date

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

    Evidence

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    Ch. Non Notoriety

    ''.3 Contracts

    In this state of things if a contract visibly[?] entered into fails of receiving, when and calls for it, the assistance of the Judge for the enforcement of the obligations imposed by it, the addition[?] of the services intended to be rendered in virtue of it, the party who suffers by such failure, fails not, as soon as such failure is made known to him, to receive a shock: a power which may be called a power of disappointment: which shock or pain is of course more or less severe, according to the value of the service the good, the property the benefit whatever be its nature of which he thus finds himself deprived. It may be next to nothing: it may be instead every thing that is dear to him, every thing he either considered himself as possessing in present or entertained any expectation of coming to the possession of in future.

    No sooner did /had/ the art of writing come into general /any tolerably extensive/ use than it was /came to be/ employed to give expression and permanence to this particular class of private laws: and no sooner did the practice of making this use of it become frequent, than the influence of sinister interest, ever upon the watch, laid hold /took possession/ of it for the purposes of abuse. Instruments which did not contain the expression of the will of the individuals who upon the face of them appeared by the mention made of their names to have been parties to those contracts, authors /instruction/ of those private laws were framed in such manner as to appear to contain the expression of such will, and by so doing, obtained, unless the fraud came to be /were/ discovered, the assistance of the power of the Judge, which accordingly employed itself in enforcing the fulfilment of these spurious contracts in the same manner it would have employed itself in providing for the fulfilment of so many genuine ones. The fabrication of such spurious instruments constitutes the most extensive and mischievous modification of that species of fraud which has acquired the name of forgery.

    + pretended wills, pretended conveyances inter vivos pretended bonds notes and securities for the payment of money.
  • Title: [23 June 1805 Evidence Introd]
    Description: 23 June 1805

    Evidence

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    Ch. Non Notoriety

    ''.4 contracts

    Such was the advice given by the man of law: and such was the advice in an evil day, complied /listened to/ and acted upon by the legislator. With an inconsiderable addition or [...?], it might have been truly and uniformly useful: for want of that addition, it has become pernicious to the community at large useful only to the insidious author of it, the man of law.

    What was that addition? In the first place The taking the arrangements necessary for the rendering the invalidating provisions known

    Neither of these under [...?] conditions being fulfilled, nor being rather taken that they should not be fulfilled, what was the result? the mischief was rather aggravated then alleviated by the pretended remedy: disappointment received [...?] of frequency: the only purpose answered was the sinister purpose of the men of law.

    The breach of that one of the two conditions which regards notoriety is the only one of the two topics that belongs to the present place. Both will be considered at large so far as contracts are concerned, under the head of Pre-appointed evidence.
  • 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.