6 May 1805
Evidence
Securities
Ch. Engl. Law Summary
''5. Bankrupt [...?]
N o 5. Procedure before Commissioners of Bankruptcy.
31 March 1805
Evidence
Securities
Ch. Engl. Law Summary
''6. Concluding Observat n
When in the hearing /presence/ of an English lawyer /a man of law/, any complaint is made of the expensiveness, vexatiousness and dilatoriness of the existing /established/ regular /technical/ mode, the only defense or possible apology he can employ /known to trust to/ consists in the assertion /notion/ or what is more impressive as well as easier, the tacit assumption, that the regular mode is good with reference to the direct the main end of justice in a proportion exceeding in a greater or less degree its imperfection with reference to those collateral ones. Summary justice is rendered better than none at all: but it is of an inferior quality, inferior in proportion to the low /inferior/ price put upon it. Those that can not afford to go to the price of the best sort must take up with the inferior sort: but regular justice is the sort of justice that would be sold on all occasions, sold to poor as well as rich if it could be afforded to them at that price /the price of summary/.
This only plea, will, in point of fact /I trust/, appear /be found/ already to be /have been/ pretty satisfactorily refuted: - that the technical mode /system/ is as decidedly repugnant to the direct, as it is to those collateral ends of justice: that the cheapest /cheap/ sort of justice is the only good one: and that it is the nature of the dear sort to grow worse in every respect in proportion to the dearness of the price.
11 Feb y 1805
Evidence
Securities
Ch. Engl. Summary
Concluding Observat.
That cases are not wanting, in which, for the variation /diversity/ in the mode of receiving and extracting evidence, that is for the substitution of the less trustworthy mode to the most trustworthy mode, there exists a reason - but too good a reason - but too cogent a necessity, is not to be devised /has already been acknowledged/. In England then, as well s in every other country, there exists a justifying cause of diversity, in relation to the force of these spheres of procedure /mode of receiving and extracting evidence/. Be it so: but if from this position /principle/ it were t be inferred /supposed/ that any the least shadow of a reason or apology /or pretence or excuse/ for the diversity by which /in the manner that has been/ the English system is confounded and deformed, the error would be great indeed. On the part of the most trustworthy mode, physical impracticability, preponderant inconvenience in respect of delay vexation and expence - these are the only causes which, in whatsoever country has the faction can operate so as to justify /serve/ /afford a sufficient cause for/ the sacrifice of the most trustworthy mode. But in English procedure in the cases where the most trustworthy mode is abandoned, physical impracticability has never been in question: and in respect preponderant inconvenience in point of delay, vexation and expence, this collateral mass of inconvenience, so far from being diminished, will in every instance be found to be augmented - in a most enormous and palpable degree augmented, by the sacrifice /this shameless sacrifice/. In respect of expence at any rate it may be said, with every [...?] part of truth that, the departures, wide and numerous as they are form the paths that lead to truth and justice have had for their final and but too efficient cause not the diminution but the aggravation of this cruel inconvenience.
31 March 1805
Evidence
Securities
Ch. Engl. Law Summary
Post of this to some other head To Procedure or Address to [...?]
It may occur as matter of surprize, as the score of indibility and, were as matter of objection, that the incompetency of the technical system, if thus compleat and radical as well as real, should in all that time /in the course of so many ages/ never been brought to view.
The surprize will be lessened at least if not removed - the objection removed altogether, if it be considered, that for the effectual execution /accomplishment/ of such a task an acquaintance /with the subject an acquaintance/ more than ordinarily minute and intimate was altogether necessary: that to penetrate the recesses of lawyercraft, no eye but that of a lawyer could have sufficed: that the labour of a whole life, if sufficient, was by no means more than sufficient for such a task: that when brought into competition with the ordinary objects of professional ambition /industry/, it presented on the one hand the /a/ increase of difficulty and labour, on the other hand a total abjuration[?] of every thing that to common [...?] is capable of entering into the composition of the matter of reward.
6 Dec r 1803
Evidence
Exclusion
2. Notoriety
'.1
Confront this with Ch. Promulgation in B. Pre-appointed.
Ch. 2
' 3. Non-notoriety of the excluding law - its influence on the effects of the exclusion of evidence.
The influence of notoriety and non-notoriety upon the efficacy & utility of the body of the laws being here brought upon the carpet and a case brought to light in which the tendency of non notoriety presents itself in a beneficial point of view, to prevent collateral misconceptions on a point of universally extensive and primary /cardinal/ importance, a few elucidations may on this occasion be not altogether out of place.
In general terms, and with a reservation of all necessary exceptions, if it be asked, whether it be most for the advantage of a people that the acquaintance with the laws by which their fate is disposed of should be more or less exclusively diffused, the answer can be no other than this - the more extensively the better. To be acquainted, and that in the most perfect degree, with every law without exception by which his own interest is in any respect affected, is on the part of each individual a point of knowledge which considering in how /how absolutely/ high a degree his security and well being is concerned in his /depends upon his/ possessing it, it is on his account in the highest /a proportionable[?]/ degree desirable that he should possess: for /and/ in a word whatever degree of good can in any shape be expected to be produced by any imaginable law, it is only in proportion as the law is known that any such effect can flow from it.
