date

23 June 1805 Evidence Introd
23 June 1805

Evidence

Introd

Ch. Non-Notoriety

''.2. General Mischiefs

'' 2. General Mischiefs of Non-Notoriety on the part of the Law

On a general and undistinguishing view of the subject the following observation present themselves

1. A law can neither do good nor learn[?] any further than as it is known: since it is only in so far as it is known that human conduct can be influenced by it.

2. Taking in its totality the existing mass of law, excepting that character in any country, the preponderance of the good effects of it over the bad is a supposition the truth of which can not consistently or rationally be denied by any body. For of the bad preponderants, those in that country the condition of the inhabitants would be so much the better if there were nothing or no laws at all: that is, if there were none of that security for person, property, requisition, condition in life, and life itself which being created and conferred by law depends upon its existence.

3. Therefore, taking it in its totality, it is better that it should be known than unknown, known to every body than unknown to every body or to any body, and that at all times.

4. Therefore, each and every law, considered merely as being a law, and antecedently to any inquiry relative to its special tendency, must be considered as possessing primä facie a beneficial tendency, and consequently as being of such a nature, that the consequence of its failing in in any degree and respect of notoriety can not but be pernicious
Similar Items
  • Title: [23 June 1805 Evidence Note]
    Description: 23 June 1805

    Evidence

    Note?

    Introd

    Ch. Non-Notoriety

    ''.2 General Mischiefs.

    To carry the procession of our ideas on this subject to its maximum, to a degree which will naturally appear trifling, until it comes to be applied to [...?] a distinction must be made between actual non-notoriety and natural non-notoriety.

    With reference to each individual, the non-notoriety (understand here the actual non-notoriety of each /any/ given law during any given period (suppose a year) will be as the number of instants (during this period) at which it not present to his mind to the number of instants at which it is present to his mind.

    But for such point of time as supposing the law present to his mind he would have no interest in acting or (according [...?] the law is of the practice a [...?] cast) forbearing to act, in consequence, it is not material to him whether the law be present to his mind or no during the time of sleep for example at which his unacquaintance with the most important law suppose the law against murder, would be of no material consequence. Therefore in the instance of each individual, it is not to actual non-notoriety but to natural non-notoriety, non-notoriety at a time when notoriety would have been material, that any evil consequences are to be ascribed.
  • Title: [23 June 1805 Evidence Introd]
    Description: 23 June 1805

    Evidence

    Introd

    Ch. Non-Notoriety

    '.2. General Mischief

    5. The existence of a law to any effect being supposed, the compleat non-notoriety of that same law can not consistently be supposed.

    This being promised, in the instance of every /a/ law, of which the preponderant utility is supposed, being supposed to be in any degree unnotorious two distinguishable mischiefs will be to be considered as flowing from its want of notoriety: viz: the mischief consisting in the absence of the good that would have resulted form the observance of it, in the instances in which it would have been observed, but was not observed:

    2. the mischief consisting in the evil which in the case where not being generally known it comes in a particular instance to be observed, accrues to those on whom the observance of it imposes some powerful obligation for the endurance of which they were not prepared.

    It is this latter mischief which in the chapter on Irrelevant decisions has been described as attached to the nature of an ex-post-facto law. It is to the circumstance of a man not being apprised of the existence of the law under which he suffers + that an ex post facto law is indebted for /derives/ all its mischievousness and injustice.

    + (possessed of the information of its existence time enough to enable him to escape from the punishment or other vexation threatened by it)
  • 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.