1821 April 17th.
First Lines.
Penal Law
\PS\. Penal Law.
The penal branch of Law has for its object and occupation the giving execution and effect to the civil or distributive branch as also a portion of the constitutional Branch: Such is the benefit conferred or sought to be conferred by it. But no benefit can have existence but with and by means of, a correspondent burthen. No profit without loss: without expenditure and expence which is voluntary loss. What remains is, that in quantity and value the benefit - the profit - be as great, the burthen - the loss - the expence - as great /small/ as possible.
For rendering it such, keep in mind this radical allusion. The community is the body politic. Offences /Misdeeds/ are its disorders /diseases/. Occupied on the Penal Branch of Law, the Legislator is, its physician /medical practitioner/ - its surgeon. In a surgical operation the cure is te benefit: the pain of the patient the burthen. The operations of the surgeon have for their object, the occupation, the rendering the cure as speedy /prompt/ and as complete as possible, at the expence of as little pain as possible.
The surgeon when he cuts into the bladder of the patient for the extraction of a stone - does he say the patient deserves to be so cut? not he indeed: by no surgeon was any such absurdity ever uttered.
The possessor of political power - the magistrate - the legislator - has, at all times, in all places, uttered it without a blush. Why? because, at all times, in all places, till yesterday, and in the new world, the magistrate - the legislator - such is man's nature - have been tyrants: tyrants having, each of them, for the objects of his acts as such - not the greatest happiness of the greatest number - but his own single greatest happiness.
1821. April 17.
First Lines.
Penal Law.
In the origin from whence he deduced the word, indicative of the demand for, or propriety of, the punishment - the sufferings - he was occupied in the application of, he found a pretence for tyranny:- for tyranny, exercising itself in the taking of vengeance. The term which is not applicable without hazarding the production of useless punishment to an indefinite extent, where evil in the shape of punishment is to be applied, is, and ever was, in use to be employed, without hazard of any such evil, at any rate where, on the occasion of a contract for service between individual and individual, good, in the shape of reward, was to be applied: the service has been performed: on /By/ the one part, the work contracted for has been done - the service has been performed: at the hands and at the expence of the other, title has been made to the correspondent service: the pay - the reward - has been deserved.
Hence, arise two radical positions /rules/ -
Objects which punishment ought never to propose to itself are - 1. vengeance: 2. Compensation, in so far as the nature of the case admitts of the application of it for the evil produced by the misdeed: 2. prevention of the commission of similar misdeeds in future, as well by the misdoer himself as by all other individuals taken at large.
Exacted
1821. April 17.
First Lines
Penal Law.
Exacted at the expence of the misdoer /evil doer/, compensation necessitates suffering: exacted in consideration of, and in proportion to, the evil done by him, that suffering, by the whole amount of it, operates as punishment.
In the first place, Compensation for the party injured; in the next place, over and above compensation, punishment for the benefit of the public - punishment for appeasement of the wrath of the offended and wrathful /exasperated/ monarch - such is the arithmetic of tyranny. Punishment including, the exaction to the profit of the Monarch, the exaction of the whole of that matter by which compensation to the individual injured might have been afforded; after that, compensation or no compensation to the individual injured.
Such is the order, the method of tyranny. Compensation by one course of procedure; punishment by another and a different course of procedure; reformation, by health given to the soul by a third and different course of procedure - such is the arithmetic of lawyercraft - confederate partner and instrument of tyranny; of lawyercraft in its most rapacious character, and elaborated garb - the chararcter and garb of the English lawyer.
Compensation and satisfaction are synonymous. Of the word compensation the psychological import has its root in the physical idea of weight: compensation is weight for weight: satifaction is giving enough for what has been suffered: enough of good for the evil that has been suffered: in such sort that the weight of the evil /good/ in the scale of enjoyment shall be equal to the weight of the evil in the scale of suffering.
1821. April 17.
First Lines
Penal Law.
Satisfaction has been distinguished into lucrative and vindictive. Lucrative is satisfaction in any shape, considered otherwise than with a view to vengeance. Vengeance is vindictive satisfaction is satisfaction in any shape, considered with a view to vengeance.
In no shape or quantity should suffering be created for the single purpose of affording satisfaction of the vindictive kind.
Only, when /if/, for the sake of others the community at large, punishment is inflicted, if there be any shape by which, without encrease of suffering to the wrong doer, satisfaction to the individual wronged, may be administered, that shape may be employed.
By that shape, the apprehension of the eventual punishment may, moreover, be rendered the more impressive upon the mind of him on whom /on which/ the temptation to do the wrong is operating.
To.
1821. April 17.
First Lines.
Penal Law
To the word punishment, lawyercraft, in confederacy with religious fraud - /and/ religious hypocrisy - in confederacy with, and in subserviency to, monarchical tyranny, has, of late years. applied /furnished/ a synone/y/m - viz visitation - penal visitation -
In the language of the English translation of the Bible, visitation is employed as synonymous to punishment Synonymous? But in what case? - where the misdoer being a man, the ruler is the invisible almighty. Considered in this point of view, sin is the name employed or the designation of the misdeed.
By the word visitation, substituted by Lawyer's Rhetorick, to the word punishment, the following ae the notions insinuated, the intimations conveyed.
Of the Almighty invisible, whose throne is in heaven, the Monarch is the visible representative here on earth: the representative, according to the certificate given to him by Blackstone, invested with no small part - with as large a part as is necessary for the accomplishment of the indisputable object of his government - the greatest happiness of him in comparison of whom all others are but as creatures to their creator - invested, in a word, with a compleatly sufficient /adequate/ part of his divine constituent's attributes. By the alledged offender, a misdeed has been committed. By this misdeed, the Monarch has been offended. The Monarch, being God upon earth - God with us - the offence is a sin. Sins deserve to be visited. For this his sin, this sinner deserves to be visited. At the charge of him by whom sin has ben committed, punishment is due. Proportioned to the dignity of the offended ruler, should be the magnitude of the
punishment
1821. April 17
Penal Law.
