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10 Apr. 1803
Ch 3
Evidence
Omitt in Evidence?
Ends
That the results termed inconveniences of the first order are respectively of an ineligible, mischievous nature - belong to the account of evil - of pain actual or probable or (what corresponds to it) less actual or probable of pleasure, is already (it is presumed) or will soon be rendered sufficiently evident.
No 1. The non-application of Punishment, where due, will be an ineligible result, because in a comprehensive view a mischievous result /one/, on account /by reason/ of the danger it induces of the non-attainment of these more than equal ponderating goods /mass of goods/, the attainment of which is the object, to which the law appointing the punishment was or ought to have been, and is therefore to be presumed to have been, directed: viz: Example, reformation, incapacitation for fresh offences, and compensation for the mischief of the past offence: the cases always excepted, in which punishment viz: the lot of punishment in question, though not inefficacious with reference to the above respective ends, is improper on some other of the four accounts: viz: as being either needless, groundless or too unprofitably expensive.
N o 2. Punishment applied where not due, is, ex vi termini, an ineligible, a mischievous result.
N o 3. Non-application of satisfaction, where due, is also, ex vi termini, a mischievous result.
N o 4 Application of satisfaction where not due, is a mischievous result, by reason of the obligation necessarily concomitant, and the unballanced lot of pain with which the imposition of such obligation is of course attended /[...?]/.
Note
i.e. prevention of similar offences on the part of persons other than the offender to whom the punishment is applied - See Letters to Lord Pelham Lett. 1. p.
Reformation, i.e. prevention of similar offences on the part of the person to whom the punishment is applied: but by taking from him not the power, but the disposition with respect to the commission of them. ibid. p.
See Introd. p. Legisl. Vol.[...?]. p.
Note
A lot of punishment though groundless, because the offence on account of which it has been inflicted has in fact not been committed, may notwithstanding be efficacious with reference to the end of example: that as to reformation there is /may/ /will/ in that case no room for it, and as to incapacitation, no use. Even with a view to example - i:e: to prevention by determent, though it may not be inefficacious, yet being groundless it is on that account needless. And no sooner is it known to have been groundless than in addition to the mischief of the first order, of which whether it be ill or well grounded it is in an equal degree productive it becomes productive of a minschief of the 2 d order - alarm, which how much soever inferior in intensity is in an indefinite degree superior in extent.
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Title: [10 Apr. 1803 Ch. 3 Evidence]Description: 10 Apr. 1803 Ch. 3 Evidence Omitt in Evidence? Ends N o 5. Non-collation of rights, where due, is also ex vi termini a mischievous result: it being understood, that where the collation of them is due, the pain attendant on the corresponding /attendant/ mass of obligation is not prepollent, nor so nuch as equi-pollent, with respect /refernce/ to the pleasure or other advantage resulting from the collation of the right. N o 6. Collation of right /rights/ where not due is a mischievous result, in the case and for the reason exhibited under the head of satisfaction (N o 4) as above. N o. 7 &8. Expence; and also vexation in other shapes. Both these results are seen at first glance to be /to belong/ ex vi ter minis to the account of mischievous ones. But in these instances, to the certain mischief of which to a proportionate amount they can not in any case fail of being productive, are added as will be seen presently, a lot of contingent mischiefs in virtue of the tendency they have to become productive of the six severe inconveniences of the first order, as above explained. Shew [...?] now[?].
