28[?] April 1805
Evidence
Introd
Ch. 10 Collateral
' Collateral [...?]
' Vexation from
Ch. Ultimate collateral ends /end/ of procedure - avoidance of vexation from misdecision to the prejudice of the defendant.
Besides the lots of vexation which, in greater or less number, and each with more or less weight, fall /have been seen falling/ upon every person /individual/ whom the institution /exhibition/ of a legal demand places in the condition of a defendant, there is one /one remains to be spoken of/ which consists /is constituted/ of the burthen which it is the ultimate and direct object of the demand to throw upon him the burthen of bearing the punishment sought by it to be imposed upon, administering the satisfaction or seeing it be[?] administered at his expence - or in a purely non-penal case, conferring or seeing conferred at his own expence the particular right which is the object /constitutes the subject and object/ of the demand.
In each case, suppose the burthen the obligation due - suppose it of the number of those by the imposition of which the arrangements and predictions of /delivered by/ substantive law in that behalf will be made to take effect, thus vexation at the end of the [...?] account is not to be placed to the account of great[?] evil or inconvenience: for, if /suppose/ it to be not outweighed by some good produced by that the same operation, the fault lies in the substantive law by which the burthen was imposed, not in the adjustive branch of the law, the perfection of which consists in giving effect and fulfilment to the utmost to the predictions /arrangements predictions and engagements/ contained in the substantive branch wherever they may be: provided always that the mass of incidental inconvenience produced by the adjuctive law - by the course of procedure be not so great as to preponderate over the good produced /attached/ to the fulfilment of the substantive.
29 April 1805
Evidence
Introd
Ch. 10 Collateral
' Vexation from ultimate decision
But suppose (what in here and there an instance must happen, spite of all that the legislator can do to prevent it) - suppose that, at the end of the cause, and in consequence of the demand that gave birth /commencement/ to it, the burthen sought by it to be imposed, falls on a person in respect of /relation to/ whom it is not due: falls upon the defendant, whereas either there exists no person at all in respect of whom it is due, or if there be any such person or persons, the defendant is not of the number. In this case, the good aimed at by the article of substantive law not being accomplished, the vexation in /the production of/ which the suit terminates, is not preponderant: but either the whole or at least a portion /one/ of it is so small[?] evil, clear and [...?] /the vexation thus produced by the ultimate decision, when given in favour of the demand /demandant/: and consequently against the defendant/.
To avert this evil will of course be among the objects to which the legislator will direct his aim. It is however not the principal aim: for, if /to accomplish/ such aim, if it be not to suffer any such demand ever to be exhibited: which is as much as to say, either to have no substantive laws at all, or what comes to the same thing, not in any instance to suffer the predictions delivered by them to be fulfilled - in a word not to suffer the laws ever to be executed.
Ultimate collateral end of the System of procedure - avoiding to impose on /throw upon/ a person, in whose instance it would be undue[?], the burthen the imposition of which is sought /prayed/ for by the demand.
Vexation produced by ultimate misdecision to the prejudiced of the defendant's side of the cause: imposition of an /ultimate/ obligation, where undue.
Ultimate collateral end of the system of procedure - avoiding /preventing/ to impose obligations where undue - non-imposition of undue obligations when undue
+ Decision - ultimate incidental before this
29 April 1805
Evidence
Introd
Ch. 10 Collateral
'. Vexation from ultimate decision
For the sake of the illustration afforded by symmetry, it seemed necessary that the indication of this counterpart and antagonist to the general direct end of procedure should be brought to view. But the image presented by it while thus taken in an undivided mass, the image presented by it will be but faint and indistinct, untill upon its depiction the three branches which it envelops are seen /discovered/ rising /springing/ out of it.
First or modification branch of the undue vexation produced by misdecision to the prejudice of the defendants side of the cause: - administration of punishment when undue
Second or modification branch. Collation of rights (thence imposition of correspondent non-penal obligation) where undue
Third or modification branch - administration of satisfaction (thence composition of correspondent obligation) where undue.
Correspondent ends /particulars/ of the system of procedure - /branches of the ultimate collateral end:/ 1. Avoiding to administer punishment where undue: 2. avoiding to confer rights, where undue: 3. avoiding to administer satisfaction, where undue.
5 May 1805
Evidence
Introd.
Ch. 10 x Capricious Ends
Composed with Ch. Take Ends in general
Ch. 10. Of the Capricious /phantastic/ ends of Procedure.
