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3 March 1816
Punishment. Ch.1 Definition and Distinctions
27
3. Most common cases
of punishment, those in
which the evil result
is not ultimately, but
only mediately,
intentional. p.10.
28
In these cases ultimately
intentional, result
a negative or a positive
act.
29
Offence positive, object
of punishment negative
and vice versa.
Positive & negative
not less important in
law, especially penal,
than in electricity
& galvanism. p.10.
30
Affines to punishment
I. where the offence is
negative positive –
1. Amendment or reformation
2. Disablement (relative)
3. Determinant (by example)
4. Self defence
5. Self preservation
6. Safe-custody
7. Restraint.
31
II – where the offence
is positive negative.
8.1 Compulsion or
restraint
9.2. Torture
10.3. Compensation
(satisfaction pecuniary
exaction of)
11.4. Taxation.
32
III. Whether the offence
be positive or negative
12.1 Coercion
13.2. Obligation
14.3. Burthen (imposition
of)
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3338 or 1
1. Amendment or reformation
as prevention
of similar offences on the
part of the delinquent by
application made to his will. This supposes
considerable malignity
in the disposition
indicated by the
offence and is scarce
applicable to negative
offences. p.19
3439 or 2
2. Disablement not applicable
to negative offences. p.12
3540 or 3
3. Determent is applicable
to positive & negative. p.18
41 36 or 4
Determent applies to persons
at large as well as
the delinquent.
It involves not such
supposition of general disorder
as reformation does. p.27.
42 or 5 37.
Amendment the result,
quarter operated upon
the will: punishment,
correction. p.18 p.22.
38.
Disablement the result,
quarter the powers p.13 p.21
43 39 or 6
Disablement temporary
as by imprisonment &c:
or perpetual, as by mutilation. p 22
40 44 or 7
On others, cause of determent
not actual punishment
but the eventual
expectation of it. p.22
45 41 or 8
4 Self defence when the
object of an act of punishment
is prevention of
an individual act attempted;
– the act being
supposed dangerous to the
being or well being of the
punisher.
Ex. gr. For offence against the
life of the sovereign death or
imprisonment inflicted
in that view. p.14.
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46 or 9
5. Self preservation.
6. Self defence supposes
an act of mischievous
tendency by a human,
or at least a sensitive
agent.
5. Self preservation designates
on the part of
the agent the endeavour
to prevent mischief from
whatever source and
is therefore employable
wherever self-defence is. p.24.
53 or 1.
5. Relation between safe
custody & punishment.
By one operation both
effects are producible.
But at the same time
the quantum demanded
will not always be the
same for both purposes. p.25.
54 or 2.
Ex gr. To the same extent
in which for the
purpose of punishment
imprisonment is inflicted,
safe custody
must be provided for. p 25
55 or 3.
But where safe-custody
i.e. eventual forthcomingness
is the sole purpose, it
is not necessary, nor therefore
right that of the
evils produced by imprisonment
for the purpose
of punishment any more
should be produced than
are necessary to secure
forthcomingness. p.25.
56 or 4
Hence two mementos
1. Where forthcomingness
is providable for with
less evil, employ not imprisonment.
2. Where to this purpose
imprisonment is necessary,
clear it of all needless
evils. p.26
56(a) or 4(a)
Example, – by the panopticon
principle, chaining
&c might be saved. p.26
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46 or 1
5 Relation between self-defence
&c. & punishment.
To both purposes one act
may serve: viz. p.22.
47 or 2
1. Of one act which has for
its direct & ultimate object
self defence punishment
may be a collateral
result. p.22.
48 or 3.
2. Of an act which has
for its direct object punishment
– self defence
– self security – may on
the part of a ruling power
be the result. p.22.
49 or 4
Case to which this coincidence
is confined.
Offence, as offence importing
danger to the authority
of rulers: punishment
may here operate in their
favour as self defence. p.23.
50 or 5
Be the offence what it may,
an act of punishment in
any shape, is, if considered
as inflicted by the
community at large an
act of self defence: viz.
against evil in the particular
shape for the
prevention of which the
punishment is employed.
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punishment ch. 1 definitions and distinctions |
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evil mediately intentional / offences positive |
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