date

16 June 1804 Evils - Causes
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.
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    Thus stands the case where the authority by which the purpose of the law is defeated is the same as that from whence it issued. It is much worse /the iniquity receives again a prodigious aggravation/ where the provision of substantive law being the work of the legislator - the legitimate legislator the decision - and at length the rule of law by which it is thus defeated, is the work of him who in duty ought to be but the agent the servant of the legislator. I mean the Judge.

    In every such decision two enormities are involved - 1. a /the/ breach of constitutional subordination /obedience/: the work of the /a/ superior authority /magistrate/ overthrown by the inferior /his own subordinate/: the law of the genuine legitimate legislator repealed /over-ruled/ in effect by a spurious one - by a magistrate who not only has not the legal /lawful/ power to make that law but has not the power so much as to make any law: who pretends himself to no more than the jus dicere - who disclaims and professes to regard with abhorrence the jus dare: an act of usurpation committed by one whose business it is to repress and punish it in others whose hourly /daily/ function and prime glory is obedience.

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  • Title: [[clx. 293] 1822 July 5 Constitut]
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    ? Factitious honor extravasated - its peculiar evils.

    The use /case/ where the honor /distinction/ in question has been received in the way of succession, as /after the manner of/ property in a pecuniary shape is an altogether curious one.

    Wastefulness and absurdity and wastefulness vie with each other in the composition of this institution /arrangement/

    This is among the fruits of Monarchy. As on the one hand in a Monarchy ill-seated /mis-seated/ punishment abounds, so on the other hand does mis seated reward - in both instances the contempt with the people and their happiness are regarded, alike manifests itself.

    Aptly or rightly seated punishment is aptly or say rightly seated in so far as the individual on whom it falls has been a party /a partaker/ in /to/ the misdeed. Punishment is unaptly seated or say mis-seated in so far as it falls on any individual who has not been a partaker in the offence.

    Of Mis-seated punishment the absurdity as well as the atrocity is such as can not fail to be /to such a degree flagrant as not to be capable of remaining un/recognized by every /any/ mind not blinded by terror or terror-begotten prejudice. By the same reason /With as much justice/ as any one non-misdoing individual were punished so might every other.

    /Understand by mis-seated/ punishment has been termed vicarious, where a party /an individual/ who has been a partaker in the misdeed not being subjected to punishment in respect /consideration/ of it, one who has not been a partaker is subjected to punishment in his stead.

    /Understand by/ Mis-seated punishment may be termed extravasating: where /in so far as/ an individual or individuals who were not partakers in the misdeed are subjected to punishment in conjunction with those who were.
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    1. Factitious honor extravasated - its peculiar evils.

    1. In addition to peculiar wastefulness, do. absurdity.

    2. Admitting it to be well seated when primarily seated, by extravasation the honor is rendered mis-seated: thereby matching with mis seated punishment.

    3. Punishment and reward aptly seated when seated in the agent in question: unaptly-seated or say mis seated in so far as in any other.

    4. Of misseated punishment the absurdity as well as atrocity is recognized by all not blinded by terror or terror-begotten prejudice: if any one besides the Agent, then all should be so dealt with.

    5. Misseated is either

    1. Vicarious -

    2. Extravasated.

    6. Absurd justification of misseated punishment: viz. extravasated. Much naturally so is unavoidable: therefore add factitious.

    7. Inducements to the addition: 1 self-preservation: 2. rapacity, i.e. desire of depredation

    8. Further cause of the propensity - principle of blind imitation: subject of imitation to God. Habitual to God is such misseated punishment: therefore so should it be to man. Apply this to medical practice.

    9. Not irrelevant to reward is what is thus said of punishment. Waste of evil leads to waste of good: they belong to the same mind and the same form of Government: they spring from the same root: │   │ for those at whose expence it is made.

    10. Vicarious reward too palpably absurd to be any where exemplified (Quere?) Extravasated, not: applied to factitious honor in particular.

    11. Plea, if any, for factitious honor, extra meritorious service by the individual honored: in so far as the honor is extravasated, this plea is flagrantly false.

    12. Applied to punishment, the extravasated part had a pretence, and even a portion of sufficient justification - Not so, when applied to reward in this shape.

    13. Plea as applied to punishment, conduciveness of forfeiture to disablement and depredation.

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