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GENERAL VIEW OF A COMPLETE CODE OF LAWS. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 3 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 3.
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GENERAL VIEW OF A COMPLETE CODE OF LAWS.
GENERAL VIEW, &c.
A Code of Laws is like a vast forest; the more it is divided, the better it is known.
To render a code of laws complete, it is necessary to know all the parts which should be comprised in it. It is necessary to know what they are in themselves, and what they are in relation to one another. This is accomplished when, taking the body of the laws in their entirety, they may be divided into two parts, in such manner that everything which belongs to the integral body may be found comprised in the one or the other part, and yet nothing shall at the same time be found in both parts. This is the only case in which the division is complete.
The customary divisions are—
First Division: 1. Internal law; 2. Law of Nations.—The first is National law, which takes its name from the country to which it refers; as English law, French law, &c. &c.
A detached part of this law which only concerns the inhabitants of a town, of a district, or of a parish, forms a subdivision which is called municipal law.
The second is that which regulates the mutual transactions between sovereigns and nations. This might be called exclusively international law. This division is complete, but its parts are unequal and slightly distinguished.
Second Division: 1. Penal law; 2. Civil law.—When this division is given as complete, international law has at least been forgotten.
Third Division: 1. Penal law; 2. Civil law; 3. Political law.—To distinguish this latter from international law, it would be better to call it constitutional law. If the second division is complete, what must be thought of this? Its third part must, in some shape or other, have been comprised in the other two.
Fourth Division: 1. Civil or Temporal law; 2. Ecclesiastical or Spiritual law.—A complete division, but unequal, and one of which the parts are much intermixed.
Fifth Division: 1. Civil law; 2. Military law.—Another division apparently limited to internal law.
This unfortunate epithet civil, opposed alternately to the words penal, ecclesiastical, political, military, has four different meanings, which are incessantly confounded with each other. It is one of the most unmeaning protean terms in all jurisprudence.
Sixth Division: 1. Written law; 2. Unwritten, or Customary law.
Laws may exist in the form of statutes or in the form of customs. The statute law is called written positive law; custom is a conjectural law which is drawn by induction from the former decisions given by the judges in similar cases.
Seventh Division: 1. Natural laws; 2. Economical laws; 3. Political laws, to which correspond,—the duties devolving upon an individual, family duties, and the duties of man in society. But where does man exist without society?—and if there be any such place, whence are its laws derived? What are these natural laws, which nobody has made, and which everybody supposes at his fancy? What are these economic laws, which are not political? The making of such divisions may be parodied by distributing zoology into the science of chimeras, of horses, and of animals! Such, nevertheless, is the nomenclature of legislation, according to the noblest spirits of the age, the D’Alemberts, the Diderots, and the principal of the economists. What, then, must be the condition of the science?
They also withdraw from the body of the law considerable portions which do not give rise to the idea of division, because the words which respectively express them have no correlative terms to express the residue of the mass of the laws. Maritime law—law relating to police, finance, political economy, procedure, &c.: these portions being extracted, what relation have they with the more formal divisions?—in which ought they to be placed?
Criminal law is a portion altogether undetermined of penal law. It is a law directed against an offence which has been called a crime. This distinction is the result of many indeterminate circumstances: odious procedure—enormous evil or reputation of enormity—evil intention—severe punishment.
Canon law. This is a sufficiently determinate portion of ecclesiastical law:—That portion of this law which is derived from a certain source.
The divisions which follow are either altogether new—have only received a semidenomination—or have been but little considered at present. I announce them in this place, because of the light they shed upon the theory of the laws, and because of their practical utility.
Eighth Division: 1. Substantive laws; 2. Adjective laws.—This last is the name which I give to the laws of procedure, for the purpose of designating them by a word correlative to the principal laws from which it will be so often necessary to distinguish them. The laws of procedure could neither exist nor even be conceived of, without these other laws, which they cause to be observed. Whoever understands the meaning of these two words, as applied to grammar, will understand the meaning which I would attach to them when applied to jurisprudence.
Ninth Division: 1. Coercive and Punishing laws; 2. Attractive or Remuneratory laws.—The former employ punishments—the second employ rewards as their sanctions.
Tenth Division: 1. Direct laws; 2. Indirect laws.—I call those direct, which reach their end in the most direct manner, by directing or prohibiting the act to which they would give birth, or which they would prevent. I call those indirect, which, for accomplishing a purpose, employ distant means, attaching themselves to other acts, which have a more or less immediate connexion with the first. Prohibition of murder under pain of death, is a direct method of preventing assassinations: prohibition against carrying offensive weapons an indirect method* of preventing them.
Eleventh Division: 1. General laws; 2. Particular laws.—In the first are included those in which everybody is interested—in the second those which are directly interesting only to certain classes. This division is of great practical utility in facilitating a knowledge of the laws.
Twelfth Division.: 1. Permanent Laws; 2. Laws necessarily Transitory.—There are some laws which die of themselves, when the circumstance which gave birth to them has ceased. A law which refers to the conduct of a certain individual must die with him. Among transitory laws, the greater number are called regulations. Such are particular orders, laws which must and which ought to be changed, and which only correspond with a certain state of things.
Thirteenth Division: 1. Code of the Laws; 2. Code of Formularies.—A formula constitutes a part of the laws when it is directed by the legislature: a patent of creation, a record, a certificate, a deed, a form of petition, may all become part of the law.