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Title: [1821. April 17. First Lines]Description: 1821. April 17. First Lines Penal Law Cases unmeet In relation to punishment, considered as so mauch evil, employed as a means for the excluding, as far as possible, without greater evil, evil considered as producible by misdeeds thus converted - converted by the connection thus established into offences, three main questions on every occasion present themselves - 1. In what cases shall punishment be aplied - 2. In what proportion - 3. In what shape - 1. In what cases shall it be applied? A question of the opposite aspect - by the question in what cases shall it not be applied - a shorter and clearer /more commodious howsoever indirect/ answer may be given to this question than by a direct one. 1. Where it would be groundless - 2. Where it would be inefficacious /needless/ - 3. Where it would be unprofitable /inefficacious/ - 4. Where it would be unprofitable /needless/ - These are the cases in which /In each one of these cases, supposing them realised/ punishment itis evident manifest would be unapt: of all these cases, it may be said, they are unmeet for punishment. Case the first - where punishment would be groundless: Where the application of punishment would be unapt. Necessarily involved /included/ in the notion of punishment is the notion of misdeed done, of offence given. Of the sort of operation by which,for the exclusion of greater evil, evil is purposely produced, the operation called punition or more commonly punishment, is but one mode. For, taken by itself, Government is in itself one great /vast/ evil: only except in so far as evil already produced by it, is done away or lessened, can any exercise of Government be performed - can the power of Government be in any way exercised, but evil is produced by it. But wherever, by evil thus produced, greater evil is excluded, the balance takes the nature, shape, and name of good, and Government is justified in the production of it. In this case unless productive of good in some other shape /in the account of good and evil, the evil produced and applied in the shape of punishment would unless it excluded some greater evil, or produced some preponderant good be all loss. Thus it is that where evil applied as punishment wd. be groundless, what will often happen, is - that evil produced, though designedly, is not causeless - is not unjustifiable
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Title: [3 Transportation 19 June 1802 Transportation]Description: 3 Transportation 19 June 1802 Transportation by distance without reformation seems to have been the only real object in this choice. — 2. Misbehaviour the result of non-reformation not being regarded so as it was out of Britain & unseen. 3. The contrivance was in every instance either unjust or inefficacious. 4. Injustice of the expedient — Historical sketch since the Australian transportation into the American colonies has been coming into use — and has been marked out in lots of different length with great apparent care. — 5 The Act of 1799 affords a particular example of this care. — 6 The American transportation had partly the objects of punishment — partly failed. — 7. Reformation being difficult and incapacitation by local exclusion appearing easy, when a fresh (port was to be looked out for, New South Wales recommended itself on the score of distance. 8. Distance was the only circumstance that could have recommended it. 9 In idea the expedient was a simple one. 10 But its influence on the system of transportation punishment, as laid down by so many Acts, was extremely complicated. — 11 In an oblique way, (which will be delineated presently) the punishment in almost all cases of transportation underwent an increase — prodigious and unprecedented. 12. In the almost obsolete practice in regard to Mayhem, damages found by the Jury may be increased by the Judge but the benefit goes to the party injured. 13. It is no justification to say the right of return remains — since the physical power is taken or meant to be taken away more effectually than by taking away the right. — 14 — The existing law of transportation is as much broken in upon as the law against murder would be be by throwing a man into a dungeon & leaving him to starve. — 15 The mode of producing the effect was particularly objectionable, as well as the effect produced. The thing would have been bad if done regularly by Parliament. — 16 But it was done by a deceit in Parliament, powers given for continuing transportation on its former footing being applied to the putting it upon a quite different footing. 17— Even in the Act of 1787, in which New South Wales was mentioned, there was another deceit on Parliament which will be laid open further on. 18— The punishments, being still, by the letter of the several laws, of different lengths, while in effect they were to be all of one length. Hence a continued mocking of justice on the part of Parliaments as well as Judges. — 19 With respect to convicts already under sentence the exclusion had all the iniquity of an ex post facto law. 20 21 If but a month had been added by direct order to Hulk confinement — what an outcry! — 22 Tho' the bondage is not thus meant to be made perpetual, yet the banishment was: which is the only part of the punishment expressly warranted by law. 23 Under the Penitentiary system the lot of the Convict would not have been exposed to any such uncertainties and obscurities. 24 Tho' the banishment was intended by the contrivers of the system to be perpetual, the intention has succeeded but imperfectly. 25 The use of the plan, and the security afforded by it in this respect, grows less and less, as the colony in other respects is more and more improved. 26 — and return is most easy to the most dangerous characters.
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