8 March 1807

Judicial Justice

Letter V

I. Shapes

1. Misdecision

In regard to the jurisprudential division of scientific language, the proper and only proper and necessary source of interpretation in which their import can be to be looked for, is the code, the all-comprehensive body of statute law itself. In this receptacle if any where they must find their interpretation. But their interpretation, in what will it consist? - In the giving on the occasion of each such scientific word, or scientific combination of words, by the supposition not in general use, its equivalent in a portion of discourse composed altogether of such words as are in general use.

That this is feasible, may be averred with confidence. In regard to each such word, if a man comprehends the meaning of it, the proof and test of his so doing is his being able to express the meaning of it in a portion of discourse composed altogether of words in general use. Take any such scientific word for example; and with it a man of law conversant in the degree in which lawyers general are, with the words that compose the appropriate language of the law. Is the word unintelligible to him? it might not to be any where in use, among any set of men: it is not a bond of social intercourse, but a snare. Is it intelligible to him? he is then able to express the import of it in other words - in words in general use.
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    Description: 8 March 1807

    Judicial Justice

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    1. Let the rule of action - the standard of rectitude be conceived to exist, throughout its whole extent, in the state of Statutory law. Being, throughout its whole extent, expressed by a determinate assemblage of words, the whole matter of law is now included in that mass of words: no question of law can be started, that does not turn upon the intention of the legislator, as deducible from some one or more articles in that collection of words.

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    Description: 11 May 1808

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    If terms of antique and scientific structure, such as felony, corruption of blood - praemunire or │ │ were alone in question there might be more/some[?]/ reason for reserving the cognizance and interpretation of them to learned lips.

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    Laws are enacted every day, which on pain of death, every man, those of the lowest and most uninstructed classes not excepted, is called upon and supposed to understand, on pain of death: lay these same words before a select assembly composed of men who are not, or at any rate need not be and ought not to be, taken from the uninformed classes, those select men, selected to be made Judges over others, are not to be suffered to hold themselves competent to understand it. (a)
  • Title: [9 March 1807 Judicial Injustice]
    Description: 9 March 1807

    Judicial Injustice

    Letter V

    I. Shapes

    1. Misdecision

    In the penning of real law, the study of the real legislator naturally is as it ought to be, so to choose his words that the questions of law arising out of them shall be as few as possible. It is for this purpose that except for the purpose of abbreviation, as above mentioned, he will never lose sight of two congenial endeavours, on every occasion to employ such words as are in most common use with the people whose fate they dispose of, and never to use them in any other sense than that in which the people understand and use them.

    Correspondent to the study on the part of the real legislator, though by the rule of contraries, has been, in his character of pseudo-legislator, the study of the English Judge. Example: Magnifying Jury trial in outward show, undermining it in practice, denying in the teeth of uninterrupted experience the right of Juries to decide the question of law, arrogating to himself the exclusive cognizance of all questions of law - of all questions grounded on words of law, he converts into a word of law - a source of questions of law words of all sorts as many as the language furnishes. Words made by the partnership, and in use nowhere but in the partnership answer this his purpose well: words in common use and in the most common use answer it still better. Law jargon produces manifest obscurity, serves as a bugbear, and forces men into the arms of the partnership for advice, by the dread of falling under the lash of the law and by the sense of dependance produced by conscious ignorance. Ordinary language, infected by passing through technical hands, answers the better purpose of a snare, and thus inveighs them into transgression, that vent[?] their torment the partnership may extract its profit.