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DIVISION - All Laws Penal 10
which constitutes him an the proper object of the extraordinary Penalty: Punishment
Now upon examination it will be found This reasoning objection will upon examination be found equally applicable to most
of the other Acts classed under this division the division in question: title objected to: that is to all except
1st 1 Where the Act is in it's nature such that ordinarily at least the person perpetrator tho' forthcoming can make no adequate compensation: this is where positive and original is — by again the instances of Homicide Arson Mayhem where the national fund of possessions accumulated for the purposes of [external or [whether internal] Common defence
defence that is where of which the whole public or if it be thought the expression be more precise thought more accurate, certain persons for the purposes of the public & not for their own in particular are ye proprietors is the subject of the invasion; or 2dly where the Act, that it may have
as yet invaded the happiness of no one in particular, yet by endangering the security has
in a degree invaded the happiness of all. as in the case of some species of Treason & Treasonable public misdemeanors savoring of Treason
or lastly where by the artificial but necessary contexture of Civil Social Policy, the
happiness of [a large and indefinite number of Individuals is involved in the whole Society is involved more closely in that the security of one or a few
that of one]. particular individuals that in that of any one [out] of the promiscuous body besides [remaining.] as in the case of other species of Treason.
Since then neither the circumstance of of having a penalty annexed to them nor that of the
the peculiar publicity of the wrongs they prohibit forms the distinctive Characteristic
of those regulations which compose are classed under the Title of Criminal
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Laws or Penal Laws, what is that characteristic? Tis not therefore the object of the Action prohibited, or any other circumstance belonging to the directory part of the Law which distinguishes such Laws as are called Penal from such as are not so: but the bare difference of the Sanction: nor which differences such as deserve to be so from such as do not but the quantity mischief produced by that action. Clearly The answer is, nothing but
the extraordinary anomalous magnitude of the Penalty it's Sanction [necessary and useful
in many instances, useless and unnecessary as I shall In this
of this work have but too many occasions to shew, in many The impossibility of subsequent redress is the only good foundation for the use of augmentation previous
So that to draw it transfer a Law from out of the other classes into this out of the other classes and invest it with the property introduce transfer it into this
of this there needs nothing but to give it that encrease of inequity
[as too familiar experience can testify] tho' in the mean time the Act which
it prohibits, certainly for certain has not changed it's nature.
Wheresoever therefore then within the ample circumference of Law Jurisprudence we see
a command or prohibition Law attended enforced by a Sanction exceeding the universal
one of costs and restitution, that Sanction excess brings it within the compass class
of our design. Penal Laws and within the compass of the present design treatise which has design of a Treatise bearing the Title which this does:
Class for it's subject: And it is this due adjustment apportionment of the Sanction to the Law
which forms & constitutes the distinctive object of such a Treatise. v. a note in p. 6
INTROD. Laws Civil X Criminal. [B R]
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