2 August 1805

Evidence

Introd. Jurisprud.

Ch. II. Vices

''. 6. Fixation in competency

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.