3 June 1807

Letter V

Litigation Prevent. Promot.

II. Litigation

I. Arrangements respecting the matter or substance.

5. 1. In the pruning of the law care taken by the requisite specifications to supersede as far as possible all necessity of conjecture; and where that can not be done, to afford every facility to that necessary task. For this purpose amongst others, taking care to lay open to view the reasons i.e. the indications of utility which in the will and understanding of the legislator give birth in each instance to the provision made by the law:- for, the people, taking for granted, as of course than in each instance, it was the view of the greatest possible public good that gave birth to the disposition of law will see no course so obvious for discovering the import of the law, as the discovery of the public good expected to be produced by it.

6. 2. Ex. gr. In regard to Contracts, including testaments and other conveyances, laying down for the general rule - that contracts in general are adopted and made obligatory by the law: viz. on the ground that man necessarily and perpetually engaged in the pursuit of his own interest will not in general make any promise or do any other act, that is contrary to it: attaching to this general rule no exceptions, without special reason, in each case assignable and assigned each serving to rebut in respect of utility the presumption operating in support of the general rule: for example, force and fraud, under their various specifications and applications.

7. 3. To prevent on the part of the Judge licentious interpretation, prescribing regular and prompt returns to be made of the several clauses in the body of the law, which within a determinate space of time, have in the several judicatories been subjects of dispute: together with the interpretation given to them in each case: to the end that, if any fault appear in the decision, the decision may be amended, if in law, the law.

II. Devices respecting the matter or substance

5. Seat of the uncertainty the substantive part, i.e. the main body, of the law.

5. 1. To prevent that part of the rule of action which has been preserved in the state of conjectural law from being reached and anticipated by rational conjecture, rendering it throughout as irrational and absurd as possible.

6. 2. Ex. gr. In regard to contracts (including Testaments and other Conveyance) viz. Contracts the execution of which would not be productive of assignable mischief to a preponderant amount, attaching to the general rule according to which they are adopted by the legislator and receive from him the force of law, as many groundless, irrational and thence unconjecturable exceptions as may be devised.

7 .3. In regard to such portion of the rule of action as could not be kept out of the state of real law, doing whatsoever can be done towards rendering it uncognoscible by interpretations called constructions, the more irrational and thence unconjecturable, the better.

Example. In regard to costs, where by the legislator 2 is directed to be given, giving 1½; where 3, 1¾.