[clx. 295]

1822 July 21

Constitut Code Rationale

Securities

6. Factit. honor. Exclusion of

extravasated

Where, for the waste made of reward in this /the/ shape /of factitious honour/ any thing in the shape of a justification is pleaded /adduced/ it is the remuneration, and by means of the remuneration, the production of extra-meritorious public service that is stated as the good produced by it. But, where the person /individual/ to whom the reward is given is a person other than him by whom the supposed service is supposed to have been performed, the plea such as it is, has /is/ mainifestly no /without/ application, and such is the case, in so far as the reward is in a state of extravasation

In the case of punishment, at the time when the extravasated part /portion/ /mass/ was instituted /added/, the addition had if not a sufficient justification, at any rate a partial one and at the worst a pretence: in the case of reward, reward in the shape here in question there is not so much as that pretence.

In the case of punishment, forfeiture being the punishment /made/, there was in the first place in the case of offences against government care /need/ of self preservation on the one part, need of disablement on the other part - disablement for the prevention /to prevent the commission/ of the like offences at the same hands: there was on the one part, as above need of self-preservation as above; on the other hand need of intimidation /deterrition/, as a further means of prevention should the other fail.

Thereupon what may here be said is this - whatsoever fear has for its object evil in the case of its borne immediately by himself a circumstance /source/ from which it can not fail to receive an addition is evil about to be eventually suffered by a party dear to him a party who is the object of his sympathetic affection in his breast. To the first consideration the answer is - that to that purpose temporary and conditional expropriation is sufficient, perpetual and absolute, needless and therefore excessive: to the other, that after a certain degree of propinquity the affection if it exists is too weak to be operative: and that without the help of this /so unappropriate an/ addition, punishment may be heaped up to such a degree as to be plainly excessive, and by its manifest excessiveness rendered uninflatable, and thence unoperative.

Go on to shew that these pleas do not apply to extravasated reward in general and in particular in this shape.