JB_160_153.xml

Title: [1821. April 6. First Lines]

Description: 1821. April 6.

First Lines

It is now perhaps rendered sufficiently manifest that between the matter of the penal code and the matter of the civil code a general separation will require to be kept up and that in theorder of enunciation it will be required that the penal code should stand first. And what the relation is between the matter of the penal and the matter of the Civil Code: and why it is that though, in so far as they are distinguishable from each other the place of the matter of the civil code is nearer than that of the matter of the penal code to their common end, and, in that point of view, stands foremost in the order of importance, apt, in the order of enunciation of it is in the matter of the penal code to stand first.

Of the matter of the penal Code, the designation made is not compleat, until a designation has been made of all the sorts of acts which, by it, are dealt with in the character of offences. Of the matter of the civil code, the efficiency would be throughout as nothing were not the several acts, by which the distributions made by it are violated, dealt with on the footing of offences. yet there is no such correspondency between the one sort of matter and the other as to render it convenient that both together should be amalgamated into one and the same Code. For though there are some offences for the full and adequate description of which abundance of the sort of expository matter above spoken of is necessary, as, for instance, the offences by the creation and punishment of which protection is afforded to property, yet property is but one out of several endowments to which protection is afforded: and some there are to the protection of which, by appropriate arrangements of penal law, no such voluminous masses of expository matter are requisite. Every man, for example, has, on certain conditions, and in certain modes, a right to protection at the hands of law against such acts as are injurious to it. But, for the designation of his title to his person, or of his title to such protection for it, no such details are necessary as in the case of property.

And the like may be said with regard to reputation.

JB_160_152.xml

Title: [1821. April 6. First Lines.]

Description: 1821. April 6.

First Lines.

Hence it is that, in the field of law, command occupied a much greater extent than

is occupied by invitation. Between the idea of command, and the idea of eventual

punishment, the connection is inseparable. Thus it is that the character and form of

penality are given to the great /principal/ mass of those arrangements /the directive

rules/ by which the distribution of benefits, as well as that of burthens, is

effected. The matter of the Civil Code is, in its form, little else but a sort of

opposition of the terms employed in the commands delivered by the penal code.

Thus to give effect to the distribution made of property against the several acts by

which it is invaded - usurpation for example, or theft, or endamagement, the law must

afford the means of knowing what is each amn's property, and, for this purpose,

employ some such word as titles to denote the several effeicient causes of it. But so

/multiplied/ long every where is the list of the different sorts of titles, and so

unavoidably complicated and voluminous the description of the modes in which they may

be acquired and lost, that to insert all this matter of detail in the body of the

penal code would give an altogether disproportionate bulk to the matter of the

different sections which necessarily belong to it, and in particular the several

sections in and by which the several offences that have been distinguished and

created /acts which have been distinguished and erected/ into offences have been

described. Hence, from the several passages in which, in a penal code, any such word

as title occurs, reference will be made to the division headed with some such word as

title in the Civil Code. So again of the offences enumerated and defined in the penal

Code, non-performance of contract must necessarily be one. But as of services the

variety is infinite, so of services to the rendering of which a man may seek to

oblige himself by contract the variety is great: correspondently great on the other

hand is the variety of cases in which, notwithstanding the entrance made into tis or

that contract, it is not fit that the sanction of the law should be employed in

enforcing the performance of it.

It

037_023.xml

Title: [1821 April 15. First Lines]

Description: 1821 April 15.

First Lines

Means

1 Distributive

3 Security

Where /Were/ nothing further necessary to the purpose, the list of these several definitions, (considered as being so many instruments employed in the process of affording, security, against these several /so many/ acts, by the exercise of which, in so far as they are exercised /security/ is broken in upon and lessened,) might without any apparent incongruity /impropriety/ be allotted to the branch of Law here in question. - viz the Civil or Distributive Branch. But such are the temptations by which, in the instance of each such /exciting /stimulating/ / offence, men are liable to be invited to the exercise of it, that unless, for the purpose of restraining them from the commission of those acts respectively, inducements of the nature of punishment were employed and announced, every such definition so sent abroad wothout support would be a dead letter and as such be without effect. Penal Law is the name given to that /therefore the/ branch of Law which occupies itself in the distribution of burthens to the intent of their having the effect of punishments: to each act to which a place is given in the list of offences as designated by their several denominations and definitions, its appropriate punishments or assortments of punishments. Thus it is that so much of the matter of Law as is occupied in the affording of security in these its several modes is universally and with indisputable propriety considered as belonging to the branch of Law denominated Penal Law.