PRIVATE

5 June 1807

Letter V

Litigation - Prevent Promot.

Letter V

II. Litigation

I. Arrangements of the legislator for preventing wrongs commissible through ignorance - sources of bonâ fide suits.

General description of the principal efficient cause or instruments establishing certainty on the part of the law: viz. in respect of the rights with their correspondent obligations created, or at the will of parties made creatable: hence in regard to the wrongs, whereby the correspondent obligations are disfulfilled and violated.

Uncertainty[?]

I. Arrangements that are or ought to be employed by the legislator for the prevention of it.

I. Arrangements respecting the form.

1. Putting the rule of action into the state of statutory, i.e. real and genuine law.

2. So long as in any part it continues in the state of jurisprudential law, giving to the materials serving as grounds of conjecture, and in particular to judicial decisions, with their grounds and reasons, the only species of materials susceptible of encrease, the most extensive and effectual degree of publicity possible.

3. Putting the rule of action into the highest possible state of cognoscibility possible, by separating from that portion of it in which individuals of all classes and descriptions are alike concerned, those portions in each of which two or some other small number of classes are concerned - to the end that each individual may have within his reach and within his grasp that portion in which he himself is concerned, without feeling any part of that with which he is not concerned lying as a burthen upon his attention, his memory or his purse.

4. Choosing for the terms or language of the law expressions throughout as familiar and at the same time as precise, as certain in their signification as possible: composed, as far as possible of words in ordinary use: terms not in ordinary use employed as sparingly as possible; and then never without explanations (given once for all, with subsequent references) explanations composed of words in ordinary use. The import of the leading terms, where uncertain by reason of ambiguity, cleared by requisite fixations; or where, by reason of generality, particularized by appropriate specifications.

5. Devices of Judge and C o for promoting wrongs committed through ignorance, sources of bonâ fide suits.

General description of the principal device or instrument. Fostering uncertainty on the part of the law: i.e. in regard to rights and their correspondent obligations -hence in regard to the wrongs whereby the correspondent obligations are violated.

Uncertainty:

I. Principal devices or contrivances employed by Judge and C o for the promotion of it.

I. Devices respecting the form.

1. Keeping the rule of action in the state of jurisprudential {to the exclusion} of statutory law conjectural, imaginary, sham, spurious, to the exclusion of real and genuine law. See Letter I. Devices: N os 18 & 19.

2. Keeping the materials of jurisprudential law - the materials of conjecture, (decisions in particular with their reasons) in a state of incognoscibility as compleat as possible.

3. Keeping them in the highest possible state of unintelligibility, through the medium of fiction, and jargon in all its shapes (See Lett. 3. Device the │ │).

4. Keeping in the highest possible state of confusion whatever part of the rule of action can not have been kept out of the state of statutory law.

Note

( ) To this head belong the irresistible and therefore but too successful and recent exertions made by the Court of Session, or at least by certain of its Judges, to put a stop to the publication of the grounds and reasons of the decision as exhibited by the speeches of the respective Judges, in addition to the decisions themselves, of which a scanty and tardy selection is supposed to be published: an incident of which will be taken ulterior notice in another place.

Also the recently discontinued exertions of English Judges to the same end.