date

2 May 1805 Evidence Introd
2 May 1805

Evidence

Introd. Ends

Ch

'. Quality

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

The legislator says, inflict a fine to the value of ten weeks labour, the Judge inflicts a whipping of ten stripes. The aberration /contravention/ is here more perplexing to him who thinks of it, and /as well as/ more distressing to him who suffers under it. If it be a man whose nature or condition in life prepares him for corporal punishment of this kind, such as a man of any class in China, or a military man in the condition of a private Soldier in most if not all European countries, the change may be less or perhaps even[?] not at all affective: if in those same European Countries it be a military man in the condition of an officer or other man of liberal education, the mere change in quality may be more afflictive than any increase in quantity.
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  • Title: [2 May 1805 Evidence Introd]
    Description: 2 May 1805

    Evidence

    Introd Ends

    Ch

    '. Quality

    Yet even here the substitution, grievous as it is is not be confounded with pure addition: the ten stripes plus the fine to the value of the ten weeks labour would have been still worse. By the suffering /what he suffers/ in person, a man saves the amount of what he ought to have suffered in purse. Assign to the corporal punishment any value in money how great soever, any number of Fortune[?] Ricard's[?] castles of gold the value of ten days labour subtracted from it will always leave it so much less than it would have been otherwise.

    The Judge is disobedient: but his disobedience is not quite so enormous, as if along with the corporal he had inflicted the pecuniary punishment besides.

    The legislator says - inflict a whipping of ten stripes. The Judge inflicts a fine to the the value of ten weeks labour: What is the consequence? The convict acted under the instigation of a rich confederate: who gaining by the offence ten times the value of the punishment /fine/ thus annexed to it, the [...?] to the hand that committed the amount of the fine, and triumphs over the law. The arrangement is as inconsiderate as it is a common one: but a hundred days labour minus ten days labour is less than a hundred days labour undiminished.

    The Judge is disobedient: but his disobedience is not quite so enormous, as if instead of a fine to the value of the ten days labour he had inflicted no punishment at all.

    Rule for estimating the enormity of the transgression committed by the Judge, by one[?] aberration in respect of quality. Reduce in idea, by /according to/ the best of your judgment (your best judgment will commonly be but a random one) reduce in idea the two lots /quantities/ to the same species; and from the greater deduct the less: the difference will be the amount of the aberration, the measure of the transgression. The operation is but a make-shift, but the nature of things affords nothing better.
  • Title: [21 May 1805 Evidence Ch Preparatory]
    Description: 21 May 1805

    Evidence

    Ch Preparatory Explanat

    In a purely penal or a mixt suit the burthensomeness of the operations necessary to secure the forthcomingness and justiciability on the part of the defendant will be greater than in a purely non-penal suit. It is in the character of a general proposition the observation is true: but whatever truth belongs to it, does not belong to /attach upon/ it till after it has undergone large exceptions. In height the scale of burthensomeness extend much further in the case of a penal, than in the case of a non-penal suit. By the unfavourable event of a non-penal suit the defendant can not be subjected to any burthen beyond /greater than/ that of parting with a mass /portion/ of the matter of wealth;(a) by the unfavourable termination of a suit of the purely penal or mixt kind he may be subjected to a burthen of any conceivable weight, up to loss of life, accompanied with the utmost degree of bodily affliction that human[?] nature is capable of enduring, according to the nature of the list of punishments provided by the penal code of the state in which the suit happens to be instituted. In depth the scale of burthensomeness may extend and commonly does extend as far in the case of a purely penal or mixt as in the case of a purely non-penal suit. A fine to no greater amount than a shilling, a portion only of the value of a day's labour of an ordinary hand, is a punishment /the amount of a burthen/ not infrequently imposed under the name of punishment, in English judicature. (a) Sure[?] as to condition in life?
  • Title: [29 June 1804 Procedure 24]
    Description: 29 June 1804

    Procedure

    24 (3)

    Ends

    '.5. Ends reducible

    1. Application of Punishment undue /improper/ in quantity by being too great. This is reducible to application of punishment where undue. Proof. From the quantity actually applied subtract the quantity due, to the amount of the remainder there exists application of punishment where due /the reaminder is the quantity applied where undue/.

    2. Application of Punishment improper in quantity by being too little.

    This is reducible to non-application of punishment. Proof. From the quantity due subtract the quantity actually applied, the remainder is the quantity not applied where due

    3. Application of punishment improper in quality, quantity incommensurable or laid out of the account.

    The evil in this case is composed of the two opposite evils above-mentioned: application of punishment of punishment where undue, and non-application of punishment where due.

    Logically and arithmetically speaking, the evil in this third case will have been twice as great, indeed more than twice as great, as in either of the other two. Morally and practically speaking, it is no less evident, that the first evil, instead of being doubled by the second, will in a greater or less degree have been diminished. The second of the two elementary /component/ operations is like an error in arithmetic, coming in, not on the same side of the account as the first, but on the opposite side. (a)

    Repeat the same process where rights are concerned, and where satisfaction is concered, respectively, the result will be seen to be the same.

    (a) Note (a) on a separate page