29 July 1805

Evidence

2 [...?]

Statutes according to this division are either penal or remedial. Penal are to be construed strictly: meaning by strictly /as appears by the exemplification/, the taking advantage of some particular word or words of /in/ the statute to avoid giving effect in this or that instance to what appears to have been the will and intention of the legislator upon the whole: here then the mark set up by the legislator is fallen short of by the Judge.

Remedial statutes are to construed liberally. Here the mark set up by the legislator is to be overshot by the Judge. In a certain view /With a view to a certain and according to the measure of his faculties, The legislator the legislator, has made a law to a certain extent. On occasion and pretence of this law, the Judge, with a view to the same or to a different end, takes upon him to make another law /on [...?]/ to a further or collateral extent.

Under this nomenclature /this distinction/ and this division which they /made by them/ in large part after the [...?] statutes not to say the whole/ there is no saying which part of the mass of statutes is marked out from misconstruction.

For the misconstruction put upon penal statutes, a regard for humanity [the [...?] of lawyers a /an English lawyers/ humanity,] is the pretence: [for, whatever be the [...?] particular rule /becomes of other rules/ upon the carpet, the rule of hypocrisy is never deviated from].

A pretence? yes: how should it be other than a pretence? 1. [In the first place] the distinction between penal and remedial is mere vapour. Unless in so far as it is remedial, what penal law of the final class any thing but /further than/ an act of tyranny? Till the system of legislation is perfect, in practice as well as theory, the mass of penal law in every nation will and must involve such acts of tyranny. That in an usurpation and temerity can any serviceable /useful/ remedy and /any/ advantageous substitute be found, for any such immemorial and [...? ...?] tyranny? But can the /any/ legal tyranny on the part of the supreme authority, find any advantageous corrective in the arbitrary power of that which should be its sub-ordinate.

Note

Unless in so far as affording a gratification to an inordinate vengeance, or even more causeless antipathy, (a case indeed but too frequently exemplified) is the /has been/ sole object of the law, what in any instance is punishment /good for or proposed to be [...?] for/ of any use, but in the character of a tyranny? And of /what sort of efficacy can be possessed by/ what effect were any arrangements of law, call it remedial or any thing else, unless it have punishment, /more or less as bound/ to back it?