In the character of a general maxim /proposition/, the proposition that it is in the highest degree desirable that the knowledge of the laws should be as widely diffused /near to universal/ as possible that every individual should have the most perfect acquaintance with every law by which his interest is in any way affected, is a proposition extremely obvious and not likely to be contested. The practicability o the state of things recommended by it will /may/ appear but too problematical /dubious/: the eligibility at any rate will naturally enough present itself as unquestionable.
To be inserted here or elsewhere.
What schoolmaster was ever so absurdly tyrannical, as to punish a boy for not doing a task that was never set him? A species of tyranny which would shock the feelings of the most [...?] /indifferent/ observer - which would strike him as an outrage to humanity and common sense, if exercised upon a single schoolboy - is exercised without ceasing upon a whole nation - what do I say? is exercised in a greater or less degree over every nation under the sun, /exercised without the smallest indication of [...?] higher upon earth/ by their rulers.
6 Dec r 1803
Evidence
Exclusion
2 Notoriety
'.1
The exceptions, for such there are, are not so obvious but that the stating of them may be of considerable use, and through important lights on the whole body of the law.
Exception 1.
Case 1. The law a bad one: and say first a penal one /a penal law/. There are two descriptions of persons in whose instance /to whom/ it is desirable that it should be unknown. 1. All persons /Every person/ who might be disposed to call it into effect by prosecuting upon it /prosecutions grounded on it/. 2. All persons on whom it bears - all persons on whom it imposes coercion, all persons who exercise or wish to exercise the liberty which it seeks to take away: viz. in the instance of persons of this description so long and so long only as it remains unnoticed or what comes to the same thing, unemployed /uncalled forth into action/ by persons of the former class; viz: so long as provocation is not the consequence, real or apprehended, of the exercise of such liberty.
Exception 3
Case 2 d This law a bad one: a non-penal law. call it a distributive law. + and say now a law of the non-penal class: a law by which at the expense of a person of one description a right is enacted and conferred upon another. Descriptions of persons to whom it is desirable that it should remain unknown, the same mutatis mutandis, as above. 1. All persons /Every person/ who might be disposed to take advantage of the law, by claiming a right /at the hands of the Judge/ which could not be conferred upon them, but by imposing on some other person an obligation more onerous /burthensome/ than the right is advantageous. 2. All /Every/ persons burthened by the law, as above: viz: so long, and so long only as it remains unnoticed or unemployed by the persons favoured by it.
Exception 3 d
Case 3. Two laws: [...?] law; belonging to the substantive branch of the law, and that a good one: 2. a law belonging to the adjective branch of law; i: i: a law or rule of procedure; and that a bad one: the effect of it being, as often as it is applied, the destroying the effect of the abovementioned good law; the disfulfilling the prediction uttered by it - the violating the engagement taken by it: in the case of a penal law /of a penal law/, the giving [...?] to the mischievous act prohibited by it; the withdrawing the protection promised by it: and so mutatis mutandis in so far as the operation of the good substantive law in question is in favour of the defendant, and under punishment brought down upon him is the effect of the bad substantive law. so again mutatis mutandis on the part first of the plaintiff, and then of the defendant in the case where the good substantive law plays of the non penal or distributive class, as above described
+ a law, the function of which consists in the distribution of rights.
6 Dec r 1803
Evidence
Exclusion
2 Notoriety
Exception 3. Two laws: 1. A law say in the first place a penal law, and belonging /in that [...?]/ as above supposed to the substantive branch of the law /body of the laws/. 2. a law belonging to the adjective branch of the law: no other words, a law or rule of procedure: and this a bad one; the effect of it being, as often as it is applied, the destroying the effect of the abovementioned good law; the giving impunity and thence encouragement to the mischievous acts prohibited by it. by that means, the withholding /withdrawing/ the protection promised by it: the disfulfilling the predictions uttered by it. the violating the engagements taken by it. Here again there are two descriptions of persons to whom it is desirable that this bad /adjective/ law destructive pro tanto of the effect of the good substantive law should be unknown. 1. viz: persons whose situation exposes them to the temptation of becoming transgressors of the good substantive law: 2. so long /far/ and so long /far/ only, as the good substantive law remains untransgressed, then by whom so long as it escapes being transgressed to their prejudice the production afforded by it is enjoyed. If in the instance of any individual the substantive law comes to be transgressed, and the /[...?]/ mischief against which it was designed to afford him protection brought down upon the head, from thence-forward the state of the case in respect of the utility of information is reversed. The result was to be wished for on his account is - not that he should remain in ignorance of the bad adjective law by which the good substantive law was rendered of no use to him, but that he should be approved of it, that the mischief that has already befallen him may not be approved by the mischief of a useless appeal to justice.
