date

9 March 1807 Judicial Injustice
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.
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    Appear is a word in common use (what word in more common use?) and so much the better suited to the purpose of being converted into a snare. This amongst so many others has been taken into technical hands, infected with technical poisons, made into a law-word pregnant with questions of law. Questions of law bred out of it may be seen in Comyns digest, solved or unsolved by propositions │ │ in number, true or false filling 12[?] 8 o pages equal to twice or thrice as many ordinary ones.

    By an order signed by a Judge, a man is commanded to appear, on a day therein mentioned, at a place therein mentioned:- what is the consequence? Appearing at that same day and place, but without employing an Attorney to appear instead of him at another time and place, he is punished: employing that member of the partnership to appear at that unspecified time and place, though not appearing at the time and place commanded, he saves himself.

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  • Title: [9 Mar. 1807 Injustice in Judicature]
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    Letter V

    I. Shapes

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    Examples might be added to the amount of volumes upon volumes: but from these few, as satisfactorily as from any number of such volumes, the following conclusions may, it should seem, be deduced.

    1. That for various purposes it is of importance that the distinction between matter of law and matter of fact should be clearly apprehended, and the separation carefully made and kept up.  Here enumerate the purposes

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    /Appendix/

    Lawyers have double sinister interest: 1 as Lawyers, 2 as members of the Aristocracy; connected with the others.

    One sinister interest there is, which is common to all countries and sure to have place in a body of this sort. This is the interest of the Lawyer class. It is their interest that the number of suits be as great as possible: it is their interest that the expensiveness of each suit be as great as possible. It is their interest that their influence in the event of each suit be as great as possible. That the number of suits may be as great as possible it is their interest that the purport of the law taken © the whole together be as little known as possible: that, to this end, over the greatest portion possible of the fields of law & judicial decision, no real law shall have place: and that the place of it be in each man's mind be supplied by an Article of imaginary law, composed of a conjecture, what, in case of litigation, the decision of the Judge will be: the Judge being, by the non©existence of real law, left at liberty to feign the existence of an imaginary law, framed by him on each occasion: feigned by him for the purpose of affording a warrant, for whatever decision happens to be best©suited to his purpose. It is their interest, that to this same end what patches there are of real law stuck upon the all©comprehensive ground of imaginary law may separately taken be expressed in words and phrases, as obscure and ambiguous as possible and in the whole together in masses as enlarged and confused [?] as possible.

    To the same end it is their interest that the terms in which expression is given to that portion of the rule of action which is in the state of imaginary law, and thence to that which is in the state of real law should in as large a proportion as possible be either word of their own fabricating to which no idea can be annexed by those whose lot they dispose of, or of words in common use to which in their discourses they attach a meaning different from that which is attached to them in common use: in such sort that whoso attaches to them the meaning in common use and conducts himself accordingly, may fall into the snare /be deceived/, and be involved in litigation