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