date

9 March 1807 Letter V I. Shapes
9 March 1807

Letter V

I. Shapes

1. Misdecision

To appear is to appear - the sense of it imprisoned, what more instructive explanation could such a word receive? Whether at such a time or place John Stiles appeared or no, what if there were such a thing as a question of fact, could such a question be, but a question of mere fact? Yet this is among the questions which English jurisprudence has thus contrived to number among questions of law!

Heirs - heirs of the body - Heirs by itself, a word which lawyers must from the first have found in the most common use, but to which for the certainty's sake in any book of real law it might not have been improper to have subjoined an explanation - supposing it always composed of other words in equally more common use less susceptible of misconception, and at any rate not selected for the purpose of deceipt.

Making his will in favour of a friend who has a family, a man gives to him and his heirs, meaning that his heirs shall have it, which they can not if he sells it. What does the English lawyer. He takes in hand and poisons the word heirs, he takes out of it the sense he found belonging to it, he crams into it a sense he found not belonging to it. The meaning of the testator was that the first object of his bounty should not deprive the others of it; the man of the law invests him with that power, perverting the word into two words, adopting it into his mass of spurious law.
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    Description: Evidence

    6 July 1805

    Introd

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    By technically-perverted language I understand such language as being in an active sense in common use among the people is taken in hand by lawyers and employed by them with a sense annexed to it different from any which at the time in question, is commonly annexed to it by the body of the people /in common use with the body of the people/. There is ambiguity: and the /fraud is the [...?] in the existence of it/ creation of it is the work of fraud. In every such case there is ambiguity, every such case there is deceit /fraud/.

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    1. In the one case the person by whom the perverted language is employed is of the body of the people. The man of law - the Judge, taking up /in hand/ this language, ascribes to it an import which not being annexed to those same words in ordinary usage, was to his own conviction not meant to be annexed to it by him who used it. Of this species of perversion the nature and effect is most conspicuous in the case of instruments of contract: such as Wills, Conveyances, and Agreements.

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  • Title: [9 March 1807 I. Shapes Misdecision]
    Description: 9 March 1807

    I. Shapes

    Misdecision

    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.

    In process of time, the virtue of fraud having become effeté, order from such a quarter so to appear, had in the conception of a part of the people, come to be understood to signify an order to employ an Attorney. To mend the snare, the word personal has been added. At length notwithstanding the reinforced asseveration, the word is understood to have been no more sincerity in it than before. A general understanding has obtained (this at least is the best result that can be hoped for) that whatsoever comes from that quarter is undeserving of all credit: the snare has become harmless: the bugbear alone remains. To save himself from being devoured by it, a man flies of course into the arms of an Attorney.
  • Title: [3 March 1804 Evidence Securities]
    Description: 3 March 1804

    Evidence

    Securities

    Ch. Procedure Technical

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