Exception 4. Two laws, as before: a substantive /good/ law, but at present of the non-penal class; and a bad adjective law, as before; bad by defalcating from the efficacy of the good substantive law Two classes of persons, as before,e to whom it is desirable that the bad adjective law should remain unknown: 1. the persons in whose situation exposes them to the temptation of evading to submitt to the obligations correspondent and inseparably attached to the rights conferred by the good substantive law: 2. so far and so far only as the good substantive law remains unclouded, as above, then in whom the rights created by it are meant to be conferred. The description of them, mutatis mutandis, as above: varying only according to the variation in the nature of the substantive law.
[xxxviii. 176]
1822 June 18 Consult 1823 June 30
Economy etc
Ch Expository Matter
4 Powers of Government
1. Powers of Government are I. in functions
1. Operative what
2. Constitutive what.
2. II in rank.
1. Supreme, or
2. Subordinate
3. 1. In function again Supreme operative
1. Supreme Legislative.
2. Supreme Executive.
4. Supreme Legislative what? By its laws and ordinances in pursuit of its end imposes and takes off obligations on all persons, in relation to all persons and all things, places, and eventually all times, obligations not annullable or variable by other power in the state.
5. Supreme Executive, in so far as needful, is exercised in giving execution and effect to all Laws and ordinances of the Supreme Legislative.
6. In function again Supreme Executive, is
1. Supreme Administrative.
2. Supreme Judicial.
7. Supreme administrative what -
Applies to their destined uses such things and personal services as in pursuance of the above end, are placed at its special disposal for the service of the state at large by the Legislative power.
8. Supreme Administrative power - its Departments
I │ │ necessary
1. Interior Affairs.
2. Land Force.
3. Foreign Affairs.
4. Finance.
II Contingently necessary
5. Naval force.
6. Distant dependencies.
9. Supreme Judicial power, what -
Causes to be applied to all persons and things, Supreme Legislative Rules and ordinances; viz. by causing execution and effect to be given to Supreme Legislative's Laws and Ordinances as above, in case of │ │ manifested or apprehended: commonly at the suit of some party, regarding himself as prejudiced by such │ │
10. Legislative power - its exercise ordinary and extraordinary -
1. Ordinary, on persons at large.
2. Extraordinary, on Supreme Executive functionaries, Administrative or Judicial, in case of alledged failure of alledged duty on their part: viz. by dislocation, and if need be punition.
14 Apr. 1823 Superseded this by Constitut Code Ch. 1
[xxxviii. 206]
1822 June 18
Economy etc Rationale
Ch.6 Legislative
Legislators many - why
1. Supreme legislative why in many, not in one.
1. Inaptitude opposite to appropriate moral aptitude extreme and in the Supreme Constitutive no adequately prompt terminative remedy to it
2. In one, security for adequate attention none.
3. Published justification (say rationale) none.
4. All-comprehensive evidence of facts serving as grounds of operation, none.
5. Debates none, auditors, members of Public opinion Tribunal, none. Reports of debates none.
5. Inconvenience of Elector's attendance maximized, if voting were all at one place.
6. Perceptible effect of each Electors vote too small to pay for the trouble.
7. So great the importance of the office, and the power of the one functionary - contest violent enough to produce civil war.
8. Time in office, if long, would afford power enough to make it longer and longer, till it became for life: if short, Elections will be proportionably frequent.
9. No assurance of all comprehensive information of the particular interests of all districts, or equal supports given to each.
1821. June 19.
Codification Offer
S.7. Foreigner, why.
themselves to the workman could not fail to stick close to him, and attach themselves to the work: on the part of such members of the influential class on whom, but for the intrusion, the choice might, according to their view of the matter, have fallen; on the part of the members of the community at large, a general apprehension, a vague though perhaps not the less energetic apprehension — of inaptitude on his part, either in a moral, or in an intellectual shape, or in both.
Under these circumstances, nothing short of a strong and extensive persuasion that, in case of trial, his appropriate aptitude would, in all shapes, be found to stand the test of experience, could, it seems manifest, suffice to produce, in the case of a foreigner, either an invitation to undertake the works, or the acceptance of an offer on his part for the undertaking of it.
But, in this persuasion, would be include the persuasion of his appropriate aptitude — not only in all intellectual shapes, but in a moral shape: in a word, the persuasion that, by no reward that could be received by him, could he, if solicited, be induced to insert in his draught any proposed arrangement by which, if adopted, a sacrifice would be made of the universal interest to any particular and sinister interest.
2. Another circumstance that ought never to be let slip out of mind, is — the power, or rather the want of power, on the part of the draughtsman, more especially on the supposition of his being a foreigner, with relation to the ultimate effect of such his work. Be they in number, in extent, or in mischievousness ever so transcendent, only in the event of their receiving the force of law, can any improper arrangements proposed by him be productive of any mischief, with which it may happen to them to be pregnant. The more manifest it can not fail to be to himself, that every arrangement he proposes will be more narrowly watched than if proposed by a native, so much the less likely will he be to put his reputation to hazard by including in his draught any arrangements, for the support of which no such reasons as, in his eyes, are adequate have been attached.
A good arrangement is an arrangement in support of which adequate reasons can be given. If to this or that arrangement proposed by him, either no reasons at all, or none that appear adequate, have been attached, nothing can be more obvious, nor more likely to be adopted than the conclusion that
no