JB/042/432/001

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1824. July 22
Constitutional Code

+ 3
Copd
3

Ch. XII Judiciary collectively
§.17.

Art. 5. Retroactive effect, on what conditions in which cases When
by exercise given to the Judge's sistitive function the execution,
to be given to a portion of law as it stands, is refused,
happen that the effect of such refusal the effect will be liable to be retroactive: disfulling
thus one an engagement, which had been taken though, as supposed through oversight,
had been entered into by the law. Here comes a dilemma
by the law. In the
of the Judge. If he gives Giving execution and effect to the law as it stands,
to by the supposition thereby the Judge, by the supposition renders himself, in his own conception, accessory to the commission
of an injustice: if he refusing so to do, he disfulfills
the an engagement entered into by the letter of the law, and thereby also committs an injustice:
weakening to a certain degree, weaken it may be thought found the confidence reposed by the people in the
general character of the general trustworthiness of the law. But that which the people look to at the hands of the Legislature
and the Judiciary together, is the fulfilment of salutary ordinances,
and no others: not the production of any mischief, of which
by the admission or omission of this or that word in a law, may will: if
be the result through inadvertence or otherwise is capable of being produced.
execution and effect be given to
What may therefore naturally happen is — that by giving execution and effect to
the law portion of law in question the a severe shock may
would be given to the public confidence, than by the refusal to
give it forbearing so to do.

Art. 6. In this Under this difficulty, for minimizing evil, the the Judge will do that which
Judge will take such course as shall have been indicated by the
the circumstances of the individual case. advance of his doing,
towards resulting from the law. Examples
are as follows —

1. Case 1.: suppose as above §26 a penal one. The law so inappositely
penned, as to subject to punishment a medical practitioner, who,
seeing a person attacked in the street by a disorder, for to the case
of which immediate bleeding is necessary or contributory, has accordingly
performed on him that operation. [1]
[1] By an adversary he
is prosecuted under this
law. By the Judge, execution
of it suppose is refused.
Now by this refusal, is produced

By Here, by giving to the practitioner in question an exemption from the obligation of this law, a retroactive effect, is produced:
a punishment, which, according to under the letter of the law an adversary of the
law had a right to claim an infliction of it has charge, or prevented from
being , and, in consequence in the breast of the adversary, a pain of disappointment
is produced. Less will be the evil composed of this
pain, than the evil, composed of the suffer punishment, if inflicted on the practitioner,
by whose intervention
a life has been preserved,
and by whose punishment
the public mind
would naturally be impressed
with sympathy, as towards
ind
the sufferer, antipathy as towards all those concerned in the production of the suffering, and terror in each ones own and that of his neigh friends; in respect of their exposure
to the operation of laws so framed.

Identifier: | JB/042/432/001 "JB/" can not be assigned to a declared number type with value 42.
Date_1	1824-07-22	Marginal Summary Numbering	5-6
Box	042	Main Headings	constitutional code
Folio number	432	Info in main headings field	constitutional code
Image	001	Titles
Category	text sheet	Number of Pages	1
Recto/Verso	recto	Page Numbering	d3 / e3
Penner	jeremy bentham	Watermarks	j whatman turkey mill 1824
Marginals	jeremy bentham	Paper Producer	admiral pavel chichagov
Corrections		Paper Produced in Year	1824
Notes public	"copd"	ID Number	13355
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