date

9 March 1807 Letter V I. Shapes
9 March 1807

Letter V

I. Shapes

1. Misdecision

Look for it among the Reporters and Compilers, then along with the discordant chaos comes the previous questions, which was the most learned Judge, which was the most accurate Reporter, which the most judicious Compiler: not one of them all having had so much as the occasion - not to speak of sense or public spirit - to take or attempt to take any tolerably comprehensive view of this that or any other subject they ever touched upon: at least with reference to any such purposes as those of general utility and natural justice.

Would you pursue the enquiry through this chaos? - You must pass in review all these pseudo-legislators - the Cokes, the Hales, the [...?], the Comyns, the Gilberts - You must fancy in your own mind, though you must not say so - sometimes that in the one, sometimes that in the other you have the right and proper legislator and that the words you read in his book - that book which never would have made its appearance but for the patronage given to it by some bookseller, constitute for the occasion the tenor of the law.
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  • Title: [9 March 1807 Letter V I. Shape]
    Description: 9 March 1807

    Letter V

    I. Shape

    1. Misdecision

    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.
  • Title: [19 Aug 1804 Procedure Ch. non]
    Description: 19 Aug 1804

    Procedure

    Ch. non homologation

    The part which a statutory law is taken by the King - the proficient and [...?] part - indeed more than the King's part - is thus in jurisprudential law taken by /the [...?] of/ the Bookseller - by any Bookseller. By King Lords and Commons law has never hitherto been but in retail: by the note-taker, the note-takers representative and the Bookseller law is thus made by wholesale: a chaos of any magnitude is added to the former /mass of existing/ chaos. such is the process /constitution/ where as for the most part and [...?] to be the case, the notes wait for the death of the note-taker to become law: if instead /[...?]/ into the world duranti Vita, as of late years, the process is still shorter. But of this in another place.

    A rule of law may thus reign triumphant for half a century. AT the end of the term, out comes a fresh book of Reports, [rendered the more venerable and the more authoritative by age] and lo! the old rule finds itself bereft of its authority by a new produced rule still older, as in statutory law, an older statute is repealed by one of fresher date. Bubble thus succeeds to bubble; like spheres of soap-suds blown up by boys or by philosophers out of tobacco-pipes. Bubble thus succeeds to bubble to this tenor, there are no limits to their surprises.
  • 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.