date

23 June 1805 Evidence Introd
23 June 1805

Evidence

Introd

Ch. Non-Notoriety

''.3 Contracts

At other times, to instruments expressive of a will which was not his /a mans/ own, marks of recognition, whereby he represented them as being his own were observed in various ways by fraud or /[...?] or/ force.

The man of law, on his part, ever on the watch, (for such is the effect of the technical System) to take advantage of the wickedness of mankind and its attendant miseries, ever on the watch to convert them to own use, and aggravat them to his his own benefit, by aggravating those under pretence of alleviating or curing them, laid hold of /levied/ the opportunity, and applied to the disease one of his quack and drastic medicines.

Contracts (said the lawyer to the legislator) Contracts, you see are liable to be forged: or what is as bad instruments of contract which though adopted /given/ by the parties as containing the real /genuine/ expression of their respective wills and desires do not contain it, the assent given to them having been obtained by force or deception, are liable to be produced and the assistance of the Judge demanded for them and obtained, just as it might and would and ought to have been had these instruments bear in [...?] what they falsely purport to be. Spurious contracts are liable to be produced and conferred as if they were genuine: contracts unfairly, as if they had been fairly obtained. Take my advice and you will do away this grievance. I have invented certain formalities /contrived certain ceremonies/; certain operations such as those who mean unfairly such as were to put of spurious or unfairly made contracts, for genuine and fairly made ones, will not find it easy to perform: adopt these formalities, say that a pretended instrument of contract, produced as and without having been accompanied by these formalities, shall not be considered as genuine and fairly made, shall not receive from you that assistance which is necessary to its being endowed with a binding form - say for shortness that it shall be null, void, and of no effect.
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    '.1. The legislators duties in regard to Contracts

    Here then, in relation to Contracts in general /taken in the mass/ we see the two /three/great tasks and duties of the legislator:

    1. The first positive. viz to give their full effect to cause such contracts as are neither noxious nor spurious noxious in themselves, nor spurious in respect of the instrument employed or for the expression of those to mean the full benefit of that [...?] and assistance which he professes to give to contracts.

    2 The second, negative - viz to present noxious and presumably noxious contracts from receiving at the hands of the Judge that [...?] and assistance which it is his endeavour /wish/ to confess to such as are beneficial or at least innoxious.

    3. The third, negative also - viz. to prevent spurious contracts spurious instruments of contract from receiving, as above, that [..?] and assistance which it is his wish to confine to genuine ones.

    In the pursuit of these several important ends whatsoever instruments he is capable of calling in and working with belong, all of them, to the head of pre-appointed evidence.

    Here then as problems in themselves we see two objects 1. How to choose the set of instruments most suitable to these several purposes: 2 How in pursuit of these several purposes to make application /employ/ of each such instrument to the best possible advantage.
  • Title: [23 June 1805 Evidence Introd]
    Description: 23 June 1805

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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

    ''.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.