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6 Dec r 1803
Evidence
Exclusion
2 Notoriety
'.1
The exceptions, for such there are, are not so obvious but that the stating of them may be of considerable use, and through important lights on the whole body of the law.
Exception 1.
Case 1. The law a bad one: and say first a penal one /a penal law/. There are two descriptions of persons in whose instance /to whom/ it is desirable that it should be unknown. 1. All persons /Every person/ who might be disposed to call it into effect by prosecuting upon it /prosecutions grounded on it/. 2. All persons on whom it bears - all persons on whom it imposes coercion, all persons who exercise or wish to exercise the liberty which it seeks to take away: viz. in the instance of persons of this description so long and so long only as it remains unnoticed or what comes to the same thing, unemployed /uncalled forth into action/ by persons of the former class; viz: so long as provocation is not the consequence, real or apprehended, of the exercise of such liberty.
Exception 3
Case 2 d This law a bad one: a non-penal law. call it a distributive law. + and say now a law of the non-penal class: a law by which at the expense of a person of one description a right is enacted and conferred upon another. Descriptions of persons to whom it is desirable that it should remain unknown, the same mutatis mutandis, as above. 1. All persons /Every person/ who might be disposed to take advantage of the law, by claiming a right /at the hands of the Judge/ which could not be conferred upon them, but by imposing on some other person an obligation more onerous /burthensome/ than the right is advantageous. 2. All /Every/ persons burthened by the law, as above: viz: so long, and so long only as it remains unnoticed or unemployed by the persons favoured by it.
Exception 3 d
Case 3. Two laws: [...?] law; belonging to the substantive branch of the law, and that a good one: 2. a law belonging to the adjective branch of law; i: i: a law or rule of procedure; and that a bad one: the effect of it being, as often as it is applied, the destroying the effect of the abovementioned good law; the disfulfilling the prediction uttered by it - the violating the engagement taken by it: in the case of a penal law /of a penal law/, the giving [...?] to the mischievous act prohibited by it; the withdrawing the protection promised by it: and so mutatis mutandis in so far as the operation of the good substantive law in question is in favour of the defendant, and under punishment brought down upon him is the effect of the bad substantive law. so again mutatis mutandis on the part first of the plaintiff, and then of the defendant in the case where the good substantive law plays of the non penal or distributive class, as above described
+ a law, the function of which consists in the distribution of rights.
Similar Items
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Title: [6 Dec r 1803 Evidence Exclusion]Description: 6 Dec r 1803 Evidence Exclusion 2 Notoriety Exception 3. Two laws: 1. A law say in the first place a penal law, and belonging /in that [...?]/ as above supposed to the substantive branch of the law /body of the laws/. 2. a law belonging to the adjective branch of the law: no other words, a law or rule of procedure: and this a bad one; the effect of it being, as often as it is applied, the destroying the effect of the abovementioned good law; the giving impunity and thence encouragement to the mischievous acts prohibited by it. by that means, the withholding /withdrawing/ the protection promised by it: the disfulfilling the predictions uttered by it. the violating the engagements taken by it. Here again there are two descriptions of persons to whom it is desirable that this bad /adjective/ law destructive pro tanto of the effect of the good substantive law should be unknown. 1. viz: persons whose situation exposes them to the temptation of becoming transgressors of the good substantive law: 2. so long /far/ and so long /far/ only, as the good substantive law remains untransgressed, then by whom so long as it escapes being transgressed to their prejudice the production afforded by it is enjoyed. If in the instance of any individual the substantive law comes to be transgressed, and the /[...?]/ mischief against which it was designed to afford him protection brought down upon the head, from thence-forward the state of the case in respect of the utility of information is reversed. The result was to be wished for on his account is - not that he should remain in ignorance of the bad adjective law by which the good substantive law was rendered of no use to him, but that he should be approved of it, that the mischief that has already befallen him may not be approved by the mischief of a useless appeal to justice. Exception 4. Two laws, as before: a substantive /good/ law, but at present of the non-penal class; and a bad adjective law, as before; bad by defalcating from the efficacy of the good substantive law Two classes of persons, as before,e to whom it is desirable that the bad adjective law should remain unknown: 1. the persons in whose situation exposes them to the temptation of evading to submitt to the obligations correspondent and inseparably attached to the rights conferred by the good substantive law: 2. so far and so far only as the good substantive law remains unclouded, as above, then in whom the rights created by it are meant to be conferred. The description of them, mutatis mutandis, as above: varying only according to the variation in the nature of the substantive law.
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Title: [2 April 1804 Evidence Forthcomingness]Description: 2 April 1804 Evidence Forthcomingness Ch.4. Misprision extent conceivable Ch. 4. Means continued - Obligation, of informing without previous summons. §.4. Compulsion by pre-established obligation: viz: obligation of furnishing evidence spontaneously, i.e. without summons to that effect. §.1. Conceivable extent of the obligation. One way of obtaining discovery of evidence, is by means of a pre-established law of general obligation, obliging persons in general, or persons of particular descriptions, to give information, to take the local Judge /Judge ad hoc/, or other official person appointed for the purpose, of matters of fact of the description in question - capable of serving as evidence in the species of cause in question, and this without waiting for any address general or special, specifying the particular purpose - i.e. the particular /individual/ cause or suit for which such information is required. A law or obligation of this sort /By a law to this effect/ a class of negative offences would be created, the ramifications of which would be capable of being extended over every division of the substantive law non-penal branch as well as penal included. It is in its application to the penal branch that the nature of such an obligation will be most readily and clearly apprehended. In a former work mention has been made of the class of offences termed negative offences: a class so /capable of/ compleatly pervading the whole system of penal law, that for every different species of positive offence, a correspondent species of negative offence might be incurred: the positive offence consisting as the production of the sort of mischief in question; the negative in the seeing it about to take place, without using any endeavours to prevent it. A negative offence of this class might be termed one species of Non-prevention. Parallel to and co-extensive with that division of negative offences, may be added the other division here in question. An offence belonging to this division consists in the not giving /forbearing to give/ information of or concerning all /any/ offence belonging to the list of positive offences. It may be termed an offence of Non-delation. But in like manner a basis for a correspondent modification of the offence of non-delation may be afforded by each [...?] of the negative offence of non-prevention.
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Title: [4 July 1812 Evidence Introd]Description: 4 July 1812 Evidence Introd Introd Ch. 23. Technically appropriate '.1. Be this as it may, throughout the whole extent of this field, in every case, some /one/ individual fact at least, it will be seen, is considered as proved: say for example on the plaintiff's side: and then the question is - whether, as the law stands, or is supposed to stand, he should be considered as entitled to the service which he is claiming at the hands of the Judge. Stands so, mutatis mutandis if it be on the defendant's side.
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