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24 June 1805
Evidence
Introd
Ch. Non-Notoriety &c
''.1. Connection
Again. Though the same mischief may ensue from the want of knowledge /notoriety/ in may ensue for the want of certainty - the same mischief viz: suffering and that unexpected, from the hand of the man of law. Yet they are not only distinguishable in idea, but separable in existence, and to such a degree separable, that either of them may exist without the other.
Of a law to a certain effect the existence may at any given time have been unknown to me. But as was the case but now in regard to the law imposing a duty upon windows, the existence of it once made known to me, and thence the tenor of it, the tenor may have been perfectly intelligible to me, and the impost /prospect/ of it as certain to me as I could wish to see it.
On the other hand uncertainty may exist, and that as compleat as the most compleat lawyer could wish to see it may attach upon an arrangement of law in a case /question/ in which the knowledge of a disposition of law on the subject in question may not be contrary, and the terms employed on the occasion be not unintelligible. In the case already mentioned of the law relative to testaments, that there exists a mass of statute law on the subject is what /fact/ I am sufficiently informed of. That the words employed in that law are all of them intelligible to me is a matter of fact which though as it happens not strictly true, may be as easily conceived to be true as if it were so: especially as there are so many other parts of the statute book of which it is true. But suppose if two propositions, each of itself perfectly intelligible the Statute allows in one while it disallows in the other. Hence will arise an uncertainty, example of which might be found in the Statute book in sufficient abundance, but which it is the less necessary to look for in that place, inasmuch as in Jurisprudential law, as there will soon be occasion [...?] is same any thing else.
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Title: [24 June 1805 Evidence Introd]Description: 24 June 1805 Evidence Introd Ch. Non-Notoriety &c. ''.1. Connection First as to the things themselves. Take any article of law at pleasure, knowledge of its existence may exist, without any sufficient intellection of /with regard to/ its import, much more without any sufficient certainty in regard to two different imports, which of them is the true one. But all three (it has been seen) are necessary: knowledge therefore of itself is not sufficient. But though knowledge as above particularized /defined/ is not every thing, neither can it be said to amount to nothing. If it amounted to nothing, a legislative arrangement whereby this object were accomplished and no other would be altogether useless: but this it will be seen is by no means /far from being/ the case. Without any sort of intellection knowledge may of itself seem thus far, that in any one of a variety of ways it may lead to intellection, and thence to certainty. A law is laid upon the windows of certain sort of houses, of which that in which I live is one. I have, no matter how, that for the first time a tax has been laid upon windows. I know enough of the law to know that this new sort of obligation is not of the number of those which can have been imposed in the way of jurisprudential law. I know therefore that it is by some statute and that a new one that it must have been imposed. The statute is enough for me. To know what a window is, to know what paying money is - I know there can not, or at least there ought not to be any need for me to address myself to a man of law. I go at once to a shop, and buy the statute. I read it, and find it, in this part at least, intelligible: for it is not every English statute that is unintelligible, at least in every part of it. I find the import of it even certain: for uncertainty as will be seen is the [...?] and constant attraction of jurisprudential law: of statute law only by accident: and this is statute law.
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Title: [24 June 1805 Evidence Introd]Description: 24 June 1805 Evidence Introd Ch. Non-Notoriety &c ''.1. Connection Again. Uncertainty may not only follow and remain notwithstanding knowledge (knowledge of the existence of a law bearing on the subject in question) but precede and lead to it. In cases where the law in question professes a certain degree of natural notoriety, (as for instance where the obvious mischievousness of the act prohibited by it, and the unavoidable observation of instances where the breach of it has been furnished, point constantly to the knowledge of it, as in the case of the laws forbidding homicide and theft) in these cases, the knowledge of the existence of the law can scarcely be said to be attended with any previous uncertainty. But suppose a [...?] in short matter is mischievousness of the act equally obvious are are examples of the infliction of punishment in the score of [...?] open to observation: as for instance the art of corresponding in our time with an enemy. That correspondence to some purposes can not in such case but be punishable, and if punishable or not, punishable in the a very sever degree, or among the conceptions that can not ever have escaped me. On the other hand, on my looking round for /[...?]/ the purpose, instances occurr to me which correspondence is kept up with the money[?] by multitudes of my fellow subjects, and that openly and with the knowledge of government, and yet no punishment attaches upon any body on that score. The severe punishment to which I regard myself liable in case of [...?] (at the time that my connection with a private friend in the enemy country prompts me to correspond with him) engages me in the inquiry, which leads to the knowledge of the existence of the laws bearing upon that subject. Prosecuting on inquiry I find these laws intelligible or unintelligible, and in so far as the terms of them are intelligible, more or less certain or uncertain as to [...?] /[...?]/ ultimate purport and effect.
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Title: [10 April 1805 Evidence Securities]Description: 10 April 1805 Evidence Securities Ch. Procedure Technical ''.3. Objects ulterior The most effectual security for non-notoriety consists in non-existence. Of Jurisprudential (in English Common) Law, the characteristic /distinguishing/ property is non-existence. Jurisprudential law may be defined that sort of legal discourse, concerning law, of which the supposed purport is every where and the tenor no where. For if /of/ that which is given for law has a tenor, it is no longer jurisprudential but statute law. By an abusive application of the term law a semblance of existence, a sort of verbal existence is given to an ideal object which in fact has none. Between really existing law and this sham law, between statute law and jurisprudential law there is no more real identity, than between a real man and a man of straw, or the spectrum of a man in a phantasmorganic [...?] show. Third[?] device of the Technical system. Keeping the rule of action in /body of the law in as great a proportion as possible, in/ the state of jurisprudential law. Of the tenor of any article or mass of law knowledge of the existence is of no use, any further than /to [...?] as/ the purport of it is known - that is, what, in the want of a suit instituted or defended on the ground of it, would be deemed /pronounced/ to be the purport of it by the Judge. By employing for the tenor /in the composition/ of the law a sort of [...?] to which the man of law is accustomed, men /suitors/ at large in the character of suitors unaccustomed, things may be so ordered that while /of that of which/ the man of law can comprehend, or may be supposed to comprehend the purport, the purport may rendered be so obscure, as that the non-lawyer may not only not comprehend it, but despair of ever being able to comprehend it. - and thence be driven by necessity to address himself for the interpretation of it, to him who professes to comprehend it. Third device of the Technical system: - keeping the rule of action /body of the law/ in as obscure a state s possible.
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