6 Aug 1804

Procedure

Ch. non-homologation

Thus when the law (jus) relative to theft is made out /brought into existence/ in the way and in the shape of statutory law: how stands the matter where the law (jus) relative to the same sort of offence /forbidden conduct/ is brought into existence no allowance then in the way and in the shape of jurisprudential law? (jus juris prudential.) A man is seen or suspected to have been committing an act which in /to/ the conception of the party entrusted presents itself as belonging to the sort of conduct expressed by the word theft. Expecting to find the like conception on the part /prevalent in the mind/ of the judge, he causes the supposed delinquent to make his appearance in presence of the Judge: the Judge actually entertaining that same conception, and finding the fact /matter of/ - the act of taking the thing in the circumstances (the psychological circumstances) which are understood to give the denomination of theft to the physical act of taking) proved to his satisfaction, sentences the offender to be punished with a certain number of stresses, which stresses are accordingly inflicted. Here then is an individual found on an individual occasion to have performed /exercised/ an individual act, and that of such a nature, that the judge thinks fit to inflict upon the individual /him/ under the name of punishment, a suffering in consideration os such his act, and by so doing to treat it on the footing of an offence: to treat him as in obedience to the prescription of an acknowledged legislator, he would have treated him, had there been in existence an article of statutory law incurring the offence of theft, explaining what sorts of acts /acts/ shall be understood as belonging to the sort of offence so denominated, and requiring or authorising the Judge to punish with stresses leaving the mode of infliction and the number not at his discretion, the individual act in question being understood by him to belong to the sort of acts comprehended under that definition, and thus mode and numbers of the stresses to be warrented[?] by the latitude of discretion given to him as above.