[059- 131]

16 Apr. 1803

Evidence

Omitt in Evidence? Note to p. 10

10 Note

Ends

As for the inconvenience the mischievousness of failure of justice of non-decision or wrong decision to the prejudice of the cause of the plaintiff whether penal ground or non-penal - the mischief resulting from the disfulfillment of the positive predictions of the law on either ground - it is a proposition /point/ on this occasion a proposition to be assumed - not proved. Either it is a mischief or there ought to be no such law /no such law ought to be continued in existence. Every coercive every efficient law is in the very essence of it an evil: if in any case that evil be not compensated for by a more than equivalent good, it /the law/ ought to be abolished. In the fulfilment of those predictions of the non-penal branch of the law by which proprietary and other reghts are promised in the cases specified to be conferred - of those predictions of the penal branch by which satisfaction in the case of injury is promised to be administered depends security - the sense of security - in a word the existence of security. If in any instance the law is deemed by the competent authority ill-adapted to its purpose, repugnant or unconducive to its end the remedy for the grievance /proper mode if relief against the burthen of it/ consists in the abolition of the law not in conniving at the evasion of it, and striking, or suffering it to be stricken with impotence. Be the law good or bad on no supposition whatever can the disfulfilment of the predictions delivered by it be otherwise than an evil /be placed otherwise than to the account of evil/. Good the law cannot be unless the nature of it be to pay by its superflux of goodness /utility/ for all the evil which is inseparably attached to it: attached to the execution of it upon the disobedient as well as to the observance of it by the obedient /burthen of the obligation upon by it upon [sic]/.If it be bad /the law be a bad law/, the non-execution of it will still be an evil: relatively or comparatively an evil if not absolutely an evil. It will be an evil in comparison of the abolition of the law: an operation by which will be produced more than all the good that could be produced by connivances at the violation, without any of the mischief.