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<!-- pencil annotations --> <p> + Inserenda <note>128</note><lb/> Observations</p> <note> V. Penalties <gap/> <lb/> §.38<lb/> 91<lb/> Penalty <gap/></note> <p> There <del>are</del> <add> will be </add> many cases in which it is <hi rend="underline">not</hi> necessary, <lb/> power, <del>sought</del> on the part of the Magistrate, simple<lb/> power without obligation, is preferable to <add> power clogged with</add> obligation.<lb/> Perhaps the <add><del>notion</del></add> apprehension was, <gap/>, if the Magistrate<lb/> were left free, <del> the offender he might be apt to let</del> the <lb/> offender, through <del>careless</del> <add> carelessness</add> or false tenderness on the part<lb/> of the Magistrate, should slip through his fingers. But<lb/> (besides the danger of this hypothetical mischief<lb/> does not seem so great as to warrant the introduction<lb/> of the other which is an unavoidable one) on<lb/> looking further into the Act, it will be found that <lb/> this same course of <del> unmittigiable</del> <sic>unmitigable</sic> <lb/> severity applies to other cases in which there is no <lb/> such demand for it: applying to classes of <add> eventual</add> delinquents<lb/> <del>where</del> who <del> are scarce</del> can scarce fail either<lb/> of <del> having</del> <add> possessing </add> distrainable property, or of being personally<lb/> forthcoming: viz: (under §.15 ) <gap/> Parish Constables.<lb/> This particular case might <add> (it is true) </add> have been provided for<lb/> by a clause on purpose: but such a clause, <lb/> for the sake of obviating a <del> <gap/> <gap/> a <gap/> </del> <add> mischief</add> <lb/> <add> comparatively </add> improbable <del> <gap/> </del> <add> and therefore slight, </add> <del> mischief</del>, would have introduced<lb/> <del> a deal of complication</del> such a degree of complication<lb/> as might be deemed a greater mischief.<lb/> <hi rend="superscript">[+]</hi> <note>[+] in a Statute, embracing as most statutes <add> necessarily</add> do, a variety of offences and a variety of classes of persons, there</note> <del>There</del> would be no end <del><gap/></del> <add> of</add> framing <del><gap/></del> separate<lb/> courses of procedure, inflexible in each instance, <lb/> under the notion of <del><gap/> fitting</del> <add> making <del>it fit</del> them fit to</add> each man's case:<lb/> But what is impossible for the Legislator <add> to do</add> , <del>will be</del> <add> may be</add> <lb/> <add> made</add> easy for the Judge to do, if the Legislator will <add>but</add> give<lb/> him leave. Given the advantage of working by <lb/> <hi rend="underline">powers</hi> rather than by <hi rend="underline">obligations</hi>: a principle<lb/> the ability of which is held up to view on more<lb/> occasions than one in the course of the present <del><gap/></del> <add> pages</add> </p> | |||
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+ Inserenda 128
Observations
V. Penalties
§.38
91
Penalty
There are will be many cases in which it is not necessary,
power, sought on the part of the Magistrate, simple
power without obligation, is preferable to power clogged with obligation.
Perhaps the notion apprehension was, , if the Magistrate
were left free, the offender he might be apt to let the
offender, through careless carelessness or false tenderness on the part
of the Magistrate, should slip through his fingers. But
(besides the danger of this hypothetical mischief
does not seem so great as to warrant the introduction
of the other which is an unavoidable one) on
looking further into the Act, it will be found that
this same course of unmittigiable unmitigable
severity applies to other cases in which there is no
such demand for it: applying to classes of eventual delinquents
where who are scarce can scarce fail either
of having possessing distrainable property, or of being personally
forthcoming: viz: (under §.15 ) Parish Constables.
This particular case might (it is true) have been provided for
by a clause on purpose: but such a clause,
for the sake of obviating a a mischief
comparatively improbable and therefore slight, mischief, would have introduced
a deal of complication such a degree of complication
as might be deemed a greater mischief.
[+] [+] in a Statute, embracing as most statutes necessarily do, a variety of offences and a variety of classes of persons, there There would be no end of framing separate
courses of procedure, inflexible in each instance,
under the notion of fitting making it fit them fit to each man's case:
But what is impossible for the Legislator to do , will be may be
made easy for the Judge to do, if the Legislator will but give
him leave. Given the advantage of working by
powers rather than by obligations: a principle
the ability of which is held up to view on more
occasions than one in the course of the present pages
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