049-184.xml

Title: [1 August 1805 Evidence Ch.]

Description: 1 August 1805

Evidence

Ch. II. Vices

''. 6. Fixation in competency

On this occasion, to assist and fix [...?], an illustration or two will probably be /appear/ useful at least, if not indispensable. Though fixation is a task which can not be well executed in a proper manner by jurisprudential law, here as elsewhere the circumstances which debar all Judges from executing such a power will, that is in such a manner as to produce /to avoid producing/ uncertainty, has not debarred English Judges from the assumption and encrease of it. An instance /example/ or two where in this disadvantageous way, by such /those/ radically incompetent hands it has been assumed and exercise, will afford the illustration sought.

1. Demands in general: divestive fact, /event/ or circumstance, and antiquation: length of time elapsed between the moment of the investitive event by which the title to the thing or service is conferred on a man, and the moment of the judicial or extra-judicial demand made accordingly, judicially or extra-judicially by action at law or otherwise.

In reason and utility /On the principle of utility/ there is very clear reason for the establishment of lapse of time in this character for the giving this effect to lapse of time. After a certain time, the thing or service demanded, is adjudged accordingly to the demandant, would produce on the part of the defendant the sensation of a loss /pain of privation, the sort of pain attached to the idea of loss/: just as much as the loss of any thing else to the same value taken from him altogether without title. Why? because his expectation of non-continuance of enjoyment must in all that time have attached itself to the article in question, as firmly as to any thing else that he calls his. Here then on the side of the defendant, in case of the things being adjudged from him is a sensation of loss: On the other hand and owing to the influence of the correspondent circumstances, on the part of the defendant or him who were it not for the arrangement in question might have become demandant, and for the same reasons, though the thing shall not have been adjudged to him, no such pain, no such sensation will be felt.

049-183.xml

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

Description: 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/

JB_021_308.xml

Title: [1823. Feb. 23 Greece. J.B. to Greek Legislators]

Description: 1823. Feb. 23 Greece. J.B. to Greek Legislators Independence Division of power

Better? Yes: but why? Only because, and in so far as when a mass of power which

is thus independent of the people is thus divided, there is at all times a

chance of disagreement as between the possessors, and in so far as such

disagreement leads to /is productive of/ public discussion a certainty of a sort

of appeal on both parts to the people In this /in which/ case though the people

not being capable of acting in a body as the two contending parties are can not

make formal demands for themselves nor therefore obtain contracts as between

equal and equal, yet the two contending parties while contending or the

predominant one at the close of the contest, may feel or fancy itself under the

necessity of doing something even /though it were/ at its own expence for the

benefit of the people, or of the most influential part of it.

Thus it was that in the days of King John of England, the contest for power

between the King /Monarch/ and the Aristocracy terminated in that sort of paper

security so celebrated under the name of Magna Charta. At the close of this

contest as neither party could have contended with the other or could see any

prospect of contending with the other in future without the assistance that part

of the great mass of the people which were in the state of freedom as

contradistinguished from domestic or [...?] slavery: so the security such as it

was was extended to all such freedom. Now then taking the people in a body

consisting suppose of four millions it was better then that sort of security

whatever it was that was enjoyed /possessed/ as against depredation and

oppression at the hands of a single despot should be in possession of each one

of the number of two hundred thousand than that it should be confined to no more

than two hundred: and such /this/ was the utility of the division of power such

as it was that had place in that state of things compared with unity of power in

the hands of one single despot.