date

23 June 1805 Evidence Introd
23 June 1805

Evidence

Introd

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