judgment - having its growth in the imagination, and consisting of allusions - (a species of manufacture in /an article to which the/ /in the nature of// power of pleasing in any way or degree whatsoever is not understood to be -----) reasons of this complection may be considered as ------ /belonging/ a particular species of wit which may be called /------ by the name of/ lawyers' wit: in French de l'esprit a la jurisconsulte.

    If on each occasion, wit of this stamp /complexion/ were capable of being turned to the individual motives /causes/ that gave birth to it, abundance of ----- history, still more instructive than that of ----, might be brought to light. In the case of larceny for example, on this or that occasion, this or that judge was desirous, for /from /this or that reason/ motive/, to save this or that criminal from the punishment due to his crime. When power exists /abounds/ pretence can never be wanting, and there is no form of words that will not serve for it /does not ---- not be made to serve for it.
  • Title: [6 July 1804 Procedure and Evidence]
    Description: 6 July 1804

    Procedure and Evidence

    1. wrongful decision against self

    a As often as a point in question, foreign to the merits, is started and argued upon , the decision on that point, on which ever side it turns /to which ever side favourable/is adverse to some at least of the ends of justice/procedure/. If adverse to the plaintiff, the consequence is, according to the nature of the cause, non-application of punishment where due or non-collation (?) of rights where due or non-rendition of satisfaction where due: and to these ultimate evils respectively are added the incidental evils of vexation expense and delay - all non-natural, factitious, and unnecessary. If in favour of the plaintiff's side, the above mentioned ultimate evils do not indeed take place /are indeed avoided/ but the incidental evils take place exactly as in the other case.

    For ----- sake, grounds of decision foreign to the merits may be styled in one word technical. In English jurisprudence, technical is accordingly the word employed /affected(?)/ on occasions of the sort in question, and is found confirmed sometimes in the word grounds, in the phrasing technical grounds and technical reasons, sometimes as well to the word reasons.

    Technical grounds of decision are observable some in the substantive branch of the law, some in the adjective. Those alone which belong which belong to the adjective branch belong to the design of the present work: but the one can not be completely comprehended /understood/ without being confronted with the other.

    In neither instance /case/ will they be found in any instance to be the work /production/ of the legitimate legislator, acting as such: in every instance they will be found to be the fruit of the brain of the professional lawyer, acting in the station of a judge, and through /thru/ necessity, or by wanton usurpation, acting in an indirect way in the character of a legislator, in the track of jurisprudential law.