date

23 June 1805 Evidence Introd
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.
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  • 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 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

    ''.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.