date

9 May 1808 I. Reasons Ch.II
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.
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    Description: 082-262]

    9 May 1808

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    §.2.

    8. Out of the indictments and decisions together, such of them as chance, the substitute for legislative wisdom and probity has preserved, has been distilled in the state in which lawyers see it and repented thieves feel it, all the law there is, except in this or that particular case, against theft: every body ready to hang men for theft in any number: nobody either knowing or caring what theft is, or thinking it worth his while to obtain any such knowledge.

    9. And so in regard to murder - and so many other offences for which men are every day put to death, by a Judge to whom the possibility or impossibility of their knowing in time what it is they are destined to be put to death for is matter of such invariable and imperturbable indifference.
  • Title: [6 Aug 1804 Procedure Ch. non]
    Description: 6 Aug 1804

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    Thus when the law (jus) relative to theft is made out /brought into existence/ in the way and in the shape of statutory law: how stands the matter where the law (jus) relative to the same sort of offence /forbidden conduct/ is brought into existence no allowance then in the way and in the shape of jurisprudential law? (jus juris prudential.) A man is seen or suspected to have been committing an act which in /to/ the conception of the party entrusted presents itself as belonging to the sort of conduct expressed by the word theft. Expecting to find the like conception on the part /prevalent in the mind/ of the judge, he causes the supposed delinquent to make his appearance in presence of the Judge: the Judge actually entertaining that same conception, and finding the fact /matter of/ - the act of taking the thing in the circumstances (the psychological circumstances) which are understood to give the denomination of theft to the physical act of taking) proved to his satisfaction, sentences the offender to be punished with a certain number of stresses, which stresses are accordingly inflicted. Here then is an individual found on an individual occasion to have performed /exercised/ an individual act, and that of such a nature, that the judge thinks fit to inflict upon the individual /him/ under the name of punishment, a suffering in consideration os such his act, and by so doing to treat it on the footing of an offence: to treat him as in obedience to the prescription of an acknowledged legislator, he would have treated him, had there been in existence an article of statutory law incurring the offence of theft, explaining what sorts of acts /acts/ shall be understood as belonging to the sort of offence so denominated, and requiring or authorising the Judge to punish with stresses leaving the mode of infliction and the number not at his discretion, the individual act in question being understood by him to belong to the sort of acts comprehended under that definition, and thus mode and numbers of the stresses to be warrented[?] by the latitude of discretion given to him as above.
  • Title: [10 July 1804 Procedure & Evidence]
    Description: 10 July 1804

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    1. In the superior criminal class /department of procedure/ - theft - with or without the circumstances of aggravation which it ----- it ---- robbery housebreaking or burglary. Among crimes punished by the English law with the -- mode if ---- called felony, unclergyable or clergyable, the number of individual crimes of the above description committed in a year is at least 7 /20 or 10/ times as great as that of all other felonious crimes put together.

    2. In the inferior criminal or penal class /department/ - assault - (or injurious words spoken or written the number of individual offences of this description taking into account those prosecuted for in what is called the civil mode as well as those prosecuted for in what is called the criminal mode would probably found superior to all other offences under the ---- of felony prosecutable for one or other of those modes.

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    2. In the case of assaults and verbal injuries the same observations apply without any difference worth insisting on.

    3. In the case of goods sold and delivered to a consumer upon credit, if at the shop, there will be the master shop-keeper if his testimony be admitted or at any rate his journey-man: if delivered elsewhere, the porter with or without the corresponding evidence derived from the evidence of the Book-keeper confirmed and ----ed by the ---- of his books