8 July 1804

Procedure and Evidence

Evil causes 4th order

5. Anti-merits substantive law

 This not in evidence ----- within procedure

In popular language /in common speech/ grounds of decision foreign to the merits are characterized by the words quirk and quibble.

Technical - a word of Grecian origin, is exactly synonymous to artificial. In the present instance this epithet is applied with disputable propriety. A technical reason is a sort of an argument which would not have presented itself in the character of a reason to any eye but that of a professional lawyer. An argument /a -----/ the use /origin/ of which in that character is exclusively to be looked for in the prejudices and sinister interests and artifices of the profession.

Accordingly in the whole list of fictitious /technical/ reasons or modes of ----- to which this ------ is capable of being affixed not a single article will ever be found that will not, when compared to the standard of utility be found absurd and mischievous: absurd /absurd currently/ in its notion, mischievous /mischievous , finally/ in its consequences.

In the adjective branch, the nature of these grounds is considerably different from what it is in the substantive.

In the substantive branch it consists throughout in giving to/affixing to /fixing upon/ some word or phrase in common use a sense /some signification/ or other which at the time in question had never been given to it by any man who was not a lawyer: or in annexing to some rule founded on obvious utility, an exception that not being grounded on utility would never have occurred /been presented/ to any human mind by considerations originating in that source.

Take for example /take an example/. By a general rule of law (jurisprudencial law) --- such as in common acceptance are understood to be composed(?) under the name of theft, are understood to have been made the subject of a prohibition (a virtual prohibition) and that prohibition backed by a certain mode or modes of punishment.

When another man would say theft, a lawyer says larceny; and in virtue of an exception grounded on a phantasm of the imagination expressed by some such words as these with whatever savours of reality, theft, when committed on any one of a great variety of things placed in the circumstances alluded to by those words, is understood not to be larceny nor therefore punishable as such.