date

30 Oct 1811 Ch [...?] Ch.2
30 Oct 1811

Ch [...?]

Ch.2

Of contracts in general - Legislators duties - Advantages desirable from the application of the principle of pre-appointed evidence to contracts

'.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.
Similar Items
  • Title: [30 Oct 1811 Evidence VI. Preappointed]
    Description: 30 Oct 1811

    Evidence

    VI. Preappointed

    Ch.2.1. Contracts [...?]

    if Preappointed

    ' 4 [...?]

    '.4. Modes of noxiousness in the case of Contracts.

    When, as above, reprobated, the account in which a contract is, or at least is declared and supposed to be reprobated is that of presumed noxiousness. Pursuing that division /analysis/ which forms the foremost a clearest basis of whatever operations are carried on by the legislator against the mischief apprehended from [..?] or other pernicious acts, By itself[?] a mischievous noxious act of this description as of any /in all/ other descriptions this party or parties affected will be seen to be other assignable individuals, a subordinate class of the community or the aggregate of the whole community or the whole public.

    The case where it is to the whole community the case where it is so the case where it is so to determinate are or to a subordinate class or even to assignable individuals not being parties to the contract that it may happen to its tendency to be noxious in a case /all these are cases/ of too great a latitude to come under consideration on this present occassion /be included within the compass of the present head/. To whatever contracts this pernicious quality actually belongs, it belongs to the duty of the legislator to look out for and collect them together - marking them as reprobated, and in eah designating by such a description as shall suffice to prevent their being engaged in by any person, for want of being apprized of the [...?] /fate/ thus prepared for them and the consequences that will ensue.

    Such in relation to contracts so circumstanced as above will be the duty of the legislator: but in the performance of that duty in those instances, generally speaking he will not find any particular capacity of yeilding him assistance in the principle of pre-appointed evidence.
  • Title: [23 June 1805 Evidence Introd]
    Description: 23 June 1805

    Evidence

    Introd

    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: [20 March 1808 Letter V §.6]
    Description: 20 March 1808

    Letter V

    §.6. Reasons

    Ends of Justice

    Non-forthcomingness of Evidence

    Causes

    Factitious continued

    6. Want of d o for compelling deposition on the part of every person capable of yielding testimony, saving the cases in which such deposition would be productive of preponderant mischief in the shape of vexation, expence or delay.

    7. Want of d o for compelling production of things or writings in the character of sources of real or written evidence; saving as above.

    8. Want of d o for securing to the judicatory in which a suit is commenced the assistance to the above purposes from the several other judicatories within the dominions of the same state.

    9. So, from judicatories within the dominion of foreign states in times of amity.

    10. Want of d o for the collection and perpetuation of pre-appointed evidence: viz. for preserving, antecedently to the institution of any suit, the memorials of such facts as are of a nature eventually to operate in the character of facts collative or ablative in relation to rights and obligations: for example involuntary acts, such as births and deaths: voluntary acts, such as those by which contracts (including agreements of all sorts, and amongst others marriages, as well as acts of conveyance, including testaments) are engaged in.