Under the haead of pardon, say - mercy grants pardon upon payment of fees.
punishment: Where the offended ruler is that God which is in heaven, dignity being infinite, that punishment ought to be, and is, in each instance, infinite. Where the offended ruler is that God which is on earth, the punishment ought not to be infinite, it ought only to be next to infinite. Where justice alone consulted, such, accordingly, would be the punishment of this sinner. But, in the heart of that God which is upon earth, and with us, justice has, for her never-failing companion and appeaser, mercy whose other name is clemency. Mercy has for her office /junction/ the rendering of no effect to an amount more or less considerable the decrees of justice. In this, as in all other cases, mercy has interposed, and, after deducting from what has been ordained by justice - what has been subtracted from it by mercy, the balance is what my sentence forms that punishment which my /any/ the sentence is about to declare.
Among the ingredients of this rhetoric, is an ingenious irony: that irony of which the name is sarcasm. In the language of social intercourse, a visit, in the most frequent signification of the word, is a journey made to a man/'s/ in his residence for motives of kindness - for the manifestation of kindness, such, as your sentence declares, is the kindness, the loving kindness, which you - the convict, the offending sinner, have deserved, and deserve at the hands of that God which is in heaven, at the hands of his most excellent and most worthy representative that God which is upon earth and with us - at the hands of me whom you see his representative and servant.
1821. April 17.
First Lines
Penal Law
Cases unmeet
In relation to punishment, considered as so mauch evil, employed as a means for the excluding, as far as possible, without greater evil, evil considered as producible by misdeeds thus converted - converted by the connection thus established into offences, three main questions on every occasion present themselves -
1. In what cases shall punishment be aplied -
2. In what proportion -
3. In what shape -
1. In what cases shall it be applied? A question of the opposite aspect - by the question in what cases shall it not be applied - a shorter and clearer /more commodious howsoever indirect/ answer may be given to this question than by a direct one.
1. Where it would be groundless -
2. Where it would be inefficacious /needless/ -
3. Where it would be unprofitable /inefficacious/ -
4. Where it would be unprofitable /needless/ -
These are the cases in which /In each one of these cases, supposing them realised/ punishment itis evident manifest would be unapt: of all these cases, it may be said, they are unmeet for punishment.
Case the first - where punishment would be groundless: Where the application of punishment would be unapt. Necessarily involved /included/ in the notion of punishment is the notion of misdeed done, of offence given. Of the sort of operation by which,for the exclusion of greater evil, evil is purposely produced, the operation called punition or more commonly punishment, is but one mode. For, taken by itself, Government is in itself one great /vast/ evil: only except in so far as evil already produced by it, is done away or lessened, can any exercise of Government be performed - can the power of Government be in any way exercised, but evil is produced by it. But wherever, by evil thus produced, greater evil is excluded, the balance takes the nature, shape, and name of good, and Government is justified in the production of it. In this case unless productive of good in some other shape /in the account of good and evil, the evil produced and applied in the shape of punishment would unless it excluded some greater evil, or produced some preponderant good be all loss.
Thus it is that where evil applied as punishment wd. be groundless, what will often happen, is - that evil produced, though designedly, is not causeless - is not unjustifiable
1821. April 17.
First Lines
Penal Law
Case 2. Where it is needless. Here the circumstance by /from/ which the evil receives the denomination of punishment viz. misdoing, misdeed offence has place: as such, evil is among the consequences of it. But, by the operation of some other cause, all the relative good that could be done by the evil of punishment, is done without it. In this case, therefore, whatsoever portion of punishment wee applied would be all loss.
Case 3. Where it would be inefficacious. In this case, too, it would be the evil of the offence ever so great, the evil of punishment, though it could not be said to be needless, would however be all loss: to the undiminished evil of the offence would be added the evil of the punishment.
Case 4. Where the punishment would be unprofitable.
Of the evil which, in its totality, would otherwise be produced by the offence, a portion, more or less considerable, would be excluded by the punishment. But the evil thus introduced is greater than the evil excluded by it.
In the three former cases, the evil of the punishment is all loss: in this last case, the evil produced is not all loss, but, after deducting from the sum of what is produced by it, the sum of what is excluded by it, there still remains as a /on the/ balance a net remainder or difference which is so much loss.
Comprehensive and on that account theoretical as the description of these cases may appear, there is not one of them that has not, hitherto to a vast and deplorable extent, had its exemplification in practice. To bring to view /afford/ an indication of every one of them, would be to give an all-comprehensive picture of whatever has been hitherto done on the field of penal law. For the clearer conception of each, all that can here be done is - to afford a simple indication of a few comparatively particular but still too comprehensive examples.
1821. April 17.
First Lines .
Penal Law.
Proportions
Introd. Chs
The proportions which by the above considerations, have been indicated as fit to be established in so far as the nature of the case and superior considerations, if any, admitt, as between offences and punishments, have been stated as follows.
1821. April 17.
First Lines
Penal Law.
Classification[?] Character[?]
Forty years ago, (the year is now 1821.) forty years ago, the /in/ conformity to the lights perhaps somewhat in advance of the ordinary lights of the then present time, an arrangement, having in view the application on that occasion, proposed /the matter of/ of punishment, the several imaginable /possible/ sorts of offences were endeavoured to be discovered, and, to those discovered, denominations were given, and those denominations arranged according to a system /mode/ of arrangement of which the following were, on that same occasion, stated as being the characteristic, and in its leading features to the exclusion of all others that could be given the character of more apt ones, the peculiar properties.