JB_092_110.xml

Title: [PRIVATE 5 June 1807 Letter]

Description: PRIVATE

5 June 1807

Letter V

Litigation - Prevent Promot.

Letter V

II. Litigation

I. Arrangements of the legislator for preventing wrongs commissible through ignorance - sources of bonâ fide suits.

General description of the principal efficient cause or instruments establishing certainty on the part of the law: viz. in respect of the rights with their correspondent obligations created, or at the will of parties made creatable: hence in regard to the wrongs, whereby the correspondent obligations are disfulfilled and violated.

Uncertainty[?]

I. Arrangements that are or ought to be employed by the legislator for the prevention of it.

I. Arrangements respecting the form.

1. Putting the rule of action into the state of statutory, i.e. real and genuine law.

2. So long as in any part it continues in the state of jurisprudential law, giving to the materials serving as grounds of conjecture, and in particular to judicial decisions, with their grounds and reasons, the only species of materials susceptible of encrease, the most extensive and effectual degree of publicity possible.

3. Putting the rule of action into the highest possible state of cognoscibility possible, by separating from that portion of it in which individuals of all classes and descriptions are alike concerned, those portions in each of which two or some other small number of classes are concerned - to the end that each individual may have within his reach and within his grasp that portion in which he himself is concerned, without feeling any part of that with which he is not concerned lying as a burthen upon his attention, his memory or his purse.

4. Choosing for the terms or language of the law expressions throughout as familiar and at the same time as precise, as certain in their signification as possible: composed, as far as possible of words in ordinary use: terms not in ordinary use employed as sparingly as possible; and then never without explanations (given once for all, with subsequent references) explanations composed of words in ordinary use. The import of the leading terms, where uncertain by reason of ambiguity, cleared by requisite fixations; or where, by reason of generality, particularized by appropriate specifications.

5. Devices of Judge and C o for promoting wrongs committed through ignorance, sources of bonâ fide suits.

General description of the principal device or instrument. Fostering uncertainty on the part of the law: i.e. in regard to rights and their correspondent obligations -hence in regard to the wrongs whereby the correspondent obligations are violated.

Uncertainty:

I. Principal devices or contrivances employed by Judge and C o for the promotion of it.

I. Devices respecting the form.

1. Keeping the rule of action in the state of jurisprudential {to the exclusion} of statutory law conjectural, imaginary, sham, spurious, to the exclusion of real and genuine law. See Letter I. Devices: N os 18 & 19.

2. Keeping the materials of jurisprudential law - the materials of conjecture, (decisions in particular with their reasons) in a state of incognoscibility as compleat as possible.

3. Keeping them in the highest possible state of unintelligibility, through the medium of fiction, and jargon in all its shapes (See Lett. 3. Device the │ │).

4. Keeping in the highest possible state of confusion whatever part of the rule of action can not have been kept out of the state of statutory law.

Note

( ) To this head belong the irresistible and therefore but too successful and recent exertions made by the Court of Session, or at least by certain of its Judges, to put a stop to the publication of the grounds and reasons of the decision as exhibited by the speeches of the respective Judges, in addition to the decisions themselves, of which a scanty and tardy selection is supposed to be published: an incident of which will be taken ulterior notice in another place.

Also the recently discontinued exertions of English Judges to the same end.

JB_092_111.xml

Title: [3 June 1807 Letter V Litigation]

Description: 3 June 1807

Letter V

Litigation Prevent. Promot.

II. Litigation

I. Arrangements respecting the matter or substance.

5. 1. In the pruning of the law care taken by the requisite specifications to supersede as far as possible all necessity of conjecture; and where that can not be done, to afford every facility to that necessary task. For this purpose amongst others, taking care to lay open to view the reasons i.e. the indications of utility which in the will and understanding of the legislator give birth in each instance to the provision made by the law:- for, the people, taking for granted, as of course than in each instance, it was the view of the greatest possible public good that gave birth to the disposition of law will see no course so obvious for discovering the import of the law, as the discovery of the public good expected to be produced by it.

6. 2. Ex. gr. In regard to Contracts, including testaments and other conveyances, laying down for the general rule - that contracts in general are adopted and made obligatory by the law: viz. on the ground that man necessarily and perpetually engaged in the pursuit of his own interest will not in general make any promise or do any other act, that is contrary to it: attaching to this general rule no exceptions, without special reason, in each case assignable and assigned each serving to rebut in respect of utility the presumption operating in support of the general rule: for example, force and fraud, under their various specifications and applications.

7. 3. To prevent on the part of the Judge licentious interpretation, prescribing regular and prompt returns to be made of the several clauses in the body of the law, which within a determinate space of time, have in the several judicatories been subjects of dispute: together with the interpretation given to them in each case: to the end that, if any fault appear in the decision, the decision may be amended, if in law, the law.

II. Devices respecting the matter or substance

5. Seat of the uncertainty the substantive part, i.e. the main body, of the law.

5. 1. To prevent that part of the rule of action which has been preserved in the state of conjectural law from being reached and anticipated by rational conjecture, rendering it throughout as irrational and absurd as possible.

6. 2. Ex. gr. In regard to contracts (including Testaments and other Conveyance) viz. Contracts the execution of which would not be productive of assignable mischief to a preponderant amount, attaching to the general rule according to which they are adopted by the legislator and receive from him the force of law, as many groundless, irrational and thence unconjecturable exceptions as may be devised.

7 .3. In regard to such portion of the rule of action as could not be kept out of the state of real law, doing whatsoever can be done towards rendering it uncognoscible by interpretations called constructions, the more irrational and thence unconjecturable, the better.

Example. In regard to costs, where by the legislator 2 is directed to be given, giving 1½; where 3, 1¾.

JB_092_071.xml

Title: [3 July 1807 5 Letter V]

Description: 3 July 1807

5

Letter V

II. Litigation promoted

9. So likewise, throughout the whole system of procedure, apply the principle of nullification to as great an extent as possible: rendering its effect sometimes dilatory sometimes peremptory, and rendering it, on each individual occasion, as difficult as possible to foresee which of the two effects it will have.

III. Seat of the uncertainty, the matter of fact -

10. Exclude the light of evidence, on pretences as numerous, as frivolous, and thence as uncognisable, and even unconjecturable as possible: taking care that, of the rules [...?] of these exclusions, there shall not be so much as one that is not continually broken through! and that for reasons which are not good but in the supposition of the badness of the rules. Devices.

11. To the exclusion of the best shape, require to as great an extent as possible that the evidence shall be presented in the worst shape possible: most favourable to perjury, to misdecision, to the production of factitious delay, vexation and expence. (Device │ │) observing in particular to admitt under the worst shape what you exclude under the best.

II. Directions and Instructions for the creation of delay. See Table

III. and IV. Directions and Instructions for the creation of expence and vexation.

Expence and vexation, these in so far as factitious, are produced principally by factitious complication. For the nature and intimacy of its connection with factitious delay see Table 1, Note │ │. Causes of factitious delay are in general, in a correspondent degree, causes of complication, vexation and expence.