date

082-262] 9 May 1808 I. Reasons
082-262]

9 May 1808

I. Reasons

Ch.II

§.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.
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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: [9 May 1808 I. Reasons Ch.II]
    Description: 9 May 1808

    I. Reasons

    Ch.II

    §.2.

    3. In the case of written law, in the statutory form the portion of substantive law in question being the principal, the corresponding instrument belonging to it the accessory, the substantive law has in the first instance been framed at any rate, the instrument if framed at all by the same hand, cast upon it as upon a mould, afterwards.

    In the case of unwritten law, it is the instrument, in as far as any instrument can be said to have had existence, that has taken the lead: the instrument, on which every element approaching reality centers[?] having taken its fashion in the first instance, the corresponding portion of substantive law in that gasseous form of which alone in the state of unwritten law, the rule of action is susceptible, has, as it were by distillation, risen out of it.

    4. In one case an instrument of demand - a declaration, an indictment - having been presented to the Judge, and on the part of the defendant objected to, has by the Judge been pronounced wrong. Why wrong? because not conformable to that image of the corresponding portion of substantive law which the fancy of the Judge, operating upon such materials as he had found at hand, had framed for the purpose.

    In another case the instrument has been more fortunate: why? because no such ideal standard had been set up, or if any, the instrument was not found unconformable to it. The instrument having thus undergone the test, has been gathered up by some of those volunteer and uncommissioned hands, to whose unauthorized industry the unwritten law is in so considerable a degree indebted for its existence, and by them deposited in some corner of that immense repository which contains the materials out of which the commodity called unwritten law, when and in proportion as it is called for, is distilled for use.
  • Title: [15 March 1808 Note Jurisprudential]
    Description: 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