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[lxxxiv. 55]
1821 Dec. 3.
Codification Proposal
penulte
?.5 Draughtsman Single
Lawyers interest begotten prejudices
Thus much /Avove/ as to form. Now as to matter Undisguised and machless atrocity is the characteristic of Rome©bred law: insincerity, imposture and fraud that of English©bred law.
On the penal branch of the field, Rome©bred law opens a class of offences divided into Lese©Majesty divine and Lese©Majesty human. To neither class of acts in any code that had for its object the greatest happiness of the greatest number would any punishment in any shape be attached: to neither is punishment in any shape attached in the Anglo©American United States. and by the governments by which Rome bred law is employed punishment in its most excruciating forms has been attached to both classes
Lawyers fiction is falshood © wilful falshood applied to the purpose of usurpation: to the prejudice of some interest or other it is in any case a fraud.
In their application to the Constitutional branch of law the fictions of English lawyers have not been altogether without excuse: in their application to the adjective branch of law © to the law of judicial procedure, their object has been purely [...?]: and so in their application to the civil branch of the law. Applied to procedure fictions have been the instruments employed by the several judicatories in stealing business that is to say in stealing money from one another In one case fiction has been productive of this cluster of effects in frustrating the known design of legislators law: in cheating out of their estates the individuals entitled under that law; and in giving themselves and their retainers [?] a share in the profits of conveyancing at the expence of the professors of that branch of law. They took /[...?...?]/ away mens estates in pretence of adequate compensation. Knowing him to have no /be without/ property they set up a creature [?] of their own on whom they pretended to impose the obligation of making such compensation.
Under such a system if virtue and vice had for their measure the quantity of good and evil of pleasure and pain respectively produced or worked by them, it would be a question, whether the most virtuous of the men by who whom punishment has been received [?] at such hands have come up /reached [?]/ in the scale of vice to the altitude of the least virtuous of those by whom they have been punished
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Title: [16 May 1808 I. Reasons Ch.V]Description: 16 May 1808 I. Reasons Ch.V. Advantages §.9./8./ Fiction ousted Into Scottish judicature the English Jury trial as bestowed upon English pleading could not be imported but that fiction - that is if not the practice, the result and produce of the practice, would be imported along with it: imported, and by wholesale; nothing in the whole system of pleading being done without it: for the short but not less true account of the matter, if on such a matter the truth may be spoken, is - the whole system of procedure - of Common Law procedure - is one great lie. But once more, the importation of English pleading into Scotland is impossible. On the present occasion this truth may be acknowledged without much difficulty, Scotch lawyers not having been attached to the use of fiction by habit and prejudice, will not naturally be disposed to regard the exclusion put upon it by the proposed plan as a loss. Fictions of English growth nothing hinders them from viewing in a true light: for fictions of Scottish growth, even were[?] the cast[?] favourable to them, which it never has been, the season is too late.
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Title: [[lxxxiv. 53] 1821 Decr 3 Codification]Description: [lxxxiv. 53] 1821 Decr 3 Codification Proposal penult ?.5. Draughtsman Single Lawyers interest begotten prejudice In no country, until an all comprehensive and rationalized body of law shall have been established in that same country can the sinister influence © of the body of imaginary law with which that country is infested be altogether extinct. /extinguished./ From /In/ the mass of legal matters belonging to that country is every man forced to resort /under the necessity of resorting/ for the explication of those several terms that are employed in speaking of the several rights and obligations which by the force of legislator and the Judge are brought into and put out of existence To that same mass of legal matter is the legislator under a necessity of resorting for the subject [?] matter [?] of his power his science and his art: for the common [?] aggregate mass of the several cases by which a demand for the exercise of legislative authority /operation/ is created or has been supposed to be created Compared with the Rome©bred, the English©bred species [?] is in a prodigious degree the [...?] in respect of both these classes of elements: In respect of one class this opulence /abundance/ is productive of evil: in respect of the other class it is productive of good. 1. It is in the article of technical terms that the abundance /The article the abundance of which/ is productive of evil is the stock of technical terms. Inappositeness, absurdity, thence incomprehensibility by any force of reason are attributes common to both stocks. But in respect of the degree in which they are possessed, Rome©bred law stands at the [...?] of the scale In the English language there is a portion which appertains in an exclusive manner /is exclusively in use/ by the unestablished and punishable class of depredators. Is is called the thieves cant, or the slang or flash language There are dictionaries in which the terms are ranged in alphbetical order with their respective definitions Besides serving for entertainment the [...?] idea [?] serves for an instrument of secret communication to those who are instructed in it and thereby for covering their operations with a veil of secrecy, The same ”Exactly•
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Title: [[lxxxiv. 58] 1821 Dec. 3 Codification]Description: [lxxxiv. 58] 1821 Dec. 3 Codification Proposal penulto ?.5. Draughtsman Single Rome Law As a body of discourse it is indeed a a most [...?] existing reality: but as a body of law it is a mere fiction. To answer in any tolerable degree its professed purpose, a body of law should /must/ be the expression © of /given in and by a determinate set of words to/ the will of a determinate individual or assemblage of individuals, determined as and so declared to be such declared to be such at some determinate point of time /place/. Nulles lex verbes, a nullo, nullibi, nunquam Law, in no words, by no man, never made Such are the negatives of which it is composed. Yet how strenuous the attachment to it. Look for the causes, you will find them in its worthlessness. The more obscure /[...?]/, ambiguous, loosely worded, incompleatly expressed [...?] confused and inconsistent it is the greater the labour necessary to the obtaining such imperfect conception as the nature of it admitts of. Be the subject matter what it may The greater the quantity of labour a man has expended upon it, the more unwilling is he to regard it as thrown away: and thus it is that instead of being in the direct ratio a mans attachment to the subject is in the inverse ratio of the intrinsic /real/ value of it As to the nomination the vocabulary /terminology/ © /No classification © no tolerably well adapted nomination/ the necessity of exposition in the case of the leading terms © what words require to be expounded, what is the apt and only apt mode of expounding them, what are the terms which not standing themselves in need of exposition are fit to be employed in expounding those that require to be expounded © all these things are known © all these points are determined at present © none of them were in any tolerable degree well settled, if they were so much as thought of, at any part of the time during which the chaos of Rome©bred law was in accumulation Comparatively speaking, Only of late years has any application been made of the art of logic,to the subject of language.
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