date

9 Dec r 1803 Evidence Exclusion
9 Dec r 1803

Evidence

Exclusion

2 Notoriety

Nothing can be of greater practical importance, how little soever heeded hitherto, nothing more remote from the character of useless theoretic topic, than this of the influence of notoriety, the system of evidence-excluding rules, such as [...?] been exemplified /in practice will be seen to/ the rules the consideration of which is necessarily included in the compass of the present work /design/ - would of themselves be sufficient to cup up society by the roots /found compleatly incompatible /[...?]/ with the existence of society. In this narrow compass we shall find a set of laws of sufficient virtue utterly to destroy /[...?]/ the virtue of all the rest. The multitude In [...?] has been/ and variety of witnesses in whose presence men have /all sorts of men/ been bound to committ crimes - all sorts of crimes - have been so great that under such rules if known and conformed to, the difficulty malefactor would find himself under would be how to subject /[...?]/himself to punishment, rather than how to evade it. These laws have existed: and society has not been destroyed /annihilated/: why? because were not /have not been/ sufficiently known: to the great body of the people they have been as if they had never existed. What then? supposing [...?] universally known would society have been destroyed by them? Most certainly: but the supposition is an unentertainable one, because they would have needed but to be generally known to be presently abolished; Rashness and blind prejudice go great lengths, but not to that length.

Thus it is, that one abuse - one vast pile of abuse - acts in the character of a palliative to another /a still greater/ abuse: as in medicine, instances are sometimes seen, in which one disease acts /is employed/ in the character of a remedy to another disease.

As to promulgation - effectual notification - understand of such laws as will endure it - of such laws as are neither directly pernicious to society, nor indirectly by the destruction of such /the effect of/ as are necessary to it, how far the compleat effectual performance /[...?]/ /fulfilment of their duty/ of this operation is practicable is a question that has received some notice elsewhere, + and stands too wide of the mark to find an /any thing like a compleat/ answer here. With respect to the means, an expedient of very extensive applicability will come in of course, in the compass of the next succeeding book. ++

+ Leg. [...?...?]

++ B.V. Preappointed. Ch. Contractual
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  • Title: [6 Dec r 1803 Evidence 2 Notoriety]
    Description: 6 Dec r 1803

    Evidence

    2 Notoriety

    ''.3 Notoriety

    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.
  • 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
  • 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.