date

21 August 1804 Procedure Note
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.
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  • 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."
  • Title: [21 August 1804 Procedure Ch]
    Description: 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.?
  • Title: [[part in copyist’s hand] 18 June 1811]
    Description: [part in copyist’s hand]

    18 June 1811

    Parl. Reform

    Fallacies[?]

    Abdication

    […?] no viz[?] […?]

    What I do not mean is by any of these cases[?] has now a perfection[?] to call upon L d Ellenborough be a Quo Warranto to imply be of […?].

    Blackstone’s Commentaries Book I, Ch.18. Of Persons, p.473.

    “A Corporation may be dissolved .... 3. By surrender of the franchises into the hands of the King, which is a kind of suicide; 4. By forfeiture of its Charter, through negligence or abuse of its franchises; in which case the law judges that the body politic has broken, the condition upon which it were incorporated, and thereupon the incorporation is void. And the regular course is to bring anent[?] information in the nature of a writ of Quo Warranto to enquire by what warrant the Members now exercise their corporate power, having forfeited it by such and such proceedings.”

    Blackstone’s Commentaries Book II, Ch. 10.

    Estates upon Condition.

    “Estates upon condition imputed in law, are where a grant of an estate has a condition annexed to it inseparably, from its essence and constitution, although no condition be expressed in words. As if a grant be made to a man of an office, generally without adding other words; the law tacitly annexes hereto a secret condition, that the grantee shall duly execute his office (b), on breach of which condition it is lawful for the grantor or his heirs, to oust him, and grant it to another person c. For an Office, either public or private, may be forfeited by mis-user or non-user; both of which are breaches of this implied condition. 1. By mis-user, or abuse; as if a judge takes a bribe, or a park-keeper kills deer without authority; 2. By non-user or neglect; which in public offices, that concern the administration of justice or the commonwealth, is of itself a direct and immediate cause of forfeiture: but non-user of a private office is no cause of forfeiture, unless some special damage is proved to be occasioned thereby. d

    For in the one /that/ case delay must necessarily be occasioned in the affairs of the public, which require a constant attention, but private office not requiring so regular and unremitted a service, the temporary neglect of them is not necessarily productive of mischief; upon which account some special loss must be proved, in order to vacate these.”

    (b) Lett §.378

    c Lett. §.379

    d Co. Lett. 233

    [Marginal entries:]

    Words of the Scotch Convention as per Hume VIII 309

    That King James, by his mal-administration and his abuse of power had forfeited all title to the Crown “... they” accordingly “made a tender of the royal dignity to the Power of Kings[?]”

    Words of the Two English Houses of Parliament p310.

    That King James 2. having endeavoured to controul[?] the constitution of the kingdom, by breaking the original contract between King and People; and having, by the advice of Jesuits and other wicked persons, violated the fundamental laws, and withdrawn himself out of the Kingdom, has abdicated the Government, and that the throne is thereby vacant.

    Amendment given up by the Lords For abdicated - deserted.