date

15 March 1808 Note Jurisprudential
15 March 1808

Note

Jurisprudential

Ends of Justice

Homologation

From all mischief flowing from this source the Defendant's side is also exempt. When after demand made, i.e. a suit begun, that suit is afterwards desisted, vexation, correspondent in magnitude to the duration of the suit has indeed been experienced on the Defendant's side. But in this case it is by the demand that the vexation has been produced, and not by the desistment: by the commencement and continuance of the suit, not by the termination of it.

V. Non-Justiciability: on the part of the Plaintiff: he being the individual in this case as in the opposite.

Without definition any the least approach to certainty is impossible. In his own station, the Judge is unable [to] give any such thing as a definition: in the station of a legislator he will not. In the English Statute book a definition would be an innovation: reason sufficient with lawyers their accomplices and their dupes, for keeping out of the Statute book this as well as any thing else by which the ends of justice can be promoted.

a Under jurisprudential law Judges govern the people, as the people govern their dogs. On pretence of disobedience to a law never promulgated, nor so much as made, man or the dog is whipt or hanged, and what it is for, the man, like the dog, is left to find out as he can. Gentibus ut cunibus, pro verbis verbera pangant[?]. Of all offences that have been created into crimes theft is the most common: so much so, as to be more frequently exemplified than all the others put together. Of the thousands and myriads of thousands that, in England, have been hanged for theft, not a man was ever hanged to whom it had been possible to know by what differences in respect of punishment different species of theft had been created and distinguished: not a man, to whom by any thing that had been done by lawyers for his instruction, it was possible for him so much as to have learnt what theft was. From the best definition that ever was given by a lawyer to learn what theft is, it is no more possible to a man than to his dog.

Consciousness of want of title, the circumstance which unsophisticated common sense presents to men, and even to dogs, as the principal feature in the composition of this crime, has never been recognized in that character or any book of laws. Him[?] who understood so well what witchcraft was, knew not what theft was (so he was honest enough to confess) knew not how to give any such definition of it, as should render it possible for a man to distinguish what is not theft from what is: But this ignorance did not hinder him from hanging men for being thieves, any more than from hanging women for being witches. +3
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