date

1821. April 17. First Lines
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: [1821. April 17. First Lines]
    Description: 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
  • Title: [16 April 1804 Evidence Forthcomingness]
    Description: 16 April 1804

    Evidence

    Forthcomingness

    Ch. 4. Misprision

    ยง.2. Extent eligible

    2. Eligible extent - Rules for marking it out.

    Such being the possible extent, capable of being given to the offence characterizable by the name of non-information, next comes the question in what cases the imposition of the correspondent obligation is an eligible measure?

    On this subject the answer to be given may be comprized under the following rules.

    Rule 1. For the purpose of no cause, not being of a penal nature, ought the obligation resulting from the extension /creation/ of the sort of offence called non-information to be imposed. In other words - of the sort of offence, characterizable by the name of non-information, no modification that is not comprizable under the head of non-delation, ought to be imposed.

    Reason. The punishment and prosecution as for any such offence should be so much vexation. By reason /In consequence/ of the natural and in some degree almost insuperable non notoriety of the law, especially the non-penal branch of it, this vexation would /might/ frequently be incurred. but in general in such non-penal cases, in which information /indication/ of evidentuary facts from casually percipient witness were necessary to the purposes of justice, the purpose of it might be sufficiently answered by its being furnished where called for by notice, advertisement, general or particular, communicated /given/ for that purpose. This being admitted, whatever portion of vexation were to be produced by a penal law to the effect in question would be needless.
  • Title: [[clx. 193] 1821. April 20.]
    Description: [clx. 193]

    1821. April 20.

    First Lines

    Judiciary

    /Procedure

    Non penal and Penal/

    Aspect of the cause or suit - non penal or penal.

    By a non penal cause, understand that sort of excuse in which, in addition /over and above/ to the suffering unavoidably attached to the burthen of relief redress or compensation, no additional /ulterior/ burthen is for the purpose of punishment imposed.

    A cause is rendered penal in either of two ways by substitution or by addition made of punishment to relief or compensation: by punishment substituted to relief or compensation or added to it.

    1. Where evil has been done, but no assignable individual to whom it applies to the exclusion of all others /any other/ there is no individual to whom in particular relief can be afforded or compensation made. In this case, punishment must, if any, be the shape in which if in any, the inducement to forbearance must be presented.

    In this case are the several offences appertaining to the class intituled offences against individuals.

    Causes of this description may be stiled penal on account of an individual specially injured.

    2 Causes penal by reason of aggravation. In these causes to the burthen of compensation, if there be an individual specially injured, suffering, for the purpose of punishment, is added. If there be no such individual, punishment exceeding that which is added in a cause which is penal only for want of an individual injured is employed.

    To those penal causes which are such by reasons of aggravation, the adjunct criminal may be applied.