date

2 May 1805 Evidence Introd
2 May 1805

Evidence

Introd. Ends

Ch.7. Quality

Ch.7. Collateral Ultimate ends having respect to Quality: viz: of punishment, rights, or satisfaction

A question here presents itself - The substantive law /The legislative power/, having prohibited an act having converted an act into an offence attach punishment to it, in a certain shape, and that it shall be punished in a certain way /punishment, of a certain kind shall be annexed to it/: the judicial power - the substantive law attaches punishment to it not in that way /shape/ /punishment not of that kind/ but in another: and so in regard to rights and satisfactions What is the relation of this case (it may be asked) to the preceding ones? By this means are the preceding ends, any of them, disfulfilled? - and if any, which of them. I answer yes: two at once. By every such judicial decision two infractions at once of the arrangements of substantive law are committed, yet /but/ two such infractions, that are in substance and effect the infraction of the law is less trouble[?] to the ends of procedure taken all together, than if either of them had been infringed alone: two infractions in form - in logical verbal form: but less than one in political effect - in pathological /real/ effect - in a word in substance. Two aberrations at once from the straight line of rectitude: two abberations, yet so connected and related to each other, that being in contrary directions the one of them operates as a correction to the other, and the result consists not of their sum but of their difference.

Had not this puzzle /riddle/ been solved, what a source of perplexity? What a handle for evil? What a field for sophistry?
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    '' Interest of the public in respect of the number and quality of suits.

    To understand what is the interest of the man of law in respect of the number and quality of suits, and in what respects /points/ it /this particular interest/ stands in opposition to the general interest of the community /to public interest/ it will be necessary in the first place to have a clear view of the dictates of public interest in this behalf /a general utility in this ground/.

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    1. The dictates of public interest /utility/ are in the first place that of the primary arrangements made by the substantive branch of the law viz: by the creation and allotment of rights, the infraction may be as far as possible.

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    3. That among /of/ the instances in which such infractions take place those in which adequate satisfaction /the number of those in which satisfaction/ comes to be /finds of being/ administered may /shall/ be in proportion to those in which it fails of being /comes to be/ administered as small /great/ as possible.

    4. That of /among/ those in which in addition to or in place of satisfaction, punishment is appointed /stands -----/ the number of them in which punishment comes accordingly to be administered may in proportion to those in which it fails of being administered, be for any given length /short space/ of time say a year taken by itself as great as possible.

    5. That among those in which punishment stands thus appointed, the number of those in which it comes accordingly to be administered, may for any given long space of time, say a century, the number of infractions /instances of infraction/ in the course of that same space of time being also given, be in proportion to those in which it comes to be administered, as small as possible.
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    '.5. Ends reducible to the three collateral ones. avoidance to give birth to punishment, rights, or satisfaction, improper in quantity or quality.

    On a strict review taken on the abovementioned specific ends of procedure (main and collateral) with their correspondent evils, the list of them may be pat to appear incompleat. Punishment, it may be said, besides being due or undue in respect of the occasion on which and the person on /to/ whom it is applied, may be due or undue /is liable to be undue/, in respect of quantity and /or/ in respect of quality. Suppose then that being applied on a proper occasion, and to a proper person, it be applied in undue quantity - that is in a quantity over and above what is due, or in a quantity falling short of what is due - or, though the quantity be unexceptionable yet[?] in an undue quality - i.e. in a mode and form /shape/ different from that which has been appointed /any which has been allowed of/ by the legislator. In each of these cases there is something wrong done by the Judge: in each of these cases the main /general/ end of procedure has been to a certain degree deviated from: a failure has taken place pro tanto in respect to the giving effect to the intended dispensation and production of the substantive law. Yet in any one of these with what propriety can it be said /how can it be said with propriety/ punishment has been applied, where undue?

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    If the difference is /were/ in quantity in quantity merely, quality remaining the same, there would not be the smallest difficulty. Substantive law imposes, that is requires to be imposed, by the Judge afine to the value of ten weeks labour: the fine actually imposed by the Judge amounts to the value of but five weeks labour. Non-administration of punishment where due: the amount of ten parts[?]: administration of punishment not due to the amount of 5 parts: deduct the amount of the one aberration from that of the other, remains non-administration of due punishment to the amount of 5 parts. And so in regard to rights (in a non-penal case) and satisfaction.

    Where the difference is in quality, the quantities not being of the same quality, and being therefore incommensurable, the situation is not quite so easy

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