date

[clx. 193] 1821. April 20.
[clx. 193]

1821. April 20.

First Lines

Judiciary

/Procedure

Non penal and Penal/

Aspect of the cause or suit - non penal or penal.

By a non penal cause, understand that sort of excuse in which, in addition /over and above/ to the suffering unavoidably attached to the burthen of relief redress or compensation, no additional /ulterior/ burthen is for the purpose of punishment imposed.

A cause is rendered penal in either of two ways by substitution or by addition made of punishment to relief or compensation: by punishment substituted to relief or compensation or added to it.

1. Where evil has been done, but no assignable individual to whom it applies to the exclusion of all others /any other/ there is no individual to whom in particular relief can be afforded or compensation made. In this case, punishment must, if any, be the shape in which if in any, the inducement to forbearance must be presented.

In this case are the several offences appertaining to the class intituled offences against individuals.

Causes of this description may be stiled penal on account of an individual specially injured.

2 Causes penal by reason of aggravation. In these causes to the burthen of compensation, if there be an individual specially injured, suffering, for the purpose of punishment, is added. If there be no such individual, punishment exceeding that which is added in a cause which is penal only for want of an individual injured is employed.

To those penal causes which are such by reasons of aggravation, the adjunct criminal may be applied.
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  • Title: [1821. April 17. First Lines]
    Description: 1821. April 17.

    First Lines

    Penal Law.

    Exacted at the expence of the evil doer

    , compensation necessitates suffering: exacted in

    consideration of, and in proportion to, the evil done by him, that

    suffering, by the whole amount of it, operates as punishment.

    In the first place, Compensation for the party injured; in the next

    place, over and above compensation, punishment for the benefit of the

    public — punishment for appeasement of the wrath of the offended and

    exasperated wrathful monarch — such is the arithmetic

    of tyranny. Punishment including,

    to the profit of the monarch, the exaction of the

    whole of that matter by which compensation to the individual injured might

    have been afforded; after that, compensation or no compensation to the

    individual injured.

    Such is the order, the method of tyranny. Compensation by one course of

    procedure; punishment by another and a different course of procedure;

    reformation, by health given to the soul by a third and different course of

    procedure — such is the arithmetic of lawyercraft —

    confededrate partner and instrument of tyranny; of

    lawyercraft in its most rapacious character, and elaborated part —

    the character and goal of the English lawyer.

    Compensation and satisfaction are synonymous. Of the word compensation the

    psychological

    import has its root in the physical idea of

    weight: compensation is weight for weight: satisfaction is giving enough

    for what has been suffered: enough of good for the evil that has been

    suffered: in such sort that the weight of the

    good in the seale of enjoyment shall be equal to

    the weight of the evil in the seale of suffering.
  • Title: [1821. April 17. First Lines]
    Description: 1821. April 17.

    First Lines

    Penal Law.

    Exacted at the expence of the misdoer /evil doer/, compensation necessitates suffering: exacted in consideration of, and in proportion to, the evil done by him, that suffering, by the whole amount of it, operates as punishment.

    In the first place, Compensation for the party injured; in the next place, over and above compensation, punishment for the benefit of the public - punishment for appeasement of the wrath of the offended and wrathful /exasperated/ monarch - such is the arithmetic of tyranny. Punishment including, the exaction to the profit of the Monarch, the exaction of the whole of that matter by which compensation to the individual injured might have been afforded; after that, compensation or no compensation to the individual injured.

    Such is the order, the method of tyranny. Compensation by one course of procedure; punishment by another and a different course of procedure; reformation, by health given to the soul by a third and different course of procedure - such is the arithmetic of lawyercraft - confederate partner and instrument of tyranny; of lawyercraft in its most rapacious character, and elaborated garb - the chararcter and garb of the English lawyer.

    Compensation and satisfaction are synonymous. Of the word compensation the psychological import has its root in the physical idea of weight: compensation is weight for weight: satifaction is giving enough for what has been suffered: enough of good for the evil that has been suffered: in such sort that the weight of the evil /good/ in the scale of enjoyment shall be equal to the weight of the evil in the scale of suffering.
  • Title: [10 July 1804 Procedure & Evidence]
    Description: 10 July 1804

    Procedure & Evidence

    Note

    Evils causes

    Intricacy

    The causes /suits/ by far the most common of any are as follows

    1. In the superior criminal class /department of procedure/ - theft - with or without the circumstances of aggravation which it ----- it ---- robbery housebreaking or burglary. Among crimes punished by the English law with the -- mode if ---- called felony, unclergyable or clergyable, the number of individual crimes of the above description committed in a year is at least 7 /20 or 10/ times as great as that of all other felonious crimes put together.

    2. In the inferior criminal or penal class /department/ - assault - (or injurious words spoken or written the number of individual offences of this description taking into account those prosecuted for in what is called the civil mode as well as those prosecuted for in what is called the criminal mode would probably found superior to all other offences under the ---- of felony prosecutable for one or other of those modes.

    3. In the non-penal class /department/ debt for goods sold or for money lent on a bill or note of hand and delivered by a shop-keeper to a consumer, the number of these suits commenced could perhaps be found 30, 40 or 80 times as great as that of all other non-penal causes put together But in each of /every one/ of these species of causes the case is most commonly at the utmost or very near the utmost point /pitch/ of simplicity.

    1. In the case of theft there is frequently no more than a single witness the owner of the good alleged to be stolen, or suppose another or two to be added the complexity thereby added to the case is, in respect of the additional quantity of time thereby required by the operation of which the evidence is the subject matter, too inconsiderable to be worth taking into the account /noting for this purpose/.

    2. In the case of assaults and verbal injuries the same observations apply without any difference worth insisting on.

    3. In the case of goods sold and delivered to a consumer upon credit, if at the shop, there will be the master shop-keeper if his testimony be admitted or at any rate his journey-man: if delivered elsewhere, the porter with or without the corresponding evidence derived from the evidence of the Book-keeper confirmed and ----ed by the ---- of his books