30 July 1805

Evidence

Note 2

Introd. Jurisprud.

ch. II. Vices

9. Incorrigibility

As in their adherence to preceeding decisions and dicta English lawyers /Judges/ have, from various causes, been more strict than the lawyers /Judges/ of perhaps any other nation, the /a necessary/ consequence is, that the vices /defects/ of English jurisprudence must have been so much more incorrigible. To this superior /more invincible/ incorrigibility may accordingly be ascribed /attributed/ in some degree. And as in English Law the defects of jurisprudential law are more invariable incorrigible than in any other nation so the [...?] bestowed on it in England so are proportionably outstrip by far whatever has been exemplified /bestowed on their/ own jurisprudence by the lawyers of any other nation upon earth.

Secure /When once secured/ against contradiction, panegyric spurns all bounds of truth and reason /common sense in the room of a vice be it ever so characteristic and [...?] it [...?] without/. The property /virtue/ opposite to this self-evident incorribility is among the endowments /the endowment selected by/ /points of excellence and superiority with/ which Lord Mansfield chose for [...?] /chose for demonstrating the superiority of jurisprudential as compared to statute law/. "A Statute (says he) can seldom take in all cases. Therefore the common law (jurisprudential law) that [...?] itself pure by rules drawn from the fountain of justice, is for this reason superior to act of parliament." "From the period of this great judgement to the present time (continues his Lordship's biographer) the law has gone on continually working itself pure (to use Lord Mansfield's expression) by rules drawn from the fountain of justice".

That common law is [...?] enough /has need enough of being worked pure/ may be admitted without much difficulty: but where are its means of working itself pure? When rules of an absurd and mischievous complexion are one /have once been/ established by the /a set/ [...?] of Judges, not to speak of disposition, what means have their successors of ridding the law of those rules? None but by departing from the fundamental principle of stare decisis, and thus assuming to themselves the authority of legislators.

Another mistake consists in the speaking of judicature as having but one formal aim to draw its rules and decisions from, a fountain decorated for the purpose with the title of fountain of justice. The fact is, that throughout the whole field of jurisprudential law (as we have seen) judicature has two fountains to draw its rules and decisions from, two opposite fountains, the fountain of reason and the fountain of precedent, from either of which, on each occasion of doubt, the Judge draws his decision, according as he happens to be in a mood. It is from the mixture of these different streams that it is continually working itself muddy: and if ever and any where it is destined to be worked pure, it must be by the river Alphius turned into the channel by the hand of the legislator in the character of Hercules.