date

3 June 1807 Letter V Litigation
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.
Similar Items
  • Title: [PRIVATE 3 July 1807 3]
    Description: PRIVATE

    3 July 1807

    3

    Letter V

    II. Litigation promoted

    Directions and Instructions employed or in the fabrication or strengthening of the above engines - principally by means of a precedent use of the devices mentioned in Letter I.

    1. For creation and preservation of uncertainty.

    1. Seat of the uncertainty the matter of law - contrivances respecting the form.

    1. Keep jurisprudential i.e. fictitious from being converted into statutory i.e. real law (Device).

    2. Keep the materials of jurisprudential law in as perfect a state of latentcy[?] and uncognosibility as possible.

    3. Keep them by means of fiction and jargon (Devices │ │) in a state of as perfect unintelligibility as possible.

    4. In whatever patches the materials of the body of statute law make their appearance, keep them in as high a state of obscurity and ambiguity as the nature of law in that form admitts: and this as well in respect of method as of phraseology, and terminology.

    II. - Contrivances respecting the matter or substance -

    5. To baffle conjecture, be careful to place and preserve the materials of jurisprudential law, and in particular the alledged reasons on which the several decisions are grounded, in as compleat a state of irrationality and absurdity, as the state of the laws in respect of knowledge, will admitt.

    6. In particular in regard to contract, (testaments and other conveyances included) cooks up the general rule by which the force of law is given to them, and besides[?] taking care, that it shall never have any determinate assemblage of words for the expression and fixation of it, clog it by exceptions, limitations, conditions and distinctions, as numerous as irrational, and thence as unconjecturable as possible.

    7. By constructions as forced, or what is better, as fully in the teeth both of letter and spirit as the legislature will endure, extend on every favourable occasion to statutory the uncertainty so essentially inherent in jurisprudential law.

    8. Apply to all contracts of the principle of nullification (Device │ │), and that on occasions as numerous, and on grounds as frivolous, and irrational, and thence as unconjecturable, as the laws[?] will endure.
  • Title: [23 June 1805 Evidence Introd]
    Description: 23 June 1805

    Evidence

    Introd

    Ch. Non-Notoriety

    ''.3 Contracts

    ''. Non-Notoriety in regard to the law of Contracts

    A particular mischief resulting from non-notoriety attaches upon the law of Contracts: under which, for the present purpose at least, may be understood /comprized/, testaments, and consequences, as well as obligatory arguments and promise.

    A contract is a particular law, to which in so far as the validity of it is admitted, the legislator lends his sanction. a law in regard to which the initiative power resides in the individual, and which the legislator, so far as he allows the validity of it, and thereby lends the force of the judicial power to provide for the execution of it, confirms and makes his own /adopts as if it were his own/.

    Two authors at the least may accordingly be seem contributing to the formulation of each such law: the contracting party or parties, the instant or [...?] author or authors; the legislator the [...?]. (a)

    Contracts taken in the aggregate being necessary [...?] to the well-being (such as buying and selling) [...?] (such as marriage) to the very being of society, are generally perceived and understood to be so: and moreover in every civilized community the enforcement of them, by the hand of law, is matter of universal observation to every body.

    Being the difference between jurisprudential and statutory law (of which in its place) The state of things is therefore in this respect exactly as it would be if in every community a law in these precise words existed and was universally known to exist. Saving particular exceptions whatever contracts are really made, shall be faithfully observed.

    As every thing that is dear to them comes occasionally to depend upon the faithful fulfilment of those obligations which it is the object of these instruments respectively to impose, men are in the habit of trusting in this way any thing that is dear to them to the good faith of the legislator and his subordinate the Judge.

    Note

    (a) This nomenclature has been already applied to the subject; but confined to the single and comparatively narrow case, of this species of contracts, viz: conveyances which are called foundations.
  • Title: [12 June 1807 Letter V II. Litigation]
    Description: 12 June 1807

    Letter V

    II. Litigation

    8. 4. Applying the principle of nullification to the defeating of contracts of all sorts, and on all sides, on grounds as irrational and absurd, and thence as unconjecturable, as possible.

    II. Seat of the uncertainty, the adjective branch, i.e. the system of procedure.

    9. 5. Applying the principle of nullification to the steps of procedure, on each side of the cause: thereby, except as to the burthen of costs, throwing back the plaintiff into the same condition as he would have been in, had he taken no step at all in support of his demand: with or without the liberty of taking another chance for justice, by a fresh suit: and the defendant who is in the right, in the condition he would have been in, had he taken no step at all in the way of defence: with or without the liberty of taking another chance for escaping oppression, by a fresh defence.

    10. 6. Exclusions put upon evidence, and that by rules, great but uncertain in number, and, in almost every instance, sometimes observed and sometimes not observed.

    11. 7. Evidence received in various improper shapes: improper, because not affording so good a chance for correctness and compleatness as would be afforded by others, thence stiled more proper ones: and this, when the delay, vexation and expence attendant on the improper is greater than would have been attendant on the proper shape.