date

29 July 1805 Evidence 2 [.
29 July 1805

Evidence

2 [...?]

Statutes according to this division are either penal or remedial. Penal are to be construed strictly: meaning by strictly /as appears by the exemplification/, the taking advantage of some particular word or words of /in/ the statute to avoid giving effect in this or that instance to what appears to have been the will and intention of the legislator upon the whole: here then the mark set up by the legislator is fallen short of by the Judge.

Remedial statutes are to construed liberally. Here the mark set up by the legislator is to be overshot by the Judge. In a certain view /With a view to a certain and according to the measure of his faculties, The legislator the legislator, has made a law to a certain extent. On occasion and pretence of this law, the Judge, with a view to the same or to a different end, takes upon him to make another law /on [...?]/ to a further or collateral extent.

Under this nomenclature /this distinction/ and this division which they /made by them/ in large part after the [...?] statutes not to say the whole/ there is no saying which part of the mass of statutes is marked out from misconstruction.

For the misconstruction put upon penal statutes, a regard for humanity [the [...?] of lawyers a /an English lawyers/ humanity,] is the pretence: [for, whatever be the [...?] particular rule /becomes of other rules/ upon the carpet, the rule of hypocrisy is never deviated from].

A pretence? yes: how should it be other than a pretence? 1. [In the first place] the distinction between penal and remedial is mere vapour. Unless in so far as it is remedial, what penal law of the final class any thing but /further than/ an act of tyranny? Till the system of legislation is perfect, in practice as well as theory, the mass of penal law in every nation will and must involve such acts of tyranny. That in an usurpation and temerity can any serviceable /useful/ remedy and /any/ advantageous substitute be found, for any such immemorial and [...? ...?] tyranny? But can the /any/ legal tyranny on the part of the supreme authority, find any advantageous corrective in the arbitrary power of that which should be its sub-ordinate.

Note

Unless in so far as affording a gratification to an inordinate vengeance, or even more causeless antipathy, (a case indeed but too frequently exemplified) is the /has been/ sole object of the law, what in any instance is punishment /good for or proposed to be [...?] for/ of any use, but in the character of a tyranny? And of /what sort of efficacy can be possessed by/ what effect were any arrangements of law, call it remedial or any thing else, unless it have punishment, /more or less as bound/ to back it?
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  • Title: [29 July 1805 Evidence Introd]
    Description: 29 July 1805

    Evidence

    Introd. Jurisprudent[?]

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    The distinction vanishes /is alike evanescent/ when viewed from another point of view. This [let it be allowed] is a penal law and not a remedial: this other a remedial and not a penal one. Be it so: but in the class penal class the sufferance produced by a law to the convict, may be a fine [...?] the value of half a days worst paid labour: in the remedial class a suffering may rise to the height /level/ of the largest fortune, not to speak of imprisonment /[...?] and its punishment/ in name indefinite in effect perhaps for life.

    The mask of humanity having been thus taken off, there remains lawyer craft in its genuine colours, with its real and perpetual end in view, confusion, uncertainty, and factitions made business. Whether the law be destined /In the individual case in hand/ to be construed away or no, there sounds /has its/ the principle of strict instruction to afford a pretence for construing it away, and there sits the professional lawyer with his hundred heads and as many hands [all open to the reception of fees for the attempt] the hands all grasping for the accustomed fees, the heads all in readiness to enter upon the experiment, and in the character of licenced accessories after the fact, to snatch /rescue/ the malefactor, if possible, out of the hands of justice.

    But in a bosum of which it is a duty to feel for /look to/ consequences suppose humanity to consist in the blind and constant endeavour to diminish the number of penal inflictions without regard to consequences: in the breast of a vetran surgeon /let it be/ suppose it to be the ordinary effect of humanity, to have the patient to perish rather than put him to the pains of having his wound dressed. If it was rule or any other by humanity that he was induced to construe away the statutory law, in prejudice of the declared will of his lawful superior the legislator, observe whether this sort of strictness adheres to him in the construction /interpretation/ put upon that sort of law in the spinning of which he and his brethren are so assiduously employed.
  • Title: [22 Jan y 1803 (7 Penal clauses says]
    Description: 22 Jan y 1803 (7

    Penal clauses says a rule of law shall be construed strictly.

    clauses says another rule of law shall be construed liberally. Penal

    clauses shall be construed strictly: yes: but

    when a remedy is bound up

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    another: the remedy and the penalty so distinct, that the remedy

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    — for the hundreds and thousands actually included in it in the

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    The Writ of Habeas Corpus,

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    by this , would in point of law run in New South Wales? Would

    Lord Alvanley

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    upon the whole of this case, , allowable, to

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    to my humble conception they would praise at least ere they gave

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  • Title: [18 March 1808 Letter V §.6]
    Description: 18 March 1808

    Letter V

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    4. Desistment Causes

    IV. Causes of Desistment, (viz. after demand), in the cases in which it operates as a cause of Failure of Justice.

    With a few exceptions, which upon looking over the causes of Non-Demand will be obvious, the causes of Desistment will be found to be the same: the difference, whatever it is, being the result of the difference in respect of relative time.

    Factitious causes, negative or positive, of Desistment, and thence of Failure of Justice.

    In the case where, for the more effectual prevention of the wrong, punishment either in lieu of satisfaction (there being no party specially wronged) or in addition to satisfaction, has been deemed necessary, omission of such arrangements as may be necessary to prevent the plaintiff from putting an end to the suit and so giving a virtual pardon to the defendant without the concurrence of the Judge.

    Technical procedure affords to individuals means in abundance, and those sure and safe ones, for frustrating in this way the designs of the legislator: manufacturing nullities, keeping back the evidence, &c: the parties need but to take their choice.

    Frequently the same offence or wrong is made punishable by any one of several degrees of punishment, attached to it by so many different statutes or rules of jurisprudential law. By one article of law, the offence being capital, the accusation is grounded on another, under which it is less penal; and then, by whatsoever motive the choice of this unfair degree of punishment may have [been] determined, it receives the praise of humanity, and, amongst other persons, from the Judge. The commendation is frequently just; but can seldom be so, unless the reproach of inhumanity and inconsiderateness be to an equal degree merited by the legislator.