date

23 June 1805 Evidence Note
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.
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  • Title: [23 June 1805 Evidence Introd]
    Description: 23 June 1805

    Evidence

    Introd

    Ch Non-Notoriety

    ''.2. General Mischief

    2. Take the case of a non-penal law, conferring upon a man a right: and suppose the right of that sort which may be called consummate in the first instance, not requiring the authority of a Judge to put him in possession of it.

    Take the right of self-defence consisting in the right of using mortal weapons (fire-arms suppose) for the defence of person, property and residence - against the attacks of nocturnal depredators directed against /made upon/ the dwelling house.

    A depredator of this description attacks a house for the purpose of breaking into it. The owner, who is alarmed at /in/ him before the depredator has got in, has a loaded gun within his reach: with which, such is the relative situation of the parties he might have made sure of shooting the assailant: but not knowing /supposing or not being sufficiently assured/ that the law has given him this power /right/, by exempting him who exercises it from the punishment attached to homicide, and in the hope that the depredator after having satisfied his rapacity on the property in the house will leave the persons unmolested, hesitates /fears/ to employ this instrument of defence, whereupon the depredator enters and fulfills /accomplishes/ his criminal purpose.

    Here then loss of property perhaps of life, and the successful consummation of a crime attended by wide-spreading alarm is the consequence of the non-notoriety of the law. But no mischief, such as that of punishment, being in this case inflicted on the sufferer by the hand of the law itself /himself/, the consequence is an ex post facto law.
  • Title: [23 June 1805 Evidence Introd]
    Description: 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
  • Title: [23 June 1805 Evidence Introd]
    Description: 23 June 1805

    Evidence

    Introd

    Ch. Non-Notoriety

    ''.3 Contracts

    ''. Non-Notoriety in regard to the law of Contracts

    A particular mischief resulting from non-notoriety attaches upon the law of Contracts: under which, for the present purpose at least, may be understood /comprized/, testaments, and consequences, as well as obligatory arguments and promise.

    A contract is a particular law, to which in so far as the validity of it is admitted, the legislator lends his sanction. a law in regard to which the initiative power resides in the individual, and which the legislator, so far as he allows the validity of it, and thereby lends the force of the judicial power to provide for the execution of it, confirms and makes his own /adopts as if it were his own/.

    Two authors at the least may accordingly be seem contributing to the formulation of each such law: the contracting party or parties, the instant or [...?] author or authors; the legislator the [...?]. (a)

    Contracts taken in the aggregate being necessary [...?] to the well-being (such as buying and selling) [...?] (such as marriage) to the very being of society, are generally perceived and understood to be so: and moreover in every civilized community the enforcement of them, by the hand of law, is matter of universal observation to every body.

    Being the difference between jurisprudential and statutory law (of which in its place) The state of things is therefore in this respect exactly as it would be if in every community a law in these precise words existed and was universally known to exist. Saving particular exceptions whatever contracts are really made, shall be faithfully observed.

    As every thing that is dear to them comes occasionally to depend upon the faithful fulfilment of those obligations which it is the object of these instruments respectively to impose, men are in the habit of trusting in this way any thing that is dear to them to the good faith of the legislator and his subordinate the Judge.

    Note

    (a) This nomenclature has been already applied to the subject; but confined to the single and comparatively narrow case, of this species of contracts, viz: conveyances which are called foundations.