15 May 1806

Evidence

Jurisprudential

Ch. II. Vices

2. 1 Arbitrary

Per L. Mansfield in Jones v Randel. Cowp. 39.

"It is argued and rightly, that notwithstanding it is not prohibited /(over a wager the sort of wager in question) by any positive law, nor ajudged/ illegal by any precedents, yet it may be decided to be so upon principles; and the law of England would be a strange science indeed if it were decided upon precedents only. Precedents seems to illustrate principles, and to give them a fixed certainty. But the law of England, which is exclusive of positive law, enacted by statute, depends upon principles: and these principles run through all the particular cases according as particular circumstances of each have been found to fall within the one or other of them."

The question then is, whether the wager is against principles? if it be contrary to any, it must be contrary either to principles of morality; for the law of England prohibits every thing which is contra bonos mores, Or it must be against principles of sound policy; for many contracts which are not against morality, are still void as being against the maxims of sound policy."

Conceive a Bill, introduced in those terms for Whoever does any act /which in the opinion of the Court of Kings Bench/ contrary to morality or contra bonos mores shall be punished by force to any amount of imprisonment for any length of time that the said court deem proper.

''.2. Whoever does any act that in the opinion of the said court is contrary to sound policy, shall be punished as aforesaid.

''.3. Every contract contrary to sound policy, is hereby declared to be void.

Conceive a Bill couched in any such terms introduced by the administration into either House of Parliament - what would the opposition, what would the House say to it?

Conceive, if the supposition be not too odious to be rendered for a moment even in the character of a supposition - conceive a Bill in any such terms, or to any such vague effect, passed acts[?] law: what would the public say to it?

Such was the sort of law made by lord Mansfield: such the course taken by /way he took/ him to make it: and certainly - but too certainly - in making law in that way /time/ he was not without warrant either from "precedents" or "principles".