'.1.
A phatastic end, an end either irreconcilable with the [...?] legitimate ends or of which the [...?] to those ends is not brought to view.
Every object of which there is occasion to speak must have a name to speak of it by /by which it may be spoken of/: every article which there may be occasion to class to aggregate to others must have a classical name /appellative/ to receive[?] it.
Of the legitimate ends of procedure an ample delineation has been given: - of the sinister end or ends a delineation likewise /also/ of no inconsiderable amplitude.
On taking a survey of any /the/ established System of procedure of all most any country arrangements will /may/ at the same time be found, of which it will be clear that they never could have been directed to the attainment of any of the legitimate ends - or at any rate that they have not in any point of view any the smallest tendency to promote the accomplishment of any of these ends, at the same time that neither do they appear by any particular marks appear to have been directed to the attainment of any sinister end. Let the end to which they appear in this case to have been directed be distinguished by the name of capriciously-chosen ends, or to save words, capricious ends.
I speak of an arrangement as directed to the attainment of a capricious end, when the object to the accomplishment of which it is directed, is declared /avowed/ or otherwise manifested but when no connection which it has either with any /one/ of the legitimate ends or with any modification of the /any/ sinister end, as above characterized, is discernible.
5 May 1805
Evidence
Introd
Ch. 10 x Capricious Ends
Examples of this sort of end may be met with in but too great abundance in almost every system of established procedure: the difficulty is rather how to avoid meeting with. Of this sort are afforded by a great part of all those propositions with which under the name of maxims or principles books of practical established law so much abound.
[...?] a few from Left's[?] Principia Juris.
This classification /The mode of classification/ here pursued is not altogether unanalogous to that which in another work may have been observed as applied /to have been brought to view as applicable/ to the contents of a body of law in general or of the substantive branch of it in particular. Legitimate end, the principle of utility: spurious ends, the principle of asceticism, which is opposite to it /the other/ /the former/: the principle of caprice, which when applied to the device[?] and application of the maker of reward and punishment or that of reward has been termed the principle of sympathy and antipathy[?], not uniformly opposite to the principle of utility, but independent of it, and on that account liable occasionally to run counter to it. This /To so many modifications of this, considered/ as applied to substantive law, correspond the several maxims of principles - maxims the observance of which is /constitutes/ of so many of the ends here called capricious ends, as applied to adjuctive law.
5 May 1805
Evidence
Introd
Ch 10 x. Capricious Ends
An end is in every instance a good, or supposed good something that presents itself as such. By the end I mean in each such case the imaginary good proposed to be attained by the maxim delivered in each case.
If not under this head under the head of this sort of end, to what other head - to what other sort of /the head constituted by the name of/ end can they be referred? The instant that in the case of any such maxim any connection /relation/ of subserviency can be chosen between it and any other sort of end, legitimate or sinister, it shall be referred to in one of those two classes /catalogues/, and struck out of this one.
30 April 1805
Evidence
Introd
Ch. 10 x Capricious Ends
This to Ch. Capricious Ends Yes Enforced[?] with- Ch. False Ends in general
' Subordinate ends - Compliance with arbitrary maxims the propriety of which being imaginary /undemonstrable/ is gratuitously assumed.
As the legitimate end has its subordinate ends - as the general /[...?]/ propositions expressive /[...?]/ of the general end, include in their embrace the particular propositions expressive of the several particular /correspondent/ ends: - so has the sinister general end /so is it with the sinister end/
The sinister end has for its immediate subordinates, the several particular ends /objects/ consisting in the observance of a countless multitude of maxims, which after having been made by the hands, are the /so many/ objects of the idolatry of the man of law.
/Of/ These maxims had they any real value had they any worth in them when weighed in the scale of utility, the value would consist in this - viz: that the arrangements presented /recommended/ by them were in some assignable way or other, subservient to the ends of justice - But when examined in that view[?] no such subserviency in them can be found. What then is to be done? What is wanting to them in the way of support in point of reason and utility must be made up in prejudice. Accordingly their excellency is to be assumed: and being assumed boldly is to be trumpeted /proclaimed/ clamorously upon all favourable occasions. All attempts - the very idea of enquiring into their intrinsic worth - of bringing them to the test of reason and utility is by every imaginable contrivance to be discountenanced. They exist /are current? therefore they are good: they have been current for a length of time: therefore they are still better: the age in which they began to be current was in comparison of the present a dark[?] and barbarous age: - be it so: they are /they are but/ so much the fitter for setting the law to present times[?]. By any standing /age/, falshood ripens if not into truth, into something better: nonsense ripens, if not into sense, into something more useful and respectable.