Of all these divisions, the third into Penal Law, Civil Law, Constitutional Law, is the most complete, the most usual, and the most convenient. It is therefore the centre from which I shall cause all the parts to diverge.
As to writers on matters of jurisprudence, they may be ranged into two classes. Some treat of the laws of one country, explaining, commenting upon, and reconciling them; as Heineccius on the Roman laws, and Blackstone with reference to the laws of England.
The others treat of the art of legislation itself, either by explaining its preliminary notions, the terms of universal jurisprudence, such as powers, rights, titles, contracts, obligations, crimes, &c.; or seeking out the general principles upon which they ought to be founded, or examining the legislation of a certain country, to show whether it be feeble or strong.
Few works of law are of a unique and distinct character. Grotius, Puffendorf, Burlamaqui, assume successively, and sometimes at one time, all these characters. Montesquieu, in his “Esprit des Lois,” at first proposed to make a treatise upon the art; but in his last books the legislator assumes the antiquarian and the historian; and he can only be compared to the river, which after having traversed and fertilized noble countries, never reaches the sea, but is lost in the sand.
Hobbes and Harrington, who have treated only of the principles of constitutional law, have so done in a general manner, but with a view to local application. Beccaria, in his Treatise on Crimes and Punishments, has attended exclusively to them as a branch of philosophy.
RELATIONS BETWEEN THE LAWS CONCERNING OFFENCES, RIGHTS, OBLIGATIONS, AND SERVICES.
In a code of laws, everything turns upon offences, rights, obligations, services. Clear ideas of the meaning of these abstract terms are therefore desirable, and on this account it is necessary to know how these different notions are formed, and what are their reciprocal relations. To show their mode of generation, is to show their nature.
A period may be easily imagined when men existed without laws, without obligations, without crimes, without rights. What would they then possess? Persons, things, actions; persons and things, the only real beings; actions, which exist only for a fleeting moment, which perish the instant that they are born, but which still leave a numerous posterity.
Among these actions, some will produce great evils, and the experience of these evils will give birth to the first moral and legislative ideas. The strongest will desire to stop the course of these mischievous actions—they will call them crimes. This declaration of will, when clothed with an exterior sign, will receive the title of law.
Hence, to declare by a law that a certain act is prohibited, is to erect such act into a crime. To assure to individuals the possession of a certain good, is to confer a right upon them. To direct men to abstain from all acts which may disturb the enjoyment of certain others, is to impose an obligation on them. To make them liable to contribute by a certain act to the enjoyment of their fellows, is to subject them to a service. The ideas of law, offence, right, obligation, service, are therefore ideas which are born together, which exist together, and which are inseparably connected.
These objects are so simultaneous that each of these words may be substituted the one for the other. The law directs me to support you—it imposes upon me the obligation of supporting you—it grants you the right of being supported by me—it converts into an offence the negative act by which I omit to support you—it obliges me to render you the service of supporting you. The law prohibits me from killing you—it imposes upon me the obligation not to kill you—it grants you the right not to be killed by me—it converts into an offence the positive act of killing you—it requires of me the negative service of abstaining from killing you.
It is only by creating offences (that is to say, by erecting certain actions into offences) that the law confers rights. If it confer a right, it is by giving the quality of offences to the different actions by which the enjoyment of this right might be interrupted or opposed. The division of rights ought therefore to correspond with the division of offences.
Offences, inasmuch as they concern a determinate individual, may be distributed into four classes, according to the four points in which he may be injured:—Offences against the person—offences against honour—offences against property—offences against condition. In the same manner, rights may be distributed into four classes:—Rights of security for the person—rights of security for honour—rights of security for property—rights of security for condition.
The distinction between rights and offences is therefore strictly verbal—there is no difference in the ideas. It is not possible to form the idea of a right, without forming the idea of an offence.
I imagine to myself the legislator contemplating human actions according to the best of his judgment: he prohibits some, he directs others: there are others which he equally abstains from commanding or prohibiting. By the prohibition of the first, he creates positive offences: by the injunction of the second, he creates negative offences. But to create a positive offence, is to create an obligation not to act—to create a negative offence is to create an obligation to act. To create a positive offence, is to create a negative service (the service which consists in abstaining from a hurtful action.) To create a negative offence is to create a positive service (the service which consists in the performance of a useful action.) To create offences, is therefore to create obligations or forced services: to create obligations or forced services, is therefore to confer rights.
With reference to actions, with respect to which the legislator neither pronounces a prohibition nor an injunction, he neither creates an offence, an obligation, nor a forced service. Still he creates a certain right, or leaves you a power you already possessed, that of acting or not acting as you like. If, with respect to these same actions, there had previously existed an injunction or a prohibition, and this injunction or prohibition had been revoked, it might be said without difficulty that the right which was restored to you, the law conferred or restored it. The only difference is, that in the one case you hold the right through the activity of the law; in the other case, you hold it through its inactivity. In the actual state, it appears as if you owed it to the law alone, whilst beforehand you appeared to be indebted partly to the law and partly to nature.
You owe it to nature, inasmuch as it is the exercise of a natural faculty;—you owe it to the law, inasmuch as it might extend the same prohibition to this as well as to other actions.
With respect to those actions which the law refrains from directing or prohibiting, it bestows a positive right,—the right of performing or not performing them without molestation from any one in the use of your liberty.
