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27 Jun 1809

Paley 67 Per Paley proper that (not attending to the common law cases of punishment of death) for legislature to fix upon cases meet for punishment for to the Judge it may without danger be left to apply, or, in the exercise of his levity not to apply the punishment to the offence
But the impossibility of distinguishing whi right from
wrong, and thence on the first of the possessor of the powers
of administering capital punishment, the happy impossibility of making a wrong a censurable use of it, receives
from the reverend Doctor further and further demonstration
as at every step less arduous

"However" (continues he); "although it be necessary to
"fix by precise rules of law, the boundary on one side is
(though without the possibility of ascertaining beforehand
the propriety or impropriety of the spot point at which it is fixed)
the boundary on one side (continues he) that is (continues
he) "the limit to which the punishment may be extended,
"and also that nothing less than the authority of the
"whole legislature be suffered to determine that boundary
and assign those rules; (an admission Note he would have known that might not
better things than to turn have been quite so readily made had it occurred to him the Reverend Doctor
how vast an extent the punishment of death has been
carried by what is called common Law - i.e by Judges
without the intervention of the every legislature) "yet the instigation
of punishment," (continues he) the exercise of lenity, may without
"danger be entrusted to the executive magistrate, whose
"mutable and indefinite circumstances, both of the
"crime and the criminal, which constitute or qualify
"the malignity of the offence."

8 Forgetting that the non-exercise of this lenity amounts to the punishment of death
"The exercise" ? yet: of lenity? entrusted thus,
and without danger? Yet: the exercise; and without danger
on one of the two sides, it must be confessed: viz on the the side on which it can not operate. But the
non-exercise? And is not the non-exercise, as compleatly
within the power of the persons in question as the exercise? [+]
[+] And what is that non-exercise but death? putting to death?

Identifier: | JB/107/204/001
"JB/" can not be assigned to a declared number type with value 107.



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law versus arbitrary power (a hatchet for dr paley's net)

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text sheet

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c4 / e4


jeremy bentham


th 1806



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andre morellet


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