date

6 Aug 1804 Procedure Ch. non
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.
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  • Title: [6 Aug 1804 Procedure Ch. non]
    Description: 6 Aug 1804

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    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.
  • Title: [1819 Oct. 19 Not Paul Consult]
    Description: 1819 Oct. 19

    Not Paul

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    Ch. Paul’s Doctrine

    Doctrine Asceticism

    §. Utility, dictates as to Pleasure

     1. Insert before the improper mention of the proper sense of purity.

    2. Add that the use of the word impurity in the sense in which moral is inferred

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    3. [...?] hypocrites. Hypocrites 1. Religious. 2. Philosophical or moral.

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    To the head /consideration/ of quality belongs that of the

    source from which it is derived—the instrument or instruments, interior or exterior

    to the bodily or mental frame of the individual in question by which (to change the

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    pleasure being [taken for] the subject the words pure and impure and pure are in use

    to be employed for the designation of two opposite attributes of which it is regarded

    as susceptible. In this case the groundwork of the idea is impurity alias turpitude

    in the physical sense: and from the circumstance of the physical disgust which in

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    place, impurity or /and/ turpitude in /on the part of/ the act by which the physical

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    turpitude, the existence of a sort of demand for punishment to be employed either for

    the torment of the offender or for the prevention of the offence, or both.

    [Now /In this case/ then in plain language what is the logic that is at the bottom

    of this rhetoric. It is this.]

    In the shape of disgust or some other shape I for my part should feel pain were I to

    perform this act; therefore if you to whom it would not be productive not of pain but

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  • Title: [25 Aug 1804 Procedure Circumstantial]
    Description: 25 Aug 1804

    Procedure

    Circumstantial

    Ch.1.

    §.2. Practical use

    What has been said of the legislator - meaning the regular, acknowledged, official legislator - is applicable with no less propriety to his (subordinate and) customary though as will be seen deplorably inadequate substitute the Judge: I mean, in so far as by virtue of the rule stare decisis[?] it happens to him to be[?] the law to his colleagues and successors in office as well as to himself on all subsequent occasions: to set the law to them, in virtue of the obligation which he is understood to impose upon them - the obligation of framing out of the particular decision [...?] by him in the past individual case, a general rule, which as effectually and in the same manner as if it had been laid down by the official legislator, shall bind them to give the like decision in all such future individual cases as shall come to be looked upon as being comprehended in that rule.

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