date

23 June 1805 Evidence Introd
23 June 1805

Evidence

Introd

Ch. Non-Notoriety

''.2. General Mischief

To render it in every instance clear as well as conformable to the truth of things, the general conception above given requires to be /in several points to be/ analyzed and particularized.

The prime distinction is that between a penal and a non-penal law.

1. Take the case of a penal law. The mischief resulting from the non-notoriety of a law of this class is distinguishable into two very different lots.

1. First comes the mischief of the offence. This is measured by the number of times at which by the individual in question or in the community in question the offence comes to be committed, for want of their being apprized of the existence of the law whereby the commission of it was /stood/ prohibited: First lot of mischief flowing from the non-notoriety of a penal law, mischief of delinquency /offence/.

2. Next comes the mischief of the punishment. The sort of offence in question being for want of the requisite notice committed by the individual in question or in the community in question in a certain number of instances, comes an instance, in which being detected is a suspected of the offence a delinquent comes to be prosecuted and punished /the punishment denounced by the law inflicted on him/. Second lot of mischief flowing from the non-notoriety of a penal law mischief of the punishment.

In this case, merely for want of notoriety, the law in virtue of which he is punished, this law however useful and even necessary in other respects, is in the instance of every individual on whose head it brings down punishment, stained by the mischief and injustice of an ex-post-facto law.
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  • 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: [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: [May 1805 Evidence Introd]
    Description: May 1805

    Evidence

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    Ch.3. Preparatory

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    '. Division of Suits By every suit at law, by every juridical demand, an obligation of some sort or other is, endeavoured /sought/ to be imposed upon the defendant: if the nature of the obligation be such that the evil or burthen /sustained[]?]/ to which the defendant is subjected is of a nature /so circumstanced/ to be comprized /come/ under the denomination of punishment if the defendant on being subjected to it is said to suffer punishment he being understood to have done some act that comes under the denomination of an offence the suit is of the penal, say (for a reason that will appear presently) purely penal class: if the nature of the obligation be such that from the defendants being subjected to it, the plaintiff receives some advantage, but the Defendant is not considered as suffering any thing /subjected to any suffering/ on the score of punishment /not being considered as having committed /done/ any act that comes under the denomination of an offence/, the suit is of the non penal class: if from the defendant's being subjected to the obligation, the plaintiff is understood to have received an /some/ advantage, and his right to that advantage is understood to be constituted by the fact of the defendants having committed some /an/ offence, among the consequences of which is that of having been productive of some lot of mischief falling exclusively upon the defendants, the suit may be said to be of the mixed class: what advantage is in that case understood to come under the name of satisfaction, and in some cases compensation indemnification, indemnity damages(a) The mixture consists in this: viz: that in this case, the benefit received by the plaintiff by the administration of such satisfaction /upon such satisfaction being administered/ to him, his [...?] respect to the augmentation of his well-being an effect similar to that which redounds to him when by the non act of the Judge he is made to receive the benefit of a right, the inchoate right conferred on him by the legislator being for his benefit converted into a consummate /correspondent/ right: at the same time that on the part of the defendant the burthen attached to the obligation of rendering this satisfaction, being imposed on him a consideration of the offence committed by him (or her) to the prejudice of the plaintiff, has in that respect the effect of punishment.