date

8 Dec r 1803 Evidence Exclusion
8 Dec r 1803

Evidence

Exclusion

2 Notoriety

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.
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  • Title: [8 Dec r 1803 Exclusion 2 Notoriety]
    Description: 8 Dec r 1803

    Exclusion

    2 Notoriety

    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]
    Description: 8 Dec r 1803

    Evidence

    Exclusion

    2 Notoriety

    The particular article /division/ of law which is the subject of the personal inquiry is a set of rules of evidence - a branch of adjective law applying to the whole system of substantive law and taking the whole together weakening the operative force of it. An indisputable matter of fact is - that the existence of this debilitative appendage of /to/ the whole mass of substantive law is in its details and in great measure incapable of being made known compleatly unknown, to the great body of the people. The question is what is the influence of this non-notoriety upon the efficacy of these rules of exclusion, in respect of the debilitation notion /influence/ which it is the nature of them to exercise upon the aggregate mass of the substantive branch of the law? and thence how far is it /is the state of things produced by it/ a desirable, how far an undesirable result?

    In the aggregate mass of substantive law, the good, in every country it has already been observed) infinitely outweighs the bad. In every case the effect of which is to introduce a general debility /destroy the efficacy or any part of the efficacy/ of this salutary and necessary system into all its parts, good and bad without distinction, the action /operation/ can not therefore but be pernicious upon the whole. A rule of law by which a lot of evidence - the evidence of every individual of this or that description, is excluded as often as it becomes necessary for the giving effect to this or that article of substantive law is pro tanto destructive of the efficacy of such article of substantive law, and so of every such article whatsoever. Upon the whole A rule of law of this description can not therefore but be pernicious, upon the whole. /and that in a very high degree/.
  • Title: [[059-[not marked]] 6 Dec r 1803]
    Description: [059-[not marked]]

    6 Dec r 1803

    Evidence

    Note[?]

    Exclusion

    in general

    ''.3 Notoriety

    In proportion as the /one/ substantive law is good, the adjective /another law/ by which the effect of it is defeated can not but be a bad one. But the only by a person to whom it is known, /and therefore in proportion as it is known,/ that a law, good or bad, can be called forth into active or in any other way [...?] by. So far as it remains unknown, so far it remains without effect. In this way it is, that so far as a substantive law is good, the non-notoriety of an adjective law by which if known and profited by the effect of the good substantive law would be destroyed, is a desirable and beneficial incident. On the other hand, in the case of a bad substantive law, it would seem that the non-notoriety of an adjective law by which the effect of it would as often as the adjective law were called into action be destroyed, should by purity of reasoning be a desirable /non undesirable/ /good/ and and [...?] incident. And so it would, supposing it realized. But this /that is a supposition which is scarce now verified/ is a case which scarce ever happens. to apply to use the law of procedure is the function of professional men whose daily occupation renders them constantly conversant with every branch of law, and that among the part. - a branch which for want of such peculiar opportunity /incitement/ is almost [...?] uncommon to every other class of men.

    As to the law in general, meaning the whole body of the laws, taken in the aggregate, it is not only good, but so good and so indispensably good, that if in every community it was /were/ abolished, and no other introduced in the room of it, society would be abolished along with it and this not only in the case of the best system of established laws known, but in that of the worst. It will be seen as we advance, that under the best [...?] governments known the cases /rules/ of exclusion are so numerous and extensive, that the mischief that would result from their of universally known and perfected by, would cut out a most enormous share of the official power of the protective laws. Even as it is, the mischief done by them is prodigiously great: because so often as the case + is brought under the view of a professional man, so often [...?...?]. But the

    + a case in which exclusion is put upon evidence