10 May 1808

Note

I. Reasons

Ch.1.

§.2.

Ablative incidents

In the framing of the respective lists of influencing circumstances as above, much will depend upon the structure and usage of the particular language employed.

1. In English several wrongs will be found that admitt of no justification: but this peculiarity is the result not of the nature of the case, but of the nature of the language. Thus Murder will admitt of no justification: - why? because the non-existence of every circumstance to which that effect is by law allowed is included in the import of the term - in what Locke would have called the nominal essence of the offence.

In this case are several others in the technically legal part of the English language: for example Larceny, and Rape.

2. Whether the term extenuation or the term aggravation be employed will depend again upon the nature of the language.

Thus in case of homicide. If murder be taken for the simple, the principal, the standard offence, the circumstances that reduce it to manslaughter will come in, in the character of extenuations: if manslaughter be taken for the standard offence, circumstances that raise it to the rank of murder will come in in the character of aggravations.

In one language a wrong shall be raised into an offence of a different denomination by a circumstance of aggravation which in another language shall not be productive of that effect. In England where the author of the death is servant or wife of whose death he or she is considered as contributing, the offence is raised from the denomination of Murder to that of Petty treason, and the punishment accordingly receives what is regarded as an enhancement. In Roman law as in Roman language no such effect by either of these circumstances.

On the contrary, where the author of the death stood in the relation of son or daughter to him to whose death he or she is considered as contributing the offence is raised from the denomination of homicide to that of parricide a change of denomination, a correspondent change in the punishment was engrafted. Parricide from the Roman imported into the English language, have not been admitted into the language of English law.