We come now to speak of what is called civil law or jurisprudence on the one hand and penal law or jurisprudence on the other . . . They are inextricably interwoven. . . . in every law must be comprised two things:
a specification of the cases in which the punishment is to attach;
a specification of the punishment itself . . . .
That book belongs to the subject of penal jurisprudence which has most in it about punishment: that book belongs to the civil branch which has least in it about punishment itself, and most about the cases in which punishment is or is not to be applied.
The book indeed may be a large book; it may indeed be of any size, and yet be a book of law, and yet not say a syllable in any part. of it about punishment still however it has a tacit reference to punishment: else the law which it delivers or professes to deliver would be nugatory, and the book useless.
A great book for example is written about Wills . . . It says a great deal about the nature of a Will: about the sort of persons who are empowered to make them: about the cases in which these persons may and those in which they may not exercise that power: about the different sorts of Wills when made: about the number of witnesses which must attest them: about the places where they must be registered: about the construction that is to be given them, and so on for evermore: all this while without intimating a syllable about punishment.
Has punishment however no concern in this? If that were the case the whole affair would amount to nothing. In fact all this is of no further use than as it serves to fix the application of punishment: distinguishing, the one person who would not be punished in case of his meddling with and using that thing in question, from the multitude of other persons (amounting in fact to no fewer than all the rest of mankind) who would.
You claim to be the sole proprietor of yonder house . . . You maintain that you are the person named … by the will of your deceased friend: who possessed the house: who was of the number of those persons who are allowed to make a will: who was so circumstanced as to have a right to dispose of this house by his will: who made such and such a will accordingly in your favor; took care to have it attested by so many witnesses, etc. All this is only to give other persons to understand that were they to offer to meddle with the house they would be punished, and that you alone are left free to deal with it as you please….