I may stand or sit down—I may go in or go out—I may eat or not eat, &c.: the law says nothing upon the matter. Still the right which I exercise in this respect I derive from the law, because it is the law which erects into an offence every species of violence by which any one may seek to prevent me from doing what I like.
This, then, is the connexion between these legal entities: they are only the law considered under different aspects; they exist as long as it exists; they are born and they die with it. There is nothing more simple, and mathematical propositions are not more certain. This is all that is necessary for obtaining clear ideas of the laws, and yet nothing of this is found in any book of jurisprudence; the contrary is, however, everywhere found. There have been so many errors of this kind, that it may be hoped that the sources of error are exhausted.
The words rights and obligations, have raised those thick vapours which have intercepted the light: their origin has been unknown; they have been lost in abstractions. These words have been the foundations of reasoning, as if they had been eternal entities which did not derive their birth from the law, but which, on the contrary, had given birth to it. They have never been considered as productions of the will of the legislator, but as the productions of a chimerical law—a law of nations—a law of nature.
I shall only add another word upon the importance of clear ideas respecting the origin of rights and obligations. They are the children of the law; they ought never, therefore, to be set in opposition to one another: they are the children of the law; they should, like the law itself, be subordinate to general utility.
The fundamental idea, the idea which serves to explain all the others, is that of an offence. It possesses clearness by itself; it presents an image; it addresses itself to the senses, it is intelligible to the most limited mind. An offence is an act from which evil results. To do a positive act, is to put one’s self in motion; to do a negative act, is to remain still. Now, a body in motion, or a body at rest, presents an image; an individual wounded, an individual suffering, in consequence of any action, presents an equally familiar image. It is not the same with the fictitious entities called rights and obligations. They cannot be depicted under any form; they may, however, be connected with sensible images, but they then cease to be abstractions; they are united to real things, as in the expressions, the right to do a certain act—the obligation to perform it or not to perform it. The more nearly such expressions convey the idea of an offence, the more easily are they understood.
RELATION BETWEEN THE PENAL AND CIVIL CODE.
If the distinction between the civil and penal code be inquired for, the greater number of jurisconsults reply, that the civil code contains the descriptions of rights and obligations, and the penal code those of crimes and punishments.
If the meaning of the preceding chapter be clearly understood, it will be perceived that there is no foundation for this distinction. To create rights and obligations, is to create offences; to create an offence, is to create the right which corresponds therewith: it is one and the same law, one and the same operation.
If you say, that the right which you have to be supported by me belongs to a certain class of laws which ought to be called civil, and that the offence which I commit by neglecting to support you, belongs to a different class of laws which ought to be called penal, the distinction would be clear and intelligible.
There exists between these two branches of jurisprudence a most intimate connexion; they penetrate each other at all points. All these words—rights, obligations, services, offences—which necessarily enter into the civil laws, are equally to be found in the penal laws. But from considering the same objects in two points of view, they have come to be spoken of by two different sets of terms:—obligations, rights, services, such are the terms employed in the civil code: injunction, prohibition, offence, such are the terms of the penal code. To understand the relation between these codes, is to be able to translate the one set of terms into the other.
Such being the intimate connexion between these two codes, it seems extremely difficult to draw a distinction between them: I shall, however, attempt it.
A civil law is that which establishes a right: a penal law is that which, in consequence of the establishment of a right by the civil law, directs the punishment in a certain manner of him who violates it. Thus, a law which should confine itself to the interdiction of murder, would be a civil law; the law which should direct the punishment of death against the murderer would be a penal law.
The law which converts an act into an offence, and the law which directs the punishment of that offence, are, properly speaking, neither the same law nor parts of the same law. Thou shalt not steal: there is the law creating an offence. The judge is directed to imprison those that steal: there is the law which creates the punishment. These laws are so distinct, that they refer to different actions—they are addressed to different persons. The first does not include the second, but the second implicitly includes the first. Say to the judges, “You shall punish thieves,” and a prohibition of stealing is clearly intimated. In this point of view, the penal code would be sufficient for all purposes.
But the greater number of laws include complex terms, which can only be understood after many explanations and definitions. It is not only necessary to prohibit theft in general: it is necessary to define what is property, and what is theft. It is proper that the legislator should form two catalogues: the one containing the events which confer a right to the possession of each thing—the other containing the events which destroy this right.
These matters of explanation belong principally to the civil code: the commanding part, contained in penal laws, properly constitutes the penal code.
All laws which have no penal clauses, or which only prescribe the obligation of restitution when any one has become possessed of the property of another without evil intention, may be placed in the civil code. All laws which direct a punishment over and above simple restitution—for example, imprisonment, forced labour, fine, &c.—may be reserved for the penal code.
In the civil code, the attention is chiefly demanded by the description of the offence, or of the right. In the penal code, the prominent point is the punishment.
Each civil law forms a particular head, which ought to rest upon a penal law. Each penal law is the consequence, the continuation, the termination of a civil law.
In the two codes, there should be general heads. They should have for their object the explanation of everything which belongs to the particular titles:—definitions, amplifications, restrictions, enumeration of sorts and individuals;—in short, expositions of all sorts.
It ought, however, never to be forgotten, that these two codes are one as to their nature and their object; that they are divided only for the convenience of distribution, and that we might have arranged all the laws upon one plan, upon one map.
