date

5[?] August 1805 Evidence Ch
5[?] August 1805

Evidence

Ch. II. Vices

''. 6. Fixation in competency

Ch. Vice 6th Incompetancy in respect of fixations of all sorts: liquidation of quantities, of number, weight, measure and degree: establishment of exceptions, conditions, limitations.

In relation of this important function the compleat competancy of Statute law the helpless inaptitude of jurisprudential law will, at the very first mention, be with more or less distinctness perciptible /visible/ to every eye. Take them at the best, and though the supposition be repugnant to the very essence of jurisprudential law suppose the rules of it to be given in tenor as well as purport, still for want of fixation, they hang and float as it were in the air. On each revision a scale of indefinite length has extended under them: they hover over it, but never touch it for want of a definite point to fix upon. Be number of degrees in the scale ever so great, no one degree can ever be found, on which the rule can alight with propriety, to the exclusion of those that are above it and below it. What is the consequence? that, independently of /over and above/ all others, this one defect is enough to banish certainty, which is as much as to say to banish justice from the dispensations of jurisprudential law, from an indefinitely extensive portion of the field of law./judicature/
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    The jurisprudential learning of larceny is a topic which in more occasions /instances/ than one there will be occasion /has been need/ to bring to view. Attachment imaginary or real, natural or fictitious, if the thing taken to the main body of the worth, tameness or wildness in the case of this or that species of animal, value in way of exchange more or less fixed and marketable, all these may serve as examples of fixation made by jurisprudential law under the auspices of Corruption or folly /caprice/ in the way of exception, condition or limitation taking the thief into the privation of the law, and putting the proprietor - or as lawyers used to say the true men as he is called out of it.

    In a word let him who will undertake to say which disposition is in jurisprudential law most conspicuous - the disposition to /.../ or the disposition to make /annex/ rash and groundless exceptions conditions and limitations, or the disposition to establish equally rash general rules within any of those exceptions, conditions and limitations which are /would be/ necessary to reduce them within the limits of utility and reason.
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    Length of the term which a person shall be enabled to acquire in an estate, by conveyance from a person or set of persons, who it is intended shall enjoy the value of it for their respective lives but without the power of alienating it in such instances as to deprive their respective receivers of the like advantage.

    Without a fixation of this sort, a general opulence and property could never have risen to any thing near the height which they have attained in England: the class of persons called farmers cultivating, each at his own profit and loss, and by means of stock of his own hands hired for a fixed term of the permanent proprietors, could not have come into existence. to derive substance from their property, all proprietors of lands, fit or unfit, must, by their own hands, or by those of hired servants, have been continually occupying themselves in the character of cultivators, been cultivators.

    To provide against the dangers are /at/ both sides /ends/ - to reconcile the antagonizing interests of the proprietor in use and the proprietor in expectancy, the English legislator, under the guidance of his Achetiphel counsellors, and accordingly with his usual shortsightedness, and thence with his usual slowness, was occasionally occupied for above 200 years. A Statute made in favour of the proprietor in use, and consequently giving enlargement in this way to his proprietory power, is spoken of under the name of an enabling statute: a statute made in favour of the proprietor or expectancy, and consequently limiting or reducing the above species of that power, is called a restraining statute.

    In the case of antiquation, we have seen jurisprudential law, notwithstanding its radical incompetence, undertaking the work of fixation, and accordingly doing it very badly, but nevertheless doing it. In the present case: viz. that of adjusting the antagonising interests of proprietor in use and proprietor in expectancy, so invincible was /is/ it incompetancy it has not so much as attempted to do any thing of itself. Taking up the work on the ground of Statute law, /Taking the work throughout from the hands of the legislator,/ the Judge has contented himself with tinkering it.
  • Title: [2 August 1805 Evidence Introd]
    Description: 2 August 1805

    Evidence

    Introd. Jurisprudent

    Ch. II. Vices

    ''. 6. Fixation incompetancy

    By the above examplifications /illustrations/ the incompetency of jurisprudential law to the purpose of fixation, to fixation in all manner of ways will perhaps be regarded as sufficiently demonstrated /proved/ as well as explained. In the same say may its incompetency be shewn in respect of all the other subject /other subjects/ of fixation: modes of quantity of other sorts, modes of quality, degrees (which have been defined /not inaptly defined/ quantities of quality: to which may be added species of things and exceptions, limitations and conditions to regulations of all sorts, whether obligatory or de-obligatory.

    To carry the demonstration through /over/ all these tracts, would be to traverse in all directions the whole field of jurisprudence, which is as much as to say the whole field of legislation. Such labour will not be expected to be performed for this /so/ limited a purpose as that of the present Essay.

    In cases in which profit and power are concerned, averseness to doing business is by no means a certain /a universal/ accompaniment of the incapacity of doing it well. Incompetent as Jurisprudential law /the jurisprudentialist/ is to the operation of applying exceptions conditions and limitations to general rules, no backwardness on his part as to the execution of this part /these branches/ of the task of fixation has ever been observerable in his practice. The principle of irrelevant decision is in every application of it, a system of exceptions, conditions.

    Take the whole learning of heresay and limitations (all these operations are materially reducable to each other) a system of exceptions, conditions and limitations arbitrarily applied to the general rule which requires in all cases the punctual fulfillment of the engagements taken by the substantive branch of the law.