The science of ipse[?] dixits[?].
30 April 1805
Evidence
Introd
Ch Sinister Ends
'. No[?] Collateral ends
Of these maxims - the effusions of imbecility wandering in a chaos of its own creation - of these technical crudities with the mass of which volumes upon volumes might be filled, two classes may be distinguished. Those of the one have respect to substantive law: those of the other, to adjutive[?]. To each a test may be given - by which its pretensions to the character /proxy[?]/ of rationality and utility may be tried. In the instance of /As to/ lack of them as bear reference to substantive law /any shewn[?] by/ this test consists in their tendency where applied to practice, that is in the tendency of the arrangements which they are employed to recommend, in respect of the production or promotion[?] of assignable pains and pleasures. Such of them as bear reference to adjuctive law, try those by their subserviency to the ends of justice: to the ends of justice, not as dreamt of /figured in the dreams of/ rhetoricious, but as laws[?] distinctly brought to view.
Examples of maxims constituting so many capricious ends disparate from and unsubordinate to the legitimate end of procedure and its several branches
1. Nemo[?] debit scepsum[?] accusare. Improperly expressed not fit to be observed in any case: in practice not adhered to with any tolerable uniformity or consistency
4.[?] Non bis in idem. Not fit to be observed in any law Referred to in French Law. More steadily observed in English law where its observance is more mischievous than in French. It affords a sure receipt for impunity, to every criminal who can contrive to keep a witness out of the way for a few hours. 3. Nemo debit [...?] [...?] in [...?] [...?]. +
+ Give the rest of [...?] maxims and [...?] Axioms.
2 May 1805
Evidence
Introd. Ends
Ch.7. Quality
Ch.7. Collateral Ultimate ends having respect to Quality: viz: of punishment, rights, or satisfaction
A question here presents itself - The substantive law /The legislative power/, having prohibited an act having converted an act into an offence attach punishment to it, in a certain shape, and that it shall be punished in a certain way /punishment, of a certain kind shall be annexed to it/: the judicial power - the substantive law attaches punishment to it not in that way /shape/ /punishment not of that kind/ but in another: and so in regard to rights and satisfactions What is the relation of this case (it may be asked) to the preceding ones? By this means are the preceding ends, any of them, disfulfilled? - and if any, which of them. I answer yes: two at once. By every such judicial decision two infractions at once of the arrangements of substantive law are committed, yet /but/ two such infractions, that are in substance and effect the infraction of the law is less trouble[?] to the ends of procedure taken all together, than if either of them had been infringed alone: two infractions in form - in logical verbal form: but less than one in political effect - in pathological /real/ effect - in a word in substance. Two aberrations at once from the straight line of rectitude: two abberations, yet so connected and related to each other, that being in contrary directions the one of them operates as a correction to the other, and the result consists not of their sum but of their difference.
Had not this puzzle /riddle/ been solved, what a source of perplexity? What a handle for evil? What a field for sophistry?
2 May 1805
Evidence
Introd. Ends
Ch
'. Quality
If the difference is /were/ in quantity in quantity merely, quality remaining the same, there would not be the smallest difficulty. Substantive law imposes, that is requires to be imposed, by the Judge afine to the value of ten weeks labour: the fine actually imposed by the Judge amounts to the value of but five weeks labour. Non-administration of punishment where due: the amount of ten parts[?]: administration of punishment not due to the amount of 5 parts: deduct the amount of the one aberration from that of the other, remains non-administration of due punishment to the amount of 5 parts. And so in regard to rights (in a non-penal case) and satisfaction.
Where the difference is in quality, the quantities not being of the same quality, and being therefore incommensurable, the situation is not quite so easy
The legislator says, inflict a fine to the value of ten weeks labour, the Judge inflicts a whipping of ten stripes. The aberration /contravention/ is here more perplexing to him who thinks of it, and /as well as/ more distressing to him who suffers under it. If it be a man whose nature or condition in life prepares him for corporal punishment of this kind, such as a man of any class in China, or a military man in the condition of a private Soldier in most if not all European countries, the change may be less or perhaps even[?] not at all affective: if in those same European Countries it be a military man in the condition of an officer or other man of liberal education, the mere change in quality may be more afflictive than any increase in quantity.