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19 Sept 1831
Const. CodeCh. XXV Justice Minister
§ 5 Dispunitive function
(1)
11.
Grounds on which dispunitive
power will
not belong to Justice
Minister but to others.
1. Regard for foreign amity.
Evil from ill-will without
hostility of foreign
power producible
such as would outweigh
the evil from
the impunity.
By the Justice Minister
adequate means
of estimating that
evil will not be possessed:
by the Prime
Minister, yes.
12
2. Ground 2. Regard for
people's amity.
Till the intellect of
the people at large
has risen to a level
with that of their representatives,
such
aversion to the
execution of this
or that law, or such
attachment to this
or that delinquent
may have place that the
good of the joy in case of
remission to the
evil of the chagrin in
case of execution would
overbalance the evil from
the remission. Here then
also the exercise of dispunitive
power belongs
to Prime Minister not
to Justice Do. Reason, as per No 1.
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13.
3 Ground. Multitude of
Co-delinquents.
Here too not to Justice
Minister but to Prime
Minister belongs the power.
Reasons, as per No 1.
In various offences in
hostility to a ruling
minority may be engaged unlimited
multitudes.
Here of all delinquents
punishment or even prosecution
would be impossible.
4 Ground. Service rendered
or expected to be
rendered by contribution
to the conviction of a
Co-delinquent.
Here, not to Justice Minister
but to Government Advocate
of the Judicatory in
which cognizance is
originally taken of the
offence, belongs this power.
Neither to Justice Minister
nor to Judge Immediate
can it: for by supposition
before Judge
Immediate the delinquent
has not yet
been brought in that
character.
2. Cares here requisite.
1. From the convict the information
will be obtained.
2. – Not otherwise.
3. From the convict evidence
be obtained
sufficient for conviction
of as many delinquents
as may be.
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3. Proportioned to the
evil of the offence is the
price thus paid for
future prevention: manifest
the absurdity of
paying this price, when
the benefit can be
obtained without it.
4. This practice, where
known, operates as a
premium on crime.
"I will get men to join
with me" (says a man
to himself): mine shall
be the whole profit of
the offence; theirs the
punishment.
5. Suppose a pecuniary
premium added, payable
on conviction: here is
encouragement offered
by authority
1. for the crime
2. for mendacious evidence.
6. Anglicè, still in
vigour is this practice:
thanks to Judges by
whom through
of the Legislature, legislative
power has been
usurped. To defendant
question by which exculpative
evidence
might be elicited
must not be put?
Why? because it would
be unpleasant to him –
a reason by which
if applied all punishment
would be
abolished – impunity
secured to all crimes.
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15.
In three modes may impunity
be indirectly established:
in two by the legislature:
in the other by the Judiciary.
In the two first modes time
ante prosecutional; in the
3d post prosecutional, commonly
post convictional:
effect sometimes totally remissive;
sometimes but suppressive.
16.
1. Cause in Case 1.
Legislator's want of perspicacity:
effect produced different
from that intended.
2. Examples: penalty pecuniary
only: often not
profit: common this where
the penalty is fixed. In
appearance, the law is prohibitive:
in effect, not only
a licence, but a bounty.
16(a).
How to guard against this
shown in Nomography
– Prodigious
the extent to which
this blindness has been
carried.
Repeated and fruitless
the warnings.
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