date

6 Dec r 1803 Evidence Exclusion
6 Dec r 1803

Evidence

Exclusion

2. Notoriety

'.1

 Confront this with Ch. Promulgation in B. Pre-appointed.

Ch. 2

' 3. Non-notoriety of the excluding law - its influence on the effects of the exclusion of evidence.

The influence of notoriety and non-notoriety upon the efficacy & utility of the body of the laws being here brought upon the carpet and a case brought to light in which the tendency of non notoriety presents itself in a beneficial point of view, to prevent collateral misconceptions on a point of universally extensive and primary /cardinal/ importance, a few elucidations may on this occasion be not altogether out of place.

In general terms, and with a reservation of all necessary exceptions, if it be asked, whether it be most for the advantage of a people that the acquaintance with the laws by which their fate is disposed of should be more or less exclusively diffused, the answer can be no other than this - the more extensively the better. To be acquainted, and that in the most perfect degree, with every law without exception by which his own interest is in any respect affected, is on the part of each individual a point of knowledge which considering in how /how absolutely/ high a degree his security and well being is concerned in his /depends upon his/ possessing it, it is on his account in the highest /a proportionable[?]/ degree desirable that he should possess: for /and/ in a word whatever degree of good can in any shape be expected to be produced by any imaginable law, it is only in proportion as the law is known that any such effect can flow from it.

In the character of a general maxim /proposition/, the proposition that it is in the highest degree desirable that the knowledge of the laws should be as widely diffused /near to universal/ as possible that every individual should have the most perfect acquaintance with every law by which his interest is in any way affected, is a proposition extremely obvious and not likely to be contested. The practicability o the state of things recommended by it will /may/ appear but too problematical /dubious/: the eligibility at any rate will naturally enough present itself as unquestionable.

To be inserted here or elsewhere.

What schoolmaster was ever so absurdly tyrannical, as to punish a boy for not doing a task that was never set him? A species of tyranny which would shock the feelings of the most [...?] /indifferent/ observer - which would strike him as an outrage to humanity and common sense, if exercised upon a single schoolboy - is exercised without ceasing upon a whole nation - what do I say? is exercised in a greater or less degree over every nation under the sun, /exercised without the smallest indication of [...?] higher upon earth/ by their rulers.
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  • Title: [8 Dec r 1803 Exclusion 2 Notoriety]
    Description: 8 Dec r 1803

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    By the non-notoriety of any article of law, be it what it may, the efficacy is proportionally destroyed. By the notoriety of any such pernicious whole of adjective law as is just described, the pernicious efficacy of this primary article of law should therefore be proportionally destroyed, and upon the aggregate of that branch of the law - the substantive branch in which the intrinsic importance of the whole body of law taken together creates and is conferred, the influence of this non-notoriety /event of notoriety/ should therefore be beneficial.

    But the beneficial influence of non-notoriety as applied to the body of the laws depends, as hath already been observed upon this: /contingency/ /condition/ viz:L that this one part of the body of the laws shall remain unknown, or less known which other parts are absolutely or comparatively known - diffused through the body of the people, on whose obedience /observance/ the efficacy of every law depends. But this is a condition which in the present instance, in the instance of the rules of exclusion above described, will be found to be in a very considerable degree verified /fulfilled/. Between the adjective /substantive/ branch of the law and the substantive /adjective/ there is in this respect a very marked line of distinction. Of the substantive branch some degree of knowledge is found /obtained/ generally by the body of the people, by each man more or less in respect of those particular parts in which he is particularly concerned /has lot and condition more particularly depends/. As no man can either offer obedience to the laws, or choose the benefit of them any further than as they are known to him, so far as this branch of the law is concerned, universal ruin /destruction/ would be the consequence of universal ignorance.
  • Title: [8 Dec r 1803 Evidence Exclusion]
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    These explanations being promised, it follows of course, that to look no further than the quality and tendency of the particular masses of law in question, in the present instance the masses /good parts of the mass/ of substantive law thus debilitated by a /the/ rule of adjective law attached to them, the less generally the existence of these debilitative appendages is known, the better.

    Nor on the other hand, can it be denied, that viewing the subject in the same limited point of view, where the substantive law is bad, the effect of the adjective excluding law being to impair the efficacy of this bad law, and the action of it depending upon /being inseparably connected/ its notoriety, the more generally it were known the better.

    But, in a more general view, against this particular /partial/ good, is to be set the more extensive evil resulting from the example set (as often as it transpires) by the opposition of the adjective law to the substantive; the breach of faith in respect of the engagements taken by the substantive law: to which must be added, where the substantive law is the work of the official /competent/ legislator, and the adjective law the work of his subordinate the Judge, self-created into a legislator, the breach of constitutional obedience /subjection/ on the part of the thus usurping subordinate.

    Upon /To speak[?] from/ the most extensive survey, so far as the law, meaning the substantive branch of the law, is good, the non-notoriety of it is a great misfortune; the non-notification of it consequently a great act of negligence. On the other hand so much of it is every where bad, that the non-notoriety of it is in a great variety of instances a benefit; though a partial and ever precarious benefit. But upon the whole, as the bad laws can /could/ not be kept in constant darkness while the good ones were exposed to constant view the non notoriety of the whole together constitutes a crying grievance. How far effectual and universal notification is practicable is a question too wide from the subject to be discussed here. One means of notification, and that of no inconsiderable extent as well as of partial efficacy, will come to be exhibited in the course of the ensuing book.
  • Title: [6 Dec r 1803 Evidence 2 Notoriety]
    Description: 6 Dec r 1803

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    the ca\ses in which it is then profited by bear a very small proportion ended to the cases in which [...?] fact /is facts/ of being profited by, in consequence of their almost perfect non-notoriety with reference to all sorts of persons, on the occasions in which an acquaintance with him would be sufficient to annihilate the influence of the good and necessary substantive laws /the effective power of which are thus [...?]/ of which are then preyed upon by those adjective /debilitative/ laws. Supposing them present on all occasions to the [...?] of evil disposed person of all classes, the body of mischief flowing from them would be too oppressive to be endured.

    So far as the body of laws, taken in the aggregate is good, the non-notoriety of them, it is evident in this part of the people is a most deplorable misfortune, and the not rendering /making/them on the part of government universally known, so far as such notification is practicable, an act of flagrant and equally deplorable negligence.

    As it is, laws of a pernicious complexion being in every country so unhappily abundant, the non-notoriety of the laws, good and bad together, operates in a proportionable degree in the character of a benefit. Thus it is that one abuse, one vast of pile of abuse, acts /operates/ in a certain degree in the character of a palliative to another abuse: as in medicine instances /examples/ are sometimes seen in which one disease acts in the character of a remedy to another disease.

    The great misfortune is that the bad laws, whether bad in themselves, or bad on account of their weakening other laws, can not this purpose be picked out from the good ones: + and therefore it is, that so long as the whole body of the laws in any country, taken in the aggregate has more of good than evil /less of evil than of good/ in it, the non-notoriety of it, also taken in the aggregate, will continue to be a most crying grievance. How far the effectual promulgation is practicable, and by what means, are questions of too extensive /too much/ import to find an answer here. With respect to the means of promulgation, an expedient of very extensive applicability will be brought to view in the course of the next succeeding book /ensuing pages/.

    + to select them push them out by authority for non-promulgation by authority - declare of this or that for that it shall not be known, would be a contradiction in terms. The abolition of them would be not only mere of eligible and effectual, but less impracticable.