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1821. April 17.
First Lines
Penal Law
Cases unmeet
In relation to punishment, considered as so mauch evil, employed as a means for the excluding, as far as possible, without greater evil, evil considered as producible by misdeeds thus converted - converted by the connection thus established into offences, three main questions on every occasion present themselves -
1. In what cases shall punishment be aplied -
2. In what proportion -
3. In what shape -
1. In what cases shall it be applied? A question of the opposite aspect - by the question in what cases shall it not be applied - a shorter and clearer /more commodious howsoever indirect/ answer may be given to this question than by a direct one.
1. Where it would be groundless -
2. Where it would be inefficacious /needless/ -
3. Where it would be unprofitable /inefficacious/ -
4. Where it would be unprofitable /needless/ -
These are the cases in which /In each one of these cases, supposing them realised/ punishment itis evident manifest would be unapt: of all these cases, it may be said, they are unmeet for punishment.
Case the first - where punishment would be groundless: Where the application of punishment would be unapt. Necessarily involved /included/ in the notion of punishment is the notion of misdeed done, of offence given. Of the sort of operation by which,for the exclusion of greater evil, evil is purposely produced, the operation called punition or more commonly punishment, is but one mode. For, taken by itself, Government is in itself one great /vast/ evil: only except in so far as evil already produced by it, is done away or lessened, can any exercise of Government be performed - can the power of Government be in any way exercised, but evil is produced by it. But wherever, by evil thus produced, greater evil is excluded, the balance takes the nature, shape, and name of good, and Government is justified in the production of it. In this case unless productive of good in some other shape /in the account of good and evil, the evil produced and applied in the shape of punishment would unless it excluded some greater evil, or produced some preponderant good be all loss.
Thus it is that where evil applied as punishment wd. be groundless, what will often happen, is - that evil produced, though designedly, is not causeless - is not unjustifiable
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Title: [1821. April 17. First Lines]Description: 1821. April 17. First Lines Penal Law Case 2. Where it is needless. Here the circumstance by /from/ which the evil receives the denomination of punishment viz. misdoing, misdeed offence has place: as such, evil is among the consequences of it. But, by the operation of some other cause, all the relative good that could be done by the evil of punishment, is done without it. In this case, therefore, whatsoever portion of punishment wee applied would be all loss. Case 3. Where it would be inefficacious. In this case, too, it would be the evil of the offence ever so great, the evil of punishment, though it could not be said to be needless, would however be all loss: to the undiminished evil of the offence would be added the evil of the punishment. Case 4. Where the punishment would be unprofitable. Of the evil which, in its totality, would otherwise be produced by the offence, a portion, more or less considerable, would be excluded by the punishment. But the evil thus introduced is greater than the evil excluded by it. In the three former cases, the evil of the punishment is all loss: in this last case, the evil produced is not all loss, but, after deducting from the sum of what is produced by it, the sum of what is excluded by it, there still remains as a /on the/ balance a net remainder or difference which is so much loss. Comprehensive and on that account theoretical as the description of these cases may appear, there is not one of them that has not, hitherto to a vast and deplorable extent, had its exemplification in practice. To bring to view /afford/ an indication of every one of them, would be to give an all-comprehensive picture of whatever has been hitherto done on the field of penal law. For the clearer conception of each, all that can here be done is - to afford a simple indication of a few comparatively particular but still too comprehensive examples.
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Title: [10 Apr. 1803 Ch 3 Evidence]Description: 10 Apr. 1803 Ch 3 Evidence Omitt in Evidence? Ends That the results termed inconveniences of the first order are respectively of an ineligible, mischievous nature - belong to the account of evil - of pain actual or probable or (what corresponds to it) less actual or probable of pleasure, is already (it is presumed) or will soon be rendered sufficiently evident. No 1. The non-application of Punishment, where due, will be an ineligible result, because in a comprehensive view a mischievous result /one/, on account /by reason/ of the danger it induces of the non-attainment of these more than equal ponderating goods /mass of goods/, the attainment of which is the object, to which the law appointing the punishment was or ought to have been, and is therefore to be presumed to have been, directed: viz: Example, reformation, incapacitation for fresh offences, and compensation for the mischief of the past offence: the cases always excepted, in which punishment viz: the lot of punishment in question, though not inefficacious with reference to the above respective ends, is improper on some other of the four accounts: viz: as being either needless, groundless or too unprofitably expensive. N o 2. Punishment applied where not due, is, ex vi termini, an ineligible, a mischievous result. N o 3. Non-application of satisfaction, where due, is also, ex vi termini, a mischievous result. N o 4 Application of satisfaction where not due, is a mischievous result, by reason of the obligation necessarily concomitant, and the unballanced lot of pain with which the imposition of such obligation is of course attended /[...?]/. Note i.e. prevention of similar offences on the part of persons other than the offender to whom the punishment is applied - See Letters to Lord Pelham Lett. 1. p. Reformation, i.e. prevention of similar offences on the part of the person to whom the punishment is applied: but by taking from him not the power, but the disposition with respect to the commission of them. ibid. p. See Introd. p. Legisl. Vol.[...?]. p. Note A lot of punishment though groundless, because the offence on account of which it has been inflicted has in fact not been committed, may notwithstanding be efficacious with reference to the end of example: that as to reformation there is /may/ /will/ in that case no room for it, and as to incapacitation, no use. Even with a view to example - i:e: to prevention by determent, though it may not be inefficacious, yet being groundless it is on that account needless. And no sooner is it known to have been groundless than in addition to the mischief of the first order, of which whether it be ill or well grounded it is in an equal degree productive it becomes productive of a minschief of the 2 d order - alarm, which how much soever inferior in intensity is in an indefinite degree superior in extent.
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Title: [2 July 1804 Procedure and Evidence]Description: 2 July 1804 Procedure and Evidence Note continued Ends Ch.│ │ Vexation '.1. Note To /Under/ the same head of vexation might also have been referred included the evils produced by rightful decision, on whichever side, that of the Plff or that of the defendant the burthen falls. Evil, on one side or other, and [...?], for a certain period on both sides, evil in some shape and degree or other, is the result as of almost every exercise of the powers of government, so in particular of every exercise, without any exceptions worth dwelling upon of the powers of judicature. of the existence of The evil produced in this way the existence is no less incontestable in the case where the decision to a Mans prejudice is due, than where it is undue. Nor so far as this single individual alone is considered, will it be easy to say, in which of the two cases the evil is of the greatest magnitude. If In penal cases for example, the evil produced by rightful decision in respect of this branch /at this stage/ of it is beyond comparison greater /less/ than that produced by a wrongful decision importing a punishment to the same amount in appearance and in name. For the innocent man the man who /whose punishment/ is wrongfully punished, has for his support and satisfaction howsoever inadequate, all those reflections and shapes[?] which are included by /comprehended under //we have in view when we describe to him// the denomination of a good conscience: a consolation of which, if a man be guilty, and conscious of his being so, he feels himself deprived.
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