date

6 Aug 1804 Procedure Ch. non
6 Aug 1804

Procedure

Ch. non-homologation

Thus when the law (jus) relative to theft is made out /brought into existence/ in the way and in the shape of statutory law: how stands the matter where the law (jus) relative to the same sort of offence /forbidden conduct/ is brought into existence no allowance then in the way and in the shape of jurisprudential law? (jus juris prudential.) A man is seen or suspected to have been committing an act which in /to/ the conception of the party entrusted presents itself as belonging to the sort of conduct expressed by the word theft. Expecting to find the like conception on the part /prevalent in the mind/ of the judge, he causes the supposed delinquent to make his appearance in presence of the Judge: the Judge actually entertaining that same conception, and finding the fact /matter of/ - the act of taking the thing in the circumstances (the psychological circumstances) which are understood to give the denomination of theft to the physical act of taking) proved to his satisfaction, sentences the offender to be punished with a certain number of stresses, which stresses are accordingly inflicted. Here then is an individual found on an individual occasion to have performed /exercised/ an individual act, and that of such a nature, that the judge thinks fit to inflict upon the individual /him/ under the name of punishment, a suffering in consideration os such his act, and by so doing to treat it on the footing of an offence: to treat him as in obedience to the prescription of an acknowledged legislator, he would have treated him, had there been in existence an article of statutory law incurring the offence of theft, explaining what sorts of acts /acts/ shall be understood as belonging to the sort of offence so denominated, and requiring or authorising the Judge to punish with stresses leaving the mode of infliction and the number not at his discretion, the individual act in question being understood by him to belong to the sort of acts comprehended under that definition, and thus mode and numbers of the stresses to be warrented[?] by the latitude of discretion given to him as above.
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  • Title: [6 Aug 1804 Procedure Ch. non]
    Description: 6 Aug 1804

    Procedure

    Ch. non homologation

    ''.3.2. Import uncertain

    What is there of the nature of law (lex) in all this? - nothing. What is there that in the way of jurisprudential law (jus) can answer the purpose of such a law? Nothing; but as little, unless it be the general idea which a bystander if such an one there happens to be, or seen one who has heard of in all its circumstances the individual transaction, may have made for himself - extracted and abstracted out of the idea so obtained of its[?] individual transaction for his own use.

    Thus it is that what words are in statutory law, these or the equivalent are in jurisprudential. As often as a man is found to have committed an individual act which in the mind of the man in power (say here the Judge) answers to the general idea expressed by words constituting the denomination of a species of conduct which men are prepared it is supposed to be treated upon the footing of an offence (viz: by punishment with or without the burthen of satisfaction attached to the commission of it) he is either put to death, or whipped or beaten, or consigned[?] to prison or made to lose a part or the whole of his property, or in a word punished or otherwise burthened and made to suffer in some other manner as the case may be. Other men observing, if the opportunity of observing /observation/ happens to come across them - observing each for himself in what cases a man has been dealt with, learn perhaps to expect, and to apprehend each for himself that in the event of his venturing to act in like /sort/ manner, he may come to suffer in like /sort/ manner.

    Note

    In punishment thus sentenced, the same offender, if he be left alone, the same offender recollecting what has happened to him and the case in which it has happened to him learns to apprehend that on any future /subsequent/ occasion, any future /subsequent/ act of the same sort will be followed in his instance by punishment of the same sort, if not worse.
  • Title: [1818 May 15 Parl. Reform Bill]
    Description: 1818 May 15

    Parl. Reform Bill

    Reasons 2 o

    VIII. Penal Securities

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    {Here then,} Throughout the whole field of delinquency, here, throughout the whole

    pit of offences – at any rate if such as {are denominated such for the designation of

    which single-worded there are in use so many have} /have/ single worded names as

    theft, robbery /burglary/ perjury seduction, rape, murder treason and so forth you

    have here in the existence a known and uniform distinction supposed between the

    principal offence /of the principal/ on the one part and the offence of an accessory

    on the other. Unfortunately no such distinction really has place. Of the offences of

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    would in every instance be found true

    [marginal note:] Neither theft nor robbery are in use among lawyers but both are

    confounded under the name of larceny
  • Title: [6 Aug. 1804 Procedure Ch. non]
    Description: 6 Aug. 1804

    Procedure

    Ch. non-homologation

    3.-2. Import uncertain

    Governed in this way, men are governed precisely upon /on/ the same footing /way/ and by the same means as dogs are governed.

    On a certain shelf in a certain room are kept provisions that be in readiness for family use. As often as the dog is seen taking or attempting to take from off that shelf without permission, any part of its contents, he is beaten for it. In this way, is formed in the mind of the dog the idea of that offence which we call theft and of the law, by which in the way of jurisprudential law (jus) that offence stands prohibited. In the memory and imagination of the dog the place of a definition is supplied by the association formed between the idea of the spot in question, the idea of the act of taking the sort of article in question from that spot, and the idea of the stroke of the stick, of the previous threat conveyed by the previous holding up of the stick, and of the pain sustained in consequence. As often as the master or any other person in the family, after taking up though it be from that same shelf /[...?]/, a piece of meat or other provision, holds it out or loses it to the dog, who eats it accordingly, no beating takes place, no threatening, nor consequently any idea of theft.