6 Dec r 1803

Evidence

Exclusion

2 Notoriety

'.1

The exceptions, for such there are, are not so obvious but that the stating of them may be of considerable use, and through important lights on the whole body of the law.

Exception 1.

Case 1. The law a bad one: and say first a penal one /a penal law/. There are two descriptions of persons in whose instance /to whom/ it is desirable that it should be unknown. 1. All persons /Every person/ who might be disposed to call it into effect by prosecuting upon it /prosecutions grounded on it/. 2. All persons on whom it bears - all persons on whom it imposes coercion, all persons who exercise or wish to exercise the liberty which it seeks to take away: viz. in the instance of persons of this description so long and so long only as it remains unnoticed or what comes to the same thing, unemployed /uncalled forth into action/ by persons of the former class; viz: so long as provocation is not the consequence, real or apprehended, of the exercise of such liberty.

Exception 3

Case 2 d This law a bad one: a non-penal law. call it a distributive law. + and say now a law of the non-penal class: a law by which at the expense of a person of one description a right is enacted and conferred upon another. Descriptions of persons to whom it is desirable that it should remain unknown, the same mutatis mutandis, as above. 1. All persons /Every person/ who might be disposed to take advantage of the law, by claiming a right /at the hands of the Judge/ which could not be conferred upon them, but by imposing on some other person an obligation more onerous /burthensome/ than the right is advantageous. 2. All /Every/ persons burthened by the law, as above: viz: so long, and so long only as it remains unnoticed or unemployed by the persons favoured by it.

Exception 3 d

Case 3. Two laws: [...?] law; belonging to the substantive branch of the law, and that a good one: 2. a law belonging to the adjective branch of law; i: i: a law or rule of procedure; and that a bad one: the effect of it being, as often as it is applied, the destroying the effect of the abovementioned good law; the disfulfilling the prediction uttered by it - the violating the engagement taken by it: in the case of a penal law /of a penal law/, the giving [...?] to the mischievous act prohibited by it; the withdrawing the protection promised by it: and so mutatis mutandis in so far as the operation of the good substantive law in question is in favour of the defendant, and under punishment brought down upon him is the effect of the bad substantive law. so again mutatis mutandis on the part first of the plaintiff, and then of the defendant in the case where the good substantive law plays of the non penal or distributive class, as above described

+ a law, the function of which consists in the distribution of rights.