date

29 June 1804 Procedure 24
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
Similar Items
  • Title: [28 June 1804 Procedure E 22]
    Description: 28 June 1804

    Procedure E

    22 (1)

    Ends

    Ch.1.

    '.5. Ends reducible

    '.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?

    And so in respect of collation of rights - and rendering of satisfaction.
  • Title: [29 June 1804 Procedure 25]
    Description: 29 June 1804

    Procedure

    25 (4)

    Ends

    '.5. Ends reducible

    Not that in the case of punishment wrongful[?] not in quantity but in quality, the error in quality, ought, in this extended point of view to be regarded as a matter of indifference. It is the advantage and the recommendation of compound[?] modes of punishment, that they are capable of being made commensurate to each other: of simple modes it is the disadvantage - that in general /with reference to each other/ they are incommensurable. In this case though they can not be said to be unequal in quantity, neither can they be said to be equal,

    Let the proper punishment, the punishment presented by the legislator be imprisonment for a year: let the punishment im/un/properly substituted to it by the Judge, the punishment made undue in quality, be a fine of ,100. Although the pecuniary circumstances of the party were known, much more when they are unknown, it can not be said that the punishment thus undue in quality, was /is/ in quantity either too great or too little. At the same time /Yet/, that a considerable degree of evil may have been produced by the substitution - a considerable degree of the efficacy of the propert punishment destroyed by it, will appear plain enough from this circumstance; in all cases of a rich and powerful though secret or at any rate unpunishable, accomplice, or set of accomplices, the punishment if it be pecuniary may be reduced to nothing: if by the same forbidden act by which the known agent /discovered actor/ suffers viz: in virtue of such his punishment a loss to the amount of ,100, the secret instigator and protector makes a gain of ,200, the efficacy of the undue /improper/ punishment thus substituted to the property one[?] amounts to nothing. The ,100 if instead of being paid to him out of prison, it had been promised to be given to him to support and comfort him in prison for the appointed time might possibly (it may be said), have been equally efficacious. Possibly: but it is not certain that a man will accept of any sum to live a year in prison, as it is that he will accept ,100 to pay ,100 when he has a pecuniary recompense for it besides.
  • Title: [29 June 1804 Procedure C 15]
    Description: 29 June 1804

    Procedure C

    15 (6)

    Ends

    '.3. Partic r Collateral termination[?]

    For the sake of uniformity, viz: for the purpose of enabling these three particular ends to be spoken of with the greater facility in [...?] with those which will successfully be brought to view, there will be a convenience in bringing to view three evils as respectively opposite and correspondent to the /these/ above three specific ends. Each end may in this case /way/ be said to consist in the negation or avoidance of its oppostie and correspondent evil. In the former case /mode/ the end (i.e. the proportion cumulative of the end) will be /was/ brought to view in what nay be called its positive or affirmative form /shape/ or dress /garb/: in the other / this other mode, it is brought to view/, in a negative form.

    That[?] main End in the affirmative form - application of punishment where due. The same third end in the negative form - avoiding the evil consisting in the non-application of punishment, where due.

    Second main end in the affirmative form. Collation of rights where due The same third end in the negative form - avoiding the evil consisting in the non-collation of rights, where due.

    Third Main End in the affirmative form - administration of satisfaction where due.

    The same third end in the negative form - avoiding the evil consisting in the non-administration of satisfaction, where due.