date

8 March 1807 Judicial Justice
8 March 1807

Judicial Justice

Letter V

I. Shapes

1. Misdecision

The rule of action being in the state of statutory law, the question of law is therefore uniformly a question concerning the import of a certain word or assemblage of words. But whose then are these the words? Of whom, but of the legislator? If, among those whose duty and business it is to assign an import to any such assemblage of words, there be a doubt which of two imports is the true one, to what Oracle should recurrence be made, but to the legislator? If it be a law of his own making, is there any other person so well able to understand, so competent to declare what his meaning was or is, as he? If it be among the laws received by him in the way of adoption from his predecessors, if he understands[?] not better than any one else, what on the occasion in question was their will, what he can not but understand is a matter still more directly material - viz: what at the time in question is his own will: that will which in truth at each given moment of time is the only immediate rule of action and standard of rectitude.

 Go on to explain what constitutes the matter of law under jurisprudential law, in analogy to the above.
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    Under statute law every point relative to the words is determinate and not of dispute: what they are, whose they are, in what part of the rule of action, on what occasion delivered.

    Under jurisprudential law, the question of law is still resolvable into a question concerning the import of words. But here any point relative to the words is indeterminate and liable to become matter of dispute: what they are, whose they are, or what part of the rule of action, supposing there were one, and on what occasion delivered. In what part of the rule of action supposing any such thing to exist: but here the fundamental misfortune is that no such thing has any existence.

    Under Statute law it may happen that the rule of action itself, the article of substantive law in question will be recognised to be erroneous, when compared with the ideal standard of rectitude, composed of the dictates of general utility and natural justice. When any alledged instance of misdecision is presented to the notice of the supreme judicature, if it reside in the same hands or in any part of the same collection of hands as the supreme legislature, here will be an occasion in which, whatsoever be the fate of the judicial decision, amendment may be given to the law. But of this in another place.
  • Title: [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.

    Of these words some will be words in general use, words in every mouth, and the import of which may and must thence be presumed to be in every head, and words in particular or special use. These words may be called technical or scientific terms; terms the use, or at least the constant use of which is confined to persons occupied in the exercise or study of some particular profession, art or science. These scientific terms will be either non-jurisprudential or jurisprudential. In regard to non-jurisprudential terms, the import of them ( scientific list, to match with a useful distinction in regard to evidence - scientific evidence, unless in so far as it may have been thought fit to consign an explanation of them to the statute book itself) will upon every occasion be to be sought from the testimony of persons conversant in the particular course of action - profession or other profit-seeking occupation - art or science: these will form no part of the matter of law.
  • Title: [9 March 1807 Letter V I. Shape]
    Description: 9 March 1807

    Letter V

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    Thus it is that every question of law is a question concerning the import of some word, almost always of a general nature, consigned to writing, and considered as forming part and parcel of the law.

    In the case where the rule of action is in the state of statutory law, the assumption agrees with the truth of things: and every mind of like natural strength and alike used to relection is alike competent to judge of it.

    For otherwise is it in the case where the rule of action is in the state of jurisprudential law. Jurisprudential law is throughout the whole shapeless mass of it an imposture. No legislator: not a word in it that is the word of any man who is so much as pretended to have written in the character of a legislator - Yet words alas! there are in it, and but too many. Whose are these words? the words attributed by this or that Reporter to this or that Judge, as having been employed by him on the occasion of his concurring in the pronouncing of a decision in this or that individual case: or the words of some Compiler, as employed by him in the endeavour to give a general idea of the considerations that may have served as grounds of decision for the decisions pronounced in the class of cases which he undertakes to treat of.

    For example take again the case of the word force. Look for it in the most determinate source of information, the accustomed forms of pleadings, you find it means nothing at all; as in the case of adultery, a transgression by consent, never committed, if the mendacity-manufacturers are to be believed, without " force" and " arms" into the bargain.