Footnote #08
Temerity vs. Consciousness of Blame
The distinction between temerity and consciousness of blame, a distinction pervading human nature, and applicable to every species of misbehaviour, is scarce so much as known to the English law. There are scarce words for it in the language. Temerity is taken from the Roman law. Malice, the term by which English lawyers seem in some instances to have had in view the expressing consciousness of blame, presents a wrong idea, since in common language it implies hatred, an affection which in many instances of conscious guilt, may be altogether wanting:---instance, offences of mere rapacity, such as theft, robbery, and homicide for lucre.
The legislator?---he talk of vexation?---He does everything to create the evil, he does nothing to remove it.
I happened once to fall into conversation with man, who, from an attorney had been made judge of one of the provinces in America. Justice, I understood from him, was on a very bad footing there: it might be had almost or nothing; the people were very litigious: he found them very troublesome. A summons cost---I forget whether it was three-and-sixpence or half a crown. Whom the half-crown went to I do not know: one maybe pretty certain not to the judge,---Seeing no prospect or our agreeing, I did not push the conversation far. The half-crown seemed to him too little: to me it seemed all too much. The pleasant thing would have been to have enjoyed the salary in peace and quietness, without being plagued with a parcel of low people. Justice would then have been upon the best footing possible. He had accordingly a project for checking litigation by raising the fees. I don't know whether it succeeded.