29 July 1805

Evidence

Introd. Jurisprudent[?]

Ch. II. Vices

The distinction vanishes /is alike evanescent/ when viewed from another point of view. This [let it be allowed] is a penal law and not a remedial: this other a remedial and not a penal one. Be it so: but in the class penal class the sufferance produced by a law to the convict, may be a fine [...?] the value of half a days worst paid labour: in the remedial class a suffering may rise to the height /level/ of the largest fortune, not to speak of imprisonment /[...?] and its punishment/ in name indefinite in effect perhaps for life.

The mask of humanity having been thus taken off, there remains lawyer craft in its genuine colours, with its real and perpetual end in view, confusion, uncertainty, and factitions made business. Whether the law be destined /In the individual case in hand/ to be construed away or no, there sounds /has its/ the principle of strict instruction to afford a pretence for construing it away, and there sits the professional lawyer with his hundred heads and as many hands [all open to the reception of fees for the attempt] the hands all grasping for the accustomed fees, the heads all in readiness to enter upon the experiment, and in the character of licenced accessories after the fact, to snatch /rescue/ the malefactor, if possible, out of the hands of justice.

But in a bosum of which it is a duty to feel for /look to/ consequences suppose humanity to consist in the blind and constant endeavour to diminish the number of penal inflictions without regard to consequences: in the breast of a vetran surgeon /let it be/ suppose it to be the ordinary effect of humanity, to have the patient to perish rather than put him to the pains of having his wound dressed. If it was rule or any other by humanity that he was induced to construe away the statutory law, in prejudice of the declared will of his lawful superior the legislator, observe whether this sort of strictness adheres to him in the construction /interpretation/ put upon that sort of law in the spinning of which he and his brethren are so assiduously employed.