3 August 1805

Evidence

Introd. Jurisprudent

I. Vices

'.7. Scantiness

True it is that in this statement, as applied to statutory law, there will in the law of every country be found down to the present day but too much truth. But the difference in respect of scantiness [in the respect] between statutory law and jurisprudential law lies in this: whatever scantiness any where is observable in the system of statutory law, is the result of the deficiencies /incomprehency/ in respect of probity or intelligence in the part of individual legislation, and by the [...?] of more competent hands to the task[?] may be removed at any time: but the deficiencies /scantiness/ of jurisprudential law is a defect in its very nature nor from any union of virtue on the part of the conductors is it capable of receiving a cure. The Judge, as such can do nothing of himself: whatever may be the rules of law he takes upon him at any time to lay down, the initiative function /power/ render not in him but in some individual (though it must be confessed in any and every individual) in the character of plaintiff.

Scantiness when thus explained turns out to be [it may again be replied) not a substantial /real/ defect, but only a nominal one: a defect in theory only not in practice. What matters is how defective it may be, in relation to cases that never occurred. Take what case you will, let it but occur there sets Jurisprudence an instant readiness[?] /no sooner does it occur, then jurisprudence is ready/ to provide for it.

Provide for it? yes in some way or other, that it /she/ will always do, in some way or other; of that there is no doubt: avowedly or virtually be the case what it will, a decision one way or other he will give. A service of a certain description is [...?] of her: she will either render it, or [...?] to render it, a delay rendering it which for the time that the delay lacks in refusal to render it. Provide for it, in one or other of these ways she will not fail to do; but the question is whether the provision thus made will when made be a proper one.