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.