12 Jan y. 1817

Necessity Cat.

1. Theory

§ 3. Forms of Government

5

Q. 8. An instance or two, if you please, of a practical effect produced by the exercise of this power,

A. Here you have /Take them then/ two together. A law gives to a {Judge} certain species of Judge the power and obligation of dealing so and so by a /every/ thief. The power of appointing all Judges of this description /species/ is suppose possessed and exercised by a Monarch: the power thus exercised is an example of the power of classification: before a Judge thus appointed, a man is produced, charged with being /having been/ a thief: the Judge upon hearing the case on both sides determines that the man is or is not a thief: here is another instance /example/ of the power of classification. In these two cases You see how different in its effects upon the party in relation to whom it is exercised is this species of power to which however in both cases the same denomination and that without any impropriety is attached: you see moreover that, without any thing of that appearance of vigour which shews itself upon the face of imperative power, its efficiency may be still greater.

Q. 9. Oh yes: great and that in proportion to the extent of the /genera/ common /or general/ denominations or[?] which are marked out and filled by it. And what I see moreover is that over /throughout/ the whole field of legislation correspondent to /along with/ /by the side of/ a branch of imperative power may run a branch of the power of classification: and that throughout that whole field as often as in the expression given to a law a name substantive occurrs that substantive being not a mere proper name but a common one - whether the object denominated be a real entity such as a person or a thing, or a mere fictitious entity such as a power, a right, or an obligation - in that common name we have a receptacle capable of affording a real lodgment to a branch of the power of classification. Could you without too much trouble help in to an instance in which an effect of considerable importance has been produced by so indirect an exercise of this indirect species of power as that which has for its object a subject matter belonging to the class of things?