date

21 August 1804 Procedure Ch
21 August 1804

Procedure

Ch. Non-homologation

By this distinction as may be enabled to view with the less surprise a phenomenon which otherwise might have presented itself as being inconceivable. In this comment /a passage/ on Judge Littleton's treatise on [...?], on property in land, Maltese Chief Justice Coke undertakes to give an examination of all the several sources of argument which Littleton had ever drawn upon in the course of that book. The members of this is 20 and of those 20 three and three alone present the appearance of being any the slightest reformer to the dictates of original and appropriate utility. Under the several heads /each heading of argument/ reformers are given to the purpose in which the correspondent species of argument is employed. Under the head of argumentation ab in convannte[?] ten examples are referred to: under head of argumentation ab utile vil [...?] only: under the head of argumentation a fine, two /four/. (''. 48. 194. 273. 578.) Label 15.

In many not to say most in all of these instances the purpose referred to is so much nonsense, not presenting any the slightest glance of any thing like pleasure or pain advantage or inconvenience. But supposing them all so many exemplifications of deference pined[?] to the [...?] dictates of utility, what would these passages amount to in comparison of the hundreds of passages in which not the remotest reference /view/ to utility - to the happiness /welfare/ of the community - is so much as supposed /suspected/ to have been made: suppose even by the avowed panigyrest or rather [...?] of the mass of law in question, and of the sage who is made [...?] if as the chief among the [...?] of his time.?
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  • Title: [21 August 1804 Procedure Note]
    Description: 21 August 1804

    Procedure

    Note Coke

    Ch. Non-homologation

    To warrant the enumeration and classification thus given of the functions of the Common Law as drawn from by his Sage, he has taken the trouble to give us references to the sections in which they are reputively exemplified. On [...?] to these examples, it appears /[...?]/ that the words that carry the appearance of pointing to the principle of utility as a guide to judicature, are mere stark [...?] words without a meaning.

    1. The example of his argumentation ab [...?] is as follows: it is taken /presented by/ '' D 87 when the purpose who does homage to his feudal lord for an estate is a male he is to pronounce a form of words beginning with I become your man (votre homme) but when the person by whose the like concerning is performed is a woman she is not to say I become your woman (votre femme) because it is not convenient that she should use the word femme (which in French signifies wife as well as woman) in addressing herself to a man who is not her husband.

    2. For an example of the argumentation ab inutile /which it/ are referred to D 360. The purpose of this section is to inform us that if a man, in the conveyance of an estate by fulfilment, annexes to it a condition, forbidding the [...?] to whom to any body else, this condition is void, void? for what reason? - however because it is so: "because (says Littleton) when a man is [...?] of lands and tenements he hath power to abandon them to any person by the law.

    Likewise[?] the example of the pretended argument from utility neither is any such word understood, nor is there /does the purpose/ any the smallest /more distant/ allusion to the consequences of the regulation in question in relation to human happiness.
  • Title: [20 Aug 1804 Procedure Introd]
    Description: 20 Aug 1804

    Procedure

    Introd. Jurisprudents B [...?]

    Ch. 2.5. Arts Utility

    The dictates of utility immediate and approximate utility - can never be excluded altogether.

    At first the principle of utility, well or ill applied or at any rate some caprice /if the imagination, or some sport of passion/ that presented itself under the garb of utility, must have been the only guide. Decisions must have been pronounced /pronounced in considerable abundance -/ and not only pronounced but committed to writing and preserved before the rule stare decisis could have so much as had matter to operate upon: consequently long before it could have been generally recognized and acted upon - framed and acted upon as a rule.

    But at not time, let the rule stare decisis have fixed itself upon ever so firm a footing, can the influence of the principle of utility be /have been/ superseded altogether. It will be referred to /appealed to/ in two cases. 1. Where prior decision, with or without the dicta, direct or collateral, of Judges are regarded as altogether wanting: 2. where the authority of decisions, including or not including that of dicta, is looked upon as equally distributed on both sides. In both these cases, the alleged dictates of utility - the consequences /influence/ of the proposed decision with regard to human happiness will naturally be endeavoured to be called in /thrown into the scale/, were it only in the character of a make-weight.
  • Title: [21 August 1804. Procedure Note]
    Description: 21 August 1804.

    Procedure

    Note Coke

    Ch. non-homologation

    Should any one, reading the passage at this time of day[?] stand up and say /observe/ - they but restraints upon alienation are really contrary to the principle of utility pregnant with pernicious public consequences - I answer it /the answer/ may be so: but no such consequences are here alluded to. Neither in Littleton's term was the law in its definitions /were lawyers in their decisions/ in this behalf guided by the contemplation of these consequences. For a conveyance in fee tail were just as lawful as a conveyance in fee simple, and of an estate in fee tail the characteristic property was that the owner could not alienate. At present he can, by converting it into a fee simple: viz; by the species of judicial fraud called a Common Recovery: but in Littleton's time that fraud had not as yet got into use.

    Therefore we see nothing but bad logic /the logic of a simpleton/: a proposition given in other words in the character of a reason for itself. But Littleton goes on, and he gives us no [...?], through from mere wrongheadedness, a notorious /palpable/ untruth. "For" (says he) if such a condition should be good, then the condition should omit him of all the power which the law gives him, which should be against reason, and therefore such a condition is void. Thus far Littleton. This power of using a thing is one power: the power of transferring /alienating/ it is another. So bland is the sage that the first named of these powers is overlooked by him, though the most obvious as well as the most valuable. As to the reason of the use of the case, in the case of the species of estate, above already mentioned, and herald of by Littleton himself - an Estate in fee tail, it is of the species of the estate to include such a condition and in point of fact such condition whether against or not against reason neither is now, nor in Littleton's time was, used. The tenant of an Estate in fee tail, this omitted by that same condition of so much of the power which the law permits to be given, was he omitted of " all the power which the law gives him."