059-155.xml

Title: [8 July 1804 Procedure and Evidence]

Description: 8 July 1804

Procedure and Evidence

Evil causes 4th order

5. Anti-merits substantive law

There is no end to the sorts of things, which for one reason or other, though ----- but too stealable, were not, or even are not to this hour larcenable. Sometimes, if an animal it is the wildness of the animal: as if wildness supposing it to have any thing to do with the business /be any thing to the purpose/, were a quality /thing/ to be measured: and as if there existed a species of animal (man not excluded) that was not wild. Sometimes the supposed worthlessness: as if a man could run the risk of stealing what was not worth having.

Proposed law for removing out of the infinite list of non-larcenable this or that article have sometimes been passed /are sometimes passed/ and sometimes thrown out.

By such jurisprudence, amended by such legislation, the single title of larceny might be swelled to such a bulk, that a number of volumes /mass of learning/ equal to the volumes Buffon's System of Nature should consolidate but a part of it.

As often as an amending law of this complexion is brought upon the carpet, humanity or cunning, men of true humanity /some man or other, more abounding/ or perhaps in cunning, perhaps than in wisdom, stands up and laments the ever-increasing multitude of penal laws: as if the effect of laws depended not upon their extent but upon their multitude: as if the severest of legislators was not he who had but one penal law for everything. Whoever does any thing forbidden shall be hanged.

059-153.xml

Title: [8 July 1804 Procedure and Evidence]

Description: 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.

059-154.xml

Title: [8 July 1804 Procedure and Evidence]

Description: 8 July 1804

Procedure and Evidence

Evil causes 4th order

5. Anti-merits substantive law

A piece of land - i.e. a pyramid of which the basis is the part in question of the earth's surface, and the apex a point coinciding with the earth's centre, can not (physically speaking) be carried off, nor therefore stolen. But what is predicted of/ true concerning/ a whole(?), may be predicted of each and every of its parts: therefore neither can any part of such estate be stolen: no stone, marble, ore of iron, lead, silver or gold that lies on it: no vegetable, no timber tree that grows in it as well as upon it: for all these things savour of the reality. But that which it is impossible for man to do, man ought not to be punished for: therefore for carrying off any thing that savours of the reality, a man ought not to be punished as for theft.

But no sooner when the attraction of cohesion, by which one part of the contents of the castle is bound to those contiguous to it, is departed, the savour of the reality is gone off from it. Therefore (the lawyers by whom this reason was invented know of no such words as cohesion and attraction - but this is what they meant) in this case /cases of this sort/ a man may steal, and a man may be punished for it.

The same reasoning has been applied to houses and their materials: - the same reasoning, accompanied by the same law. Ahab built a house with ivory: Nero covered a house with gold. Habitable or not, this ivory, this gold, would not have been larcenable.

A piece of parchment, since the atoms that composed it left the form of grass to become parcel of the ship's body, never has been parcel of any reality. But if it did - a form of conveyance bearing relation to a house or a piece of land has been written upon it, it contracts so strong a savour of the reality that it is as impossible to steal it, at least to commit larceny on it, as if it were so much growing grass.