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CERTAINTY NECESSARY FORM of com. Law product of
This not to be inserted - for this
doctrine with respect to Burglary
& Theft is given in opinion by
all the Judges tho' extrajudicially
along with the exception respecting
murder.
A reader will here naturally enough ask, What is after all this the actual doctrine upon this head? in the
present state of the [Common] Law I answer I cannot tell: nor shall I, nor will any
body else be able to tell here any more than in a thousand other instances with any
so long as it remains undetermined how great a number of precedents make the pract
unchangeable, since in spite of precedents it is sometimes charged, as well as how gra many
determinations constitute a doctrine irreversible, since some of them have been reversed;
so long in short as any part of Penal Jurisprudence continues in the fleeting & questionable
form of common Law. The mischief is, that if here is error, or rather if it
should be corrected that there is error (for that is all that it can amount to) under the
common Law, there is no method to correct it: for the purpose is effected, not by any permanence
decision of the Judge, but by the fleeting & uncontrollable unexaminable verdict of a Jury, acting
the tacit encouragement of a Judge — It being For it is a rule established according to the
, that after a verdict once passed, if in favor of a criminal nothing
can be done in any way to bring him to justice, tho' every thing could be done to withdraw
him from it: if in favor it being the first business of our the English<add> the present system Jurisprudence to denounce the
& disproportionate punishments, & the next to take endeavour care that they shall not be
be ineffectual inflicted. And this is what is stiled Humanity.
The whole doctrine upon this topic
together either to no purpose or to a bad one
violates very much the simplicity of the
Law.
(a natural consequence where
the obscurity of the punishment
established is he effect rather
of want of reflection than want
to lay down establish expedients to
facilitate their being )
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jeremy bentham |
[[watermarks::[gr with crown] [britannia with shield motif]]] |
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