093-048.xml

Title: [13 Feb y 1807 Inserendum[?]?]

Description: 13 Feb y 1807

Inserendum[?]?

To III Facienda

Letter IV

Montesquieu

My Lord finding myself engaged /led on by degrees/ to grapple with the technical system /I find myself [...?] as Counsel for the Natural system/, body for body, (and though as it were in a parenthesis.) Having already had occasion to glance at the defendants strong hold, Montesquieu's shallow and dishonest [...?] and seeing it to continue, wretched /flimsy/ as it is all that ever has been and, or / and or ever/ can be said on behalf of that portion of the mass of injustice to which it was designed to give protection, I know not how, painful /unpleasant/ as the object is to me, to pass it by untouched. I take it up the rather in hopes that Mr Hutchinson and his Right Honourable collaborator, seeing it for once at least in its true light, and being thoroughly /heartily/ ashamed of it, may abandon it as untenable, and in their next edition expunge it, from a work, in every other respect /point of view/ so truly /highly/ valuable.

"Vexation, expense, delay dangers[?] even of justice" (danger of misdecision) "the price each citizen pays /gives/ for his liberty: and this, for the declared purpose of satisfying us that so far from being too much of it, there is often /oftentimes/ not enough!" "formalities do to Justice - vary in [...?] sourent[?] trop peu[?]." (Liberty; the commodity, vexation and so forth the price; the more vexation, the more or the better liberty. If this be good as applied to justice , try it upon bread. The more you give for a thing "The value of a thing , is just as much as it will bring" Good in irony; but in sober sadness! Good in [...?]: but in a book of law, a Guide to legislators! Good when /if it be/ applied to justice, try it upon bread. Here is a loaf for you, hot out of the oven, the price of it is a penny: come a month hence for it, and pay me 2 d for it, you will find it then worth 2 d.

What [...?] would dare talk as? but what is there that a lawyer is ashamed to write. Suppose a [...?] to talk and deal thus would any man alone[?] ever[?] go to his shop, that could get bread any where else? The supposition is almost too silly to be endurred, even for the moment, and in the way of argument.

Esp. des Lois Liv. VI Ch.2. Vol 2. p. 120.

View the thing in point of view there is too much of it: view it in another point of view, there is not enough of it: and so there is too much of it, not enough or exactly the proper quantity just as you please.

This is Montesquieu all over. Food for debate: tries[?] at some make a figure with: something - thing for every body: support for every thing. This is what recommends Montesquieu. This is what in France is looked for by every body, and by lawyers every where. Truth supported by Reason binds a man in chains, and is a bugbear every where. But, to return to Montesquieu.

093-049.xml

Title: [13 Feb y 1807 Inserendum[?]?]

Description: 13 Feb y 1807

Inserendum[?]?

Letter IV

Montesquieu

This /[...?]/ is the price put upon justice, therefore it is the proper price: Such is the argument: - corollary therefore there neither is nor can be any such thing in extortion in the world.

In the way of direct assertion, there are many things that even a lawyer will not be ashamed to say: for instance in the way of insinuation there is nothing /what is there that/ he will not say? ││ I am sorry to add - or almost any man, who has a point to maintain, and feels himself hard pressed.

In the shape of delay vexation and expense, (open the door to insinuation) there is no mass of injustice so enormous, that may not in that [...?] meet with its defence /find a good defence/. ││ Accordingly it has been borrowed by Blackstone for the defence of English injustice: borrowed up by the Lord President of the Scotch College of justice for the defence of Scotch injustice in the same way it may be handed from branch to branch, and be[?] never the worse for wear, after defending go round the world, defend injustice every where.

In Turkey, causes decided and no delay manufactured: proof sufficient to Montesquieu and his pupils, that in Turkey neither property nor reputation nor life experience any regard. Little enough, but too probably: - But would they experience any more if long vacations were introduced there instead of /take place there of/ long [...?] sittings di dia in diem[?], would they experience any more? But suppose that in Turkey sittings di dia diem[?], were to open, and let in long vacations? would this mend the matter? To Christians, to Jews, to Turks themselves, would property and so forth be the more secure?

The Bastion[?] where he has heard the parties, trials them "with a bastinado": - Perhaps he does: and could not he[?] /then could not he/ although he never heard it /them/? if /could not he/ like learned Lords and gentlemen on both sides of the Tweed he decided the cause, without hearing from either party a single syllable?

In Turkey, suitors /though/ in a civil suit, are made to feel the cudgel: Perhaps so; and what then? My Lord President! Speak my good Lord! Is Scotland Turkey? In Scotland, the noble men and gentlemen [...?...?] in the Commission of the Peace, are they Bastions[?]? The Small Debt Courts, which are so good for ,5, so bad for ,5,1: these courts of unpolluted justice, are they so many cudgelling irons?

091-294.xml

Title: [4 Jan y 1808 Jury trial codification]

Description: 4 Jan y 1808

Jury trial codification

case[?], but in any part of that lamented portion of the language which in so many determinate passages or groups of words is employed in the body of real law, but without any hesitation, in the whole body of the language.

It is only by words, and those determinate words that for the general and [...?] use of a community, will [...?] be expressed, meaning be conveyed, arbitrary will excluded, [...?] avoided. But of every Judge as of every man, it is the natural wish to be an arbitrary, that is to be as free to have /preserve/ as much liberty, to possess as much power, as possible: if every lawyer whose prosperity depends upon the uncertainty of the law, that is of every fee-fed lawyer, it is as certainty the wish to see the law as uncertain as possible. Consequently /BY necessary consequence/ to every fee-fed lawyer and to every Judge, fee-fed or not fee-fed whatsoever portion of the rule of action is in thye shape /[...?]/ of real law, as such an object of aversion /abhorrence/: whatsoever portion remains in the form of sham law is as such an object of attachment, and a subject of praise.

But sorry as Judge /the man of law/ would be to see the whole field of law /legislation/ [...?] in every part with[?] a covering of real law, he can not /it is impossible for him to/ speak of the rule of action in any part without supposing such covering to exist. What he knows is that to the part in question the will of the only legitimate author of the law has never supplied itself: what is as constantly expressed or by assumption asserted, is that he has: that his will has been framed[?] has been notified, and that such and such are the words by which it has been and is notified.