2 May 1805

Evidence

Introd Ends

Ch

'. Quality

Yet even here the substitution, grievous as it is is not be confounded with pure addition: the ten stripes plus the fine to the value of the ten weeks labour would have been still worse. By the suffering /what he suffers/ in person, a man saves the amount of what he ought to have suffered in purse. Assign to the corporal punishment any value in money how great soever, any number of Fortune[?] Ricard's[?] castles of gold the value of ten days labour subtracted from it will always leave it so much less than it would have been otherwise.

The Judge is disobedient: but his disobedience is not quite so enormous, as if along with the corporal he had inflicted the pecuniary punishment besides.

The legislator says - inflict a whipping of ten stripes. The Judge inflicts a fine to the the value of ten weeks labour: What is the consequence? The convict acted under the instigation of a rich confederate: who gaining by the offence ten times the value of the punishment /fine/ thus annexed to it, the [...?] to the hand that committed the amount of the fine, and triumphs over the law. The arrangement is as inconsiderate as it is a common one: but a hundred days labour minus ten days labour is less than a hundred days labour undiminished.

The Judge is disobedient: but his disobedience is not quite so enormous, as if instead of a fine to the value of the ten days labour he had inflicted no punishment at all.

Rule for estimating the enormity of the transgression committed by the Judge, by one[?] aberration in respect of quality. Reduce in idea, by /according to/ the best of your judgment (your best judgment will commonly be but a random one) reduce in idea the two lots /quantities/ to the same species; and from the greater deduct the less: the difference will be the amount of the aberration, the measure of the transgression. The operation is but a make-shift, but the nature of things affords nothing better.