date

24 March 1808 Letter V Ends
24 March 1808

Letter V

Ends of Justice

- a non-utility, which notwithstanding such its character, or rather in virtue of such its character, is a /vice/ compound of vices, of vices beyond /such/ any which it would be in the power of any really existing object, how vitious /depraved/ soever be [...?] /[...?]//[...?]/.

1. Uncertainty, its primary and effectual attribute, expressed within the [...?] result of all[?] form[?]

2. Spuriousness, it being the wish of the Judge disowning[?] his own work at the very time his hands are /employed/ seen to be employed in making it.

3. Imposture: produced in it as upon the people, and the Legislator himself, as the work of a legislator, never assigned, because never assignable.

4. Inexpediency, the necessary result of its spuriousness: the hands by which it is forged not being provided with the stock of information necessary to the making of good laws, nor any means of getting it. inexpediency, including an all-pervading repugnancy to natural justice.

5. Scantiness: the progress /space/ thus capable of being made /covered/ in the field of law being in respect of direction and velocity determined and limited by the calls made by individuals in the character of plaintiffs.

6. Incorrigibility, viz. at any rate by its own hands: for since no new speci of expediency can ever be infused /poured//drain[?]/ into it but by force of a greater mischief in the shape of uncertainty

7. Barbarity /8 Inhumanity:/ com,posed s it is of a string of spurious laws none /no one/ of which can ever be established without bringing with it that injustice which when /if ever/ inflicted by the legislator forms the disgrace of /a black spot on/ the statute book, under the name of an ex post facto law: instead of a word a blow

Take a man, as you would a dog, and give him a blow: coupled with the occasion on which it was given, this blow recollected by him to whim it was given, and observed by others (men or dogs) becomes a law, constitutes an article of jurisprudential law.

The offence undefined, though by proper authority it might so easily be defined, the law against theft a crime more frequently exemplified than all others put together stands to no[?] [...?] upon no clearer grounds.
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    20. 8. Spuriousness of the rule of action itself, thence its presumable inexpediency: as when, instead of being the work of the legitimate legislator, framed and made by the heads of, or by authority from, the supreme legislator, it is distilled and spun out from decisions in individual cases, and thus in effect, made, in pretence of being declared by the Judge, acting as Judge. In this case is whatsoever portion of the rule of action as exists, in so far as existence can be predicated of it, in the form of jurisprudential law.

    Vices inherent in the essence of jurisprudential law are

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    9 x Powers to Session - Rotation

    No lawyer so much in official station or geographical distance but that to a brother lawyer his repose - his profit - his interest in every shape - is consulted with a degree of attention beyond any that can be expected for the peace and welfare of a whole people. - Why? because in providing for the interest of a learned brother, he provides for his own: repose or profit granted makes a precedent in this own favour: repose or profit refused would make a precedent to his own prejudice.

    The opinion to be confirm[ed] and perpetuated, is that the interest of the lawyer is the sole object worthy of repose, that of the people not worth a thought for any other purpose than, nor on any other occasion than, that of its being made a sacrifice to the interest of higher dignity: and by every instance in which the sacrifice is made, this opinion is made to strike still deeper and deeper roots.

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  • Title: [8 August 1805 Evidence Introd]
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    Introd. Jursiprud

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    ''.9. [...?]

    Corrections, where they are made on it, can not any where be made but at the expense of certainty: in counter-weight against the particular advantage produced by the correction there is always the general mischief produced by the portion of uncertainty thereby infused into the whole system. By the same disposition by which the Judge is led on the particular occasion in question to depart from precedents /to violate the fundamental and universally extensive rule stare decisis/, so may he in any and every other. To disallow the authority of precedent on any one point is to disallow it on every other: it is to strike at a blow the whole fabrick of jurisprudential law.

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    1. The observation would approach nearer to a justification, if it were possible to draw the line between the rules which are, and those which are not so bad as to be worth changing: but this is plainly impossible.

    2. In the meantime the bare recognition of the principle that a rule once established may be departed from and virtually repealed by a Judge on the ground of its repugnancy to the principle of utility, would operate in men's minds in the character of a virtual repeal of an altogether undefined but vast and universally extensive portion of the aggregate mass of jurisprudential law.
  • Title: [30 July 1805 Evidence Note]
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    As in their adherence to preceeding decisions and dicta English lawyers /Judges/ have, from various causes, been more strict than the lawyers /Judges/ of perhaps any other nation, the /a necessary/ consequence is, that the vices /defects/ of English jurisprudence must have been so much more incorrigible. To this superior /more invincible/ incorrigibility may accordingly be ascribed /attributed/ in some degree. And as in English Law the defects of jurisprudential law are more invariable incorrigible than in any other nation so the [...?] bestowed on it in England so are proportionably outstrip by far whatever has been exemplified /bestowed on their/ own jurisprudence by the lawyers of any other nation upon earth.

    Secure /When once secured/ against contradiction, panegyric spurns all bounds of truth and reason /common sense in the room of a vice be it ever so characteristic and [...?] it [...?] without/. The property /virtue/ opposite to this self-evident incorribility is among the endowments /the endowment selected by/ /points of excellence and superiority with/ which Lord Mansfield chose for [...?] /chose for demonstrating the superiority of jurisprudential as compared to statute law/. "A Statute (says he) can seldom take in all cases. Therefore the common law (jurisprudential law) that [...?] itself pure by rules drawn from the fountain of justice, is for this reason superior to act of parliament." "From the period of this great judgement to the present time (continues his Lordship's biographer) the law has gone on continually working itself pure (to use Lord Mansfield's expression) by rules drawn from the fountain of justice".

    That common law is [...?] enough /has need enough of being worked pure/ may be admitted without much difficulty: but where are its means of working itself pure? When rules of an absurd and mischievous complexion are one /have once been/ established by the /a set/ [...?] of Judges, not to speak of disposition, what means have their successors of ridding the law of those rules? None but by departing from the fundamental principle of stare decisis, and thus assuming to themselves the authority of legislators.

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