If a legislator have given a complete description of all the acts which he is desirous should be regarded as offences, he will have formed a complete collection of the laws: he has referred everything to the penal code. If he have established all the obligations of the citizens, all the rights created by those obligations, and the circumstances which shall cause those rights to begin and end, he will again have formed an entire code: but here he will have referred everything to the civil code.
A code of laws under this point of view ceases to be a bugbear by its immensity. We see that there are means of ascertaining its dimensions—of surveying the whole, and referring every part to a common centre.
In what order should the different parts which compose a complete code of legislation be arranged?
There are some persons who have occasion to know the whole system of the laws; viz. those who are charged with their maintenance and application. Others have occasion only to know the part which concerns them, and of which it would be dangerous for them to be ignorant: these are the individuals who are bound to obey the laws.
In the arrangement of the laws, that which is best adapted for the generality of the people ought to be regarded. The multitude have not leisure for profoundly studying the laws: they do not possess the capacity for connecting together distant regulations—they do not understand the technical terms of arbitrary and artificial methods. The matter of a code ought therefore to be disposed in the order which will be most easily understood by the least skilful—in the order which is most interesting from the importance of the subjects—in a word, in the most natural order.
But what is the most natural order? It is the order according to which the law would be most easily consulted—in which the text which applies to a given case would be most easily found, and its true meaning understood. The best method is that which gives the greatest facility in finding what is sought.
Rules concerning Method.
1. That portion of the laws which most clearly bears the impression of the will of the legislator, ought to precede those portions in which his will is shown only indirectly.
For this reason, the penal code ought to precede the civil code, and the constitutional code, &c. In the first, the legislator exhibits himself to every individual; he permits, he commands, he prohibits; he traces for every one the rules of his conduct; he uses the language of a father and a master. In the other codes, he has less to do with commandments than with regulations and explanations, which do not so clearly address themselves to everybody, and which are not equally interesting to those concerned at every period of their lives.
2. Those laws which most directly promote the chief ends of society, ought to precede those, the utility of which, how great soever, is not so clearly evident.
In obedience to this rule, the penal code ought still to precede the civil code, and the civil to precede the constitutional code. There is nothing that tends more directly to promote the great ends of society, than the laws which prescribe the manner in which the citizens should behave towards each other, and which prevent them from doing mischief. Besides, since the idea of an offence is fundamental in legislation, and everything emanates from it, it is the first upon which the public attention should be fixed.
3. The subjects which are most easily understood, should precede those of which the conception is less easy.
In the penal part, the laws which protect the person, as the clearest of all, ought to precede those which protect property. After these may successively be placed those which concern reputation; those which relate to the legal condition of individuals; those which embrace a double object, as the person and property, the person and reputation, &c.
In the civil code, those titles which relate to things, objects material and palpable should be placed before those which relate to rights, objects immaterial and abstract. The titles which relate to the rights of property before those which relate to the condition of individuals, &c.
In the code of procedure, in virtue of this rule, the most summary courts would stand first.
4. If, in speaking of two objects, the first may be spoken of without referring to the second—and on the contrary, the knowledge of the second supposes a knowledge of the first,—it is right on this account to give priority to the first.
Thus, in the penal code, offences against individuals should be placed before offences against the public—and offences against the person before offences against the reputation.
In the civil code, notwithstanding another principle of arrangement, more apparent but less useful, it will be proper to place the condition of master and servant—the condition of guardian and ward, before that of father and child—husband and wife; because a father and husband are in certain respects the master, and in others the guardian, of the children and wife.
In virtue of this rule, the penal and civil code ought to precede the code of judicial organization and procedure.
To institute a process, is to demand satisfaction for an offence, or to require a service in consequence of a right. But the catalogue of offences, of services, of rights, will be found in the penal and civil codes; with these, therefore, we ought to begin.
Procedure is a means for attaining an end: it is the method of employing the instrument which is called law. To describe the means of using the instrument, before describing the instrument itself is an almost inconceivable reversal of order.
To establish a new system of procedure, and allow misshapen laws to subsist, is to build upon foundations which are crumbling, it is to rebuild a falling house by beginning at the top. Everything should be consistent and harmonious between the different parts of the code. It is impossible to establish a good system of procedure without good laws.
5. Those laws the organization of which is complete—that is to say, which possess everything necessary to give them effect, to put them in execution—ought to precede those of which the organization is necessarily defective.
A certain part of the political code is necessarily in this latter condition. There must be a stop somewhere in the establishment of laws. Quis custodiet ipsos custodes?—The laws which govern the subjects ought to precede those by which it is attempted to restrain the sovereign power. The first—the laws for the people in populum—form a complete whole; they are accompanied by penalties, and a procedure which insures their execution. But the laws in imperium respecting the governors, unless they change their nature, cannot have for their assistance either the one or the other of these auxiliary laws. A punishment cannot be assigned for the offences of the sovereign, or of the body which exercises the sovereignty: no tribunal and no forms can be prepared for their trial;—all that human wisdom has been able to devise is reduced to a system of precautions and indirect means, rather than a system of legislation. The power of removal, for example, is employed to obviate the corruption of a representative body. The nature of the case does not admit of any judicial methods, any regular procedure.
