059-091.xml

Title: [8 Dec r 1803 Evidence Exclusion]

Description: 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.

059-098.xml

Title: [9 Dec r 1803 Evidence Exclusion]

Description: 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

059-099a.xml

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