2 May 1805

Evidence

Introd. Ends

Ch

'. Quality

If the difference is /were/ in quantity in quantity merely, quality remaining the same, there would not be the smallest difficulty. Substantive law imposes, that is requires to be imposed, by the Judge afine to the value of ten weeks labour: the fine actually imposed by the Judge amounts to the value of but five weeks labour. Non-administration of punishment where due: the amount of ten parts[?]: administration of punishment not due to the amount of 5 parts: deduct the amount of the one aberration from that of the other, remains non-administration of due punishment to the amount of 5 parts. And so in regard to rights (in a non-penal case) and satisfaction.

Where the difference is in quality, the quantities not being of the same quality, and being therefore incommensurable, the situation is not quite so easy

The legislator says, inflict a fine to the value of ten weeks labour, the Judge inflicts a whipping of ten stripes. The aberration /contravention/ is here more perplexing to him who thinks of it, and /as well as/ more distressing to him who suffers under it. If it be a man whose nature or condition in life prepares him for corporal punishment of this kind, such as a man of any class in China, or a military man in the condition of a private Soldier in most if not all European countries, the change may be less or perhaps even[?] not at all affective: if in those same European Countries it be a military man in the condition of an officer or other man of liberal education, the mere change in quality may be more afflictive than any increase in quantity.