International law is in the same condition. A treaty between two nations is an obligation which cannot possess the same force as a contract between two individuals. The customs which constitute what is called the law of nations, can only be called laws by extending the meaning of the term, and by metaphor. These are laws, the organization of which is still more defective and incomplete than that of political law. The happiness of the human race would be fixed, if it were possible to raise these two classes of laws to the rank of complete and organized laws.
The only point which is common to every existing body of laws, is, that they are all equally strangers to all these rules.
Justinian, in the Pandects and Institutes has followed two independent and incommensurable plans, which have determined the plans of all posterior jurists. Those who have been desirous of correcting Justinian, have only ventured to correct him by himself. Heineccius, the most sensible of the Romanists, has sought to refer everything to the order of the Pandects; and Beger has sought to bind up everything to that of the Institutes. Both methods are equally vicious.
Does not the idea of an offence govern everything in matters of law? Who would believe it? In the vast system of Roman law there is not a single entire chapter which treats of offences. The whole has been distributed under the three divisions—rights of persons, rights of things, suits at law: offences are incidentally mingled here and there. Those which are most connected by their nature, are often the farthest removed from one another, whilst those that are the greatest strangers touch each other.
Modern codes are not more methodical. The Danish code begins with civil procedure—the Swedish code begins with that part of the civil code which regards the condition of persons.
The code of Frederic, which bears the pompous title of universal, begins with the civil part, to which it confines itself and leaves it incomplete.
The Sardinian code presents at first certain penal regulations, but the first offences of which it treats refer to religion. Parts of the civil and constitutional codes follow, mingled with each other in continual disorder.
The code of Theresa is purely penal, but where does it commence?—first blasphemy, afterwards apostacy, afterwards magic. In the first part it treats of procedure.
Blackstone, who confined himself to making a picture of the laws of England, has only sought commodiously to arrange the technical terms most frequently used in English jurisprudence. His plan is arbitrary, but it is preferable to all those which have preceded him. It is a work of light, in comparison with the darkness which previously covered the whole face of the law.
PLAN OF THE PENAL CODE.
Penal laws, as we have already seen, are those alone which follow in a regular train, and form a complete whole. What are called civil laws, are only detached fragments belonging in common also to the penal laws. Laws deprived of all factitious sanction exercise so feeble an influence, that they ought not to be relied upon, if it be possible to do otherwise. Remuneratory laws, beside their weakness, are too costly, so that it is not possible ever to trust them with the rough work of legislation. There remains penal law, the only matter of which it is possible to construct the principal portion of the edifice of the laws. It is proper, therefore, to take the penal law, which alone embraces all, as the foundation of all the other divisions of the law.
To make a penal law, is to create an offence. The distribution of the penal laws will therefore be the same as that of offences. By determining, naming, arranging, numbering offences, we shall have determined, named, arranged, and numbered the penal laws. If this arrangement be well made, all the other kinds of laws will have been well arranged at the same time: order will have been fixed upon a manifest and unalterable foundation: the reign of Chaos will be at an end.
I shall begin with the arrangement itself. I shall afterwards show the considerations which suggested it, and the advantages to be derived from it. In order to understand the commentary, it is necessary to have seen the text.
OF THE DIVISION OF OFFENCES.
Upon the principle of utility, such acts alone ought to be made offences, as may be detrimental to the community.
An act cannot be detrimental to a community but by being detrimental to some one or more of the individuals that compose it. These individuals may either be assignable* or unassignable.
When there is any assignable individual to whom an offence is detrimental, that person may be either the delinquent himself, or some other person.
When there are persons to whom the act in question may be detrimental, but such persons cannot be individually assigned, the circle within which they may be found is either of less extent than the whole state, or not. If of less, the persons comprised within this lesser circle may be considered for this purpose as composing a body of themselves, comprised within, but distinguishable from the greater body of the whole community.
From a consideration of these circumstances, offences may be divided into four classes:—
1. Acts detrimental in the first instance to assignable individuals other than the delinquent himself. These are private offences.
2. Acts detrimental in the first instance to the delinquent and not to others, except in consequence of the evil he has done to himself. These may be called, for the purpose of contrasting them with the other classes, personal offences, or self-regarding offences.
3. Acts which may be detrimental to certain unassignable individuals comprised within a particular circle less than that of the state—as a trading company, a corporation, a religious sect. These offences against a portion of the community may, for the purpose of contrasting them with the other classes, be called semi-public offences.*
4. Acts which may be detrimental, or which threaten a danger more or less remote to an indeterminate number of unassignable individuals, without it being apparent that any one is more exposed than another. These may be called offences against the state, or public offences.
The four classes of offences are—
SUBDIVISION OF OFFENCES.
Subdivision of Private Offences.
In the present period of his existence, the happiness of a man, and his security—in a word, his pleasures, and his immunity from pains—depend, primarily, upon the condition of his person, and secondly, upon the exterior objects which surround him. If, therefore, a man suffer in consequence of an offence, it must be either in an immediate manner in his person, or in a relative manner by reason of his relation with exterior objects. But these exterior objects are things or persons: things, which he employs for his own advantage, in virtue of what is called property; persons, from whom he derives advantages in virtue of services which they are disposed to render to him. This disposition to render those services may be founded simply upon the general connexion which binds all men together, or upon a connexion which unites certain individuals more particularly with others. These more close connexions form a kind of fictitious and incorporeal object of property which is called condition: domestic condition, connexion between a parent and child, a husband and wife; political condition, connexion between the citizens of the same place, &c.
When the general connexion among all men is alone considered, their disposition to render services to one another is called good-will. This good-will is a favour, and the chance of obtaining this favour is a fictitious property, which is called honour or reputation. Reputation is therefore a species of wealth, a security for the obtaining those free and gratuitous services which depend upon good-will.
It appears, therefore, that if by any offence an individual becomes a sufferer, it must be in one or other of these four points—person, reputation, property, or condition.
Hence simple private offences may be subdivided into—
Offences against the person.
Offences against the reputation.
Offences against the property.
Offences against the condition.
Offences are called simple, when the individual is affected only in one of these points; complex, when he is affected in more than one at one time, as—
Offences against the person and property.
Offences against the person and reputation.
Offences against the Person.
As a man is composed of two different parts—his body and his mind, acts which exert a pernicious influence upon him, may operate upon him either immediately without affecting his will, or mediately through the intervention of that faculty. The constraint which may be produced by such acts may be either positive, compelling him to do what is disagreeable to him—or negative, preventing him from doing what is agreeable to him:—the evil resulting from them mortal or not; if it be not mortal, it will either be reparable or temporary, or irreparable or perpetual.—Again, the pain which a man experiences in his mind will either be a pain of actual sufferance, or a pain of apprehension. Hence we have nine genera or kinds of personal injuries, which, when ranged in the order most commodious for examination, will stand as follows:—
1. Simple corporal injuries, producing uneasiness or temporary suffering.
2. Irreparable corporal injuries—species, disfiguration, mutilation, deterioration of an organ as to its essential functions.
3. Simple mental injuries; that is, directly affecting the mind without affecting the body—or vexation.
4. Wrongful restraint or hindrance.
5. Wrongful constraint.
6. Wrongful banishment.
7. Wrongful confinement.
8. Wrongful imprisonment.
9. Wrongful homicide.
Offences against Reputation or Honour.
In point of reputation there is but one way of suffering, which is by losing a portion of the good-will of others. An individual may be a loser in this respect in either of two ways:—1. By the manner in which he behaves himself; and 2. By the manner in which others behave, or are thought to behave, towards him. To cause people to think that a man has been guilty of those acts which cause a man to possess less than he did before of the good-will of the community, is what may be styled defamation. When this is done by words, or by such actions as have no other effect than inasmuch as they stand in the place of words, the offence may be styled vilification. But this is not all: as a man may be made to lose the good-will of others, he may also be prevented from acquiring it, either by the interception of the honour which was his due, or by depriving him of the means of obtaining it. Hence we have four species of offences, viz.:—
2. Insulting language, or insulting gestures.
3. Usurpation of the reputation of another.
4. Prevention of the acquisition of deserved reputation.
Offences against the Person and Reputation.
Attacks upon the person and reputation may spring from different motives, and may have for their object either the immediate pleasure to be derived from sensual gratification, or that sort of reflected pleasure which in certain circumstances may be reaped from the suffering of another.
If the pleasure to be derived from sensual gratification be obtained by consent freely given, if not fairly obtained, the offence may be called seduction; if not freely, it may be called forcible seduction; if consent be altogether wanting, it is called rape. If neither of these offences have been consummated, the offence may be included under the denomination of simple lascivious injury.
When the person and reputation are attacked for the sake of that sort of pleasure which will sometimes result from the contemplation of another’s pain, the offence may consist either of actual corporal injury, and may be styled corporal insult, or it may come under the name of insulting menacement. Hence we have six generator kinds of offences under this head:—
1. Corporal insults.
2. Insulting menacement.
4. Forcible seduction.
6. Simple lascivious injuries.
Offences against Property.
Offences against property are so various, that it is extremely difficult to make an analytical table of them, which shall not itself form a large work. Besides, these offences have received in common use denominations which are so little determinate and uniform, that any definition given of them by a private individual can never be exact. It requires the aid of the legislature to fix their meaning.
Offences of this kind may affect either the right to property, or the enjoyment or exercise of that right.
Offences which affect the possession of property may relate either to an actual possession or to a future possession.
A contingent or future possession may be taken away by two kind of offences:—1. By the omission of an act necessary to be done before the party enters upon his right: this may be called non-investment, or non-collation of property. 2. By the commission of some act for the interception of your right—for taking it away, for example, in its transition from the actual possessor, to you the intended possessor; this may be called interception of property.
If the possession of an object of which the party is actually in possession be disturbed by the offence, the object of the offence may be his exclusion from the enjoyment of his property without substituting any other person. In this case, it is simply wrongful divestment or spoliation of property. It may be, that the object of the offence is, that the delinquent may obtain possession of the property himself: it is then usurpation of property. It may be, that he intends that it should pass to a third party: it is then wrongful attribution, or collation of property.
With respect to offences against property which only affect the enjoyment of the object in question; this object must be either a service, or a set of services, which should have been rendered by some person, or else an article belonging to the class of things. In the former case, the offence may be styled wrongful withholdment of services. In the latter case, when any object of which any individual has had the enjoyment, ceases so to be enjoyed, it may be either from a change in the intrinsic condition of the thing itself, or in its exterior situation with respect to such individual, which has removed it out of his reach. If the change in the nature of the object be such that no further use can be made of it, it is destroyed; if the change have only diminished its value, it is damaged. If it be simply removed beyond his reach without alteration, it is wrongfully detained.
The object detained may have been obtained from the proprietor, with or without his consent. In the first case, its detention is the non-payment of a debt. In the second case, if the detaining party, knowing that he has no right, intend to detain it always, and, at the same time, not to be amenable to the law, such detention is commonly called theft. If he have employed force or threats against the proprietor or other persons who would have prevented his wrongful occupation of the property, in this case the offence takes the name of robbery. If the consent of the proprietor have been obtained, but if he have been deceived by false appearances, it is an act of sharping or fraud. If such consent be obtained by the fear of evil resulting from an abuse of power, it is what is commonly called extortion.
The foregoing analysis, though imperfect, will suffice to explain the principal genera of offences contained in the fourth and fifth order.
Offences against the Person and Property.
If constraint be applied to the person of the proprietor in the commission of one of the foregoing offences against property, there results from it the following complex offences:—
Offences against Condition.
A man’s condition in life is constituted by the legal relation he bears to the persons who are about him; that is, by duties, which by being imposed on the one side, give birth to rights or powers on the other. These relations, it is evident, may be almost infinitely diversified. Some means, however, may be found of circumscribing the field within which the varieties of them are displayed. In the first place, they must either be such as are capable of displaying themselves within the circle of a private family, or such as require a larger space. The conditions constituted by the former sort of relations may be styled domestic; those constituted by the latter, civil.
Domestic conditions are founded upon natural relations, or upon relations purely legal.
In the institution of purely legal conditions, the party favoured may be styled a superior; and as both parties are members of the same family, a domestic superior, with reference to the party obliged; who in the same case may be styled a domestic inferior, with reference to the party favoured. These domestic conditions have generally been constituted by powers rather than rights.
If the power thus vested in the superior be a beneficial one, and for his own advantage, such superior is called a master, and the inferior is called a servant. If it be for the sake of the inferior, the superior is termed a guardian, and the inferior his ward.
The natural relations founded upon the cohabitation of men and women, and upon the fruits of their union, have served for a basis upon which to fix their legal relations; that is to say, the rights and obligations of the husband and wife, of the parent and child.
These rights and obligations are the same as in the preceding cases. The husband is in certain respects the guardian, and in other respects the master of his wife: the parent is in some respects the guardian, and in others the master of his children.
We come now to civil conditions. These it may well be imagined, may be infinitely various: to make a complete enumeration of them, would be to enumerate every possible mode by which powers and rights may be established; for to be subject to a certain power, or to possess a certain right, is what constitutes a civil condition.
This variety, or rather this infinity of conditions, may however be reduced to three classes:—1. Fiduciary charge; 2. Rank; 3. Profession.
A fiduciary charge takes place between two or more interested parties, when, one of the parties being invested with a power or a right, is bound, in the exercise of this power and this right, by certain rules, for the advantage of the other party. This relation constitutes two conditions—the trustee, and the trustor, called in lawyers’ language cestui que trust.
Rank is often combined with the circumstance of a fiducial trust, but there are certain cases in which it can be considered as altogether distinct. The rank of knighthood is constituted—how? By prohibiting all other persons from performing certain acts, the performance of which is the symbol of the order, at the same time that the knight in question and his companions are permitted to perform them;—for instance, to wear a ribbon of a certain colour, or in a certain manner—to call himself by a certain title—to use an armorial seal with a certain mark upon it. The law creates a benefit for these individuals, by subjecting all others to the negative duty of abstaining from these acts.
The condition of a professional man stands upon a narrower footing. To constitute this condition there needs nothing more than a permission given him on the part of the legislator to perform those acts, in the performance of which consists the exercise of his profession: to give or sell his advice or assistance in matters of law or of physic—to give or sell his services as employed in the executing or overseeing of a manufacture or piece of work of such or such a sort. The permission in the greater number of cases is not even expressly granted—the law merely does not prohibit, &c.; but there are cases in which the law, whilst it permits certain persons to follow certain trades, prohibits those who have not received the same permission. This is called in certain circumstances monopoly—in others, privileged profession.
By forbearing to subject you to certain disadvantages to which it subjects an alien, the law confers upon you the condition of natural subject—by subjecting him to them, it imposes upon him the condition of an alien. By conferring on you certain privileges or rights which it denies to a roturier, the law confers on you the condition of a gentilhomme—by forbearing to confer on him these privileges, it imposes on him the condition of a roturier.*
This analysis, which is only a sketch of the subject, may serve to explain what is a condition, and what offences may be committed against a condition. In order fully to analyze all these offences, it would be necessary to take each condition separately, to enumerate all its benefits, or all the charges of which it is composed, and to show every method by which it is possible to avoid those charges, or to be deprived of those benefits. But this process would lead to a great number of repetitions, for the avoidance of which it will be more advisable to exhibit the different kinds of offences which are common to all conditions, and afterwards the incidental offences peculiar to certain conditions.
Subdivision of Self-regarding Offences.
Self-regarding offences are, properly speaking, errors, or acts of imprudence. We have already seen, in examining the limits which separate morals and legislation, that there are strong reasons for not treating these offences in the same manner as offences of the other classes. To subject them to punishment, would be for the laws themselves to cause a greater evil than those which they would pretend to prevent.
It is, however, useful to class these offences:—1. To show in general what are the offences which ought not to be subject to the severity of the laws; 2. That those offences may be discovered with respect to which exception should be made for particular reasons.
The subdivision of these offences is exactly the same with that of private offences. The evil which we may experience from others, we may produce for ourselves.
Genera of Personal or Self-regarding Offences.
Offences against the Person.
Offences against Reputation.
1. Indiscreet imprudent confessions.
2. Invectives against one’s self.
3. Neglect of reputation.
Offences against Reputation and Person.
1. Loss of virginity before marriage.
2. Indecent practices in sight of another.
Offences against Property.
1. Waste of his own property.
2. Neglect of the means of acquisition.
3. Prodigality, Ex. gaming.
4. Burthensome acquisition.
5. Imprudent agreement.
Offences against Person and Property.
1. Mutilation which prevents the exercise of a profitable trade.
2. Diseases brought on by intemperance or excess, and which are productive of expense and loss.
Offences against Condition.
1. Investment with a condition injurious to one’s self;—improvident marriage.
2. Divestment of a condition beneficial to one’s self;—rash divorce.
Subdivision of Semi-public Offences.
It is neither an evil which is past, nor one which is present, which can constitute a semi-public offence. If the evil were present or past, the individuals who had suffered, or were suffering from it, would be assignable: it would become a private offence. What, then, is the evil which constitutes a semi-public offence? It is a future evil; that is to say, an evil not yet realized, but which is probable, and takes the name of danger.
This danger may threaten all the points in which an individual can suffer. Hence the subdivision of offences of this class must be the same with that of private offences.
Semi-public Offences against the Person.
Offences against Reputation.
Offences against Person and Reputation.
There are no offences corresponding with this order in this class.
Offences against Property.
The same denominations as for private offences. An offence is semi-public—1. When the thing, or the service which it affects, belongs in common to societies of individuals, or to the officers of an entire class; 2. When the number of persons hurt, or exposed so to be, is too great for the individual to be held liable to render a separate account to each one; as in the case of a fraudulent lottery, false reports affecting the public funds, &c.
Offences against Person and Property.
List of physical calamities—
1. Collapsion or fall of large masses of solid matter, such as decayed buildings, rocks, masses of snow, and mines.
8. Pestilential winds.
9. Contagious maladies.
10. Famine and other species of dearth.
11. Evils produced by destructive animals, beasts of prey, locusts, ants, insects, &c.
12. Evils produced by children, maniacs, idiots, &c.
An individual may be guilty of an offence of this kind—1. In as far as any imprudent act of his may contribute to give birth to any of these calamities, as by breaking quarantine, by importing merchandise from infected places, &c. 2. In as far as he may fail to do what he ought to do towards preventing them, such failure may be an offence.
N.B. These calamities do not always fall upon the person and property, so that these offences do not exactly correspond with those of the fifth order; but this is most frequently the case.
Offences against Condition.
Offences against the matrimonial condition: Ex. Attacking the validity of marriage among persons of a certain class or religious sect, as Protestants, &c.
Offences against the parental or filial condition: Ex. Attacking the legitimacy of children born in a certain class, as Protestants, &c.
Offences against civil conditions are all in one sense semi-public, inasmuch as the possession of a certain condition belongs to a certain class.
Subdivision of Public Offences.
The offences by which the public interest may be affected, are of very various and complex kinds. The following subdivision is incomplete, but an attempt to make it complete, by following out the exhaustive method, would have been too wearisome. Upon the present occasion, one of the great difficulties presented by the subject arises from the fact, that many offences of this class have not yet received names, and that a recurrence to long and obscure periphrases would therefore be rendered necessary.
The science of legislation being extremely imperfect, the nomenclature cannot be good; and with a bad nomenclature, it is not possible to make a good distribution.
Offences against External Security.
Such offences as have a tendency to expose the nation to the attacks of a foreign enemy:
1. Treason, either negative or positive, in favour of foreign enemies.
2. Espionage in favour of foreign rivals, not yet enemies.
3. Injuries to foreigners at large, including piracy.
4. Injuries to privileged foreigners, such as ambassadors.
Offences against Justice.
The direct object of the tribunals ought to be to maintain the laws, that is to say to punish those offences which violate them.
Offences against justice are of two sorts—
I. Those which may be committed by the officers of justice in opposition to their duties.
II. Those which may be committed by other persons, in opposition to, or to mislead the tribunals.
1. Improper exercise of judicial office.
2. Abuse of judicial power.
3. Usurpation of judicial power.
4. Collusion, syn. corruption on the part of judicial officers.
5. Peculation by judicial officers.
6. Exaction, syn. extortion on the part of judicial officers.
7. Non-rendering of services due to judicial officers.
8. Non-denouncing of offences to judicial officers.
9. Disobedience to judicial orders.
11. Breach of banishment.
12. Prison breach.
13. False oaths, syn. perjury.
14. Rebellion against justice.
15. Disturbance of judicial powers.
16. Judicial vexation.
Offences against Police.
Police is in general a system of precaution, either for the prevention of crimes or of calamities. It is destined to prevent evils and provide benefits.
The acts which oppose the police, or which oppose the precautions which it institutes, form as many offences as there are kinds of precautions; but as their nature is varied according to times and circumstances, so must the particular enumeration of them be.
The business of police may be distributed into eight distinct branches:—
1. Police for the prevention of offences.
2. Police for the prevention of calamities.
3. Police for the prevention of endemic diseases.
4. Police of charity.
5. Police of interior communications.
6. Police of public amusements.
7. