date

2 May 1805 Evidence Introd
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.
Similar Items
  • Title: [2 May 1805 Evidence Introd]
    Description: 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.
  • Title: [16 June 1804 Evils - Causes]
    Description: 16 June 1804

    Evils - Causes

    Ch. Undue Decis. Causes Factitious

    An aggravation of this breach of faith is the punishment - the mis-seated and therefore unjust punishment - that is in this case tacked to it. The mere loss of the cause is in effect a punishment - and in proportion to the importance of the cause - to the losing party in question and the progress made in it - a severe one. The pecuniary burthens usually inflicted under the name of punishment - under the name of fine - are in many instances as it were nothing to it. Where costs i:e. those of the successful party are added (as in almost all cases they ought to be added) to those of the unsuccessful party - the pressure of the punishment receives another aggravation. But the delinquent author of the delinquency the transgression such as it is, is - who? not the party on whom the punishment is thus imposed, but another person - and a person on whose conduct it is not in the power of the party to regulate. The author of the transgression is always either 1. the Judge: 2. some judicial officer subordinate to the Judge: 3. or the professional agent of the party. The punishment is therefore of that essentially iniquitous though unhappily but too common kind which in all cases may be termed mis-seated - and in some cases, and in the present in particular /of which the present is one/ vicarious punishment: punishment of one man for the transgression of another: punishment of a man for transgressions in which he has had no share.

    Over the conduct of the Judge or any of his subordinates, it is sufficiently manifest, that the party thus defeated /punished/ for their transgression could not have /exert/ the smallest influence. (a) Over that of his own agent - his Attorney or his Advocate, it might to a hasty glance seem otherwise. But why is it that a man in a business of this sort, throws himself into the arms of an Agent? It is because he is unable /under a disability - a compleat disability/ to transact it for himself. And what is the system of law that is most eager thus to punish a man for the transgressions of his agent? the law /system/ that has done the most to render it impossible for a man either to transact his own business of this kind, or so much as to obtain the minutest insight into it: the law that has taken care to render it not simply difficult but absolutely impossible either to transact his own business himself, or to controul in any of the respects in question the conduct of this object of his forced choice.

    (a) In the Roman Law, [...?] are usually the work of the Judge because the conduct of the procedure is here in reality, as it ought to be. [...?] in English Law.
  • Title: [29 July 1805 Evidence Introd]
    Description: 29 July 1805

    Evidence

    Introd. Jurisprudent[?]

    Ch. II. Vices

    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.