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21 Aug 1804
Procedure
Ch. Non-homologation
''. Utility where carefully
laid down laws
Some portions of the field of law are clearly and at all times out of the reach /domain/ of jurisprudential law: and on these grounds, the business if done at all must be done by statutory law, and therefore by the light of that principle - the principle of utility, which it is so natural and usual to statutory law and so unnatural or at least so unusual for jurisprudential law, to look to for its guidance.
One example is that of the law of finance. Amongst the incapacities /imperfections/ of jurisprudential law as already noted, is the incapacity of fixing quantities. But this is the chief and constant occupation of the law of finance, determining what sum of money shall be paid by this or that person individual or sort of person, upon this and that occasion. On this ground all the media of argument ever employed were employable by jurisprudential law would be absolutely at a fault. It may determine that in general the father shall bear the burthen of providing maintenance for his child: but in the case of insufficiency on the one part and sufficiency on the other, the child shall bear the burden of providing maintenance for the father: but as to the quantum of the provision in each instance, there is a point which no train of argument among the sorts of arguments at its command will ever enable it to reach. In each case it may declare that as a Judge in talking on the subject on /from/ the bench may declare in general terms, that according to such rule as he finds himself able to collect from the sources /his oracles/ of jurisprudential law - the precedents - the decisions - the dicta - the treaties that have come under his revision - what /the quantity which/ is sufficient and proper for the purpose is the quantity which the individual in question is as the case in question bound by law to provide. But in any given individual instance to determine how much a /per/ year, per month or per week shall be allotted to that purpose these are questions to which it is impossible that any thing he can have found in his /those/ oracles can apply itself: to settle the quantity, if not already settled by statutory law, is a task that on each individual occasion must be referred to some individual functionary to be appointed by somebody or other for that purpose.
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Title: [9 Sept. 1801 Polit. Economy]Description: 9 Sept. 1801 Polit. Economy Method Finance 112 12 I take therefore two per Cent as /for/ the rate of accumulation not as the true rate but for a rate which though considerably too high near enough to the true rate to answer the purpose of illustration. Taking then 20 per Cent as the gross value /ratio/ of the real income produced by that real capital to the real capital by the employment of which it is produced, this two per cent would constitute one tenth part of the gross income: and the part out of income added to capital every year is one tenth part of the whole mass of which the other nine parts are partly consumed for maintenance partly employ'd in keeping up the real capital in statu quo that is in a condition to give birth to the same quantity of real income in each subsequent as in each preceding year. The whole income then of an average individual may for this purpose be considered as divided into ten parts: of which nine parts go for /is in[?]/ present maintenance added to the expence of providing for reproduction without decrease or encrease, and the other tenth to positive encrease.
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Title: [10 Aug 1804 Procedure Ch. non]Description: 10 Aug 1804 Procedure Ch. non homologation Another source of uncertainty is yet to come /rumours yet for action/. The uncertainty hitherto spoken of is that which is attendant on the general rules to be distilled from a given mass of materials. The uncertainty now to be spoken of is that which respects the composition of the heap of materials from whence in each /any/ given case the general rule shall be distilled. The parts of which the body of /the laws when in the charge of [...?] law/ statutory law is composed, owe their existence in every instance to design and to design alone. Design, and design alone give birth (could it have been imagined that the remark should have been worth making?) to the /[...?] added parts of statutory law the body of the law where/ elements of which law in the form of statutory law is composed: the appearance of the materials from which jurisprudential law is drawn - the very existence of them in any plan and form in which any such use can by possibility be made of them, is altogether the work of chance. [...?] or [...?] attend a Court of justice, takes notes, and dies. Along with this lumber his notes pass into the hands of a Bookseller. If /Does/ the Bookseller offer a price worth accepting? The notes are published and become Reports: if not, they so /are conveyed/ to the Chandler's shop, and form covers for butter or containers for salt. Note The Ostrich (say the according to antient naturalists) is the most stupid of birds: she drops her eggs, but leaves it to Chance to bring /give/ them into life. The ostrich would be the type and emblem of the legislator, who suffering the work to be taken out of his hands by manufacturers of jurisprudential law, sits still and leaves it to Chance to determine from what material it should be made. It is or rather would be: if in the official establishment of England any such character as a legislator - a person responsible for the state of the law on any ground but that of finance were to be found.
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Title: [Procedure 5 July 1804 Ch. Non]Description: Procedure 5 July 1804 Ch. Non-homologation ''.3 Import uncertain ''.3-2. Import uncertain 2. In the next place, from the indeterminateness of the words of which any given mass of the matter of jurisprudential law is composed, follows by necessary consequence the uncertainty of the import. Compare it in this respect with its [...?] and rival. Obscurity, ambiguity, and delusiveness are imperfections to which law in the form of statutory law is but too liable: for statutory law is but a species of human discourse, applying itself to that particular subject, and the above are imperfections to which all human discourse is liable. But in statutory law these are but individual and casual imperfections, imperfections capable of being lessened, and actually lessening every day, as the human mind advances in practice, and in that strength which is increased in practice. In /To/ jurisprudential law on the other hand they are essential, and (as will be seen more particularly under another head) incurable: the portion of them which results from our ill-adopted choice words bearing in proportion to that which arises from the absolute want of determinate words. The words of which the matte of jurisprudential is composed, those words indeterminate as they are, are still words: and to the several imperfections above-mentioned these words whatever they are, are still in no less a degree, but as will be seen in the much greater degree liable, than those determinate words of which the statutory law is composed. To all the imperfections, and those curable ones to which statutory law is exposed, all which it is loaded with and in a much higher degree jurisprudential law add its own essential, peculiar, and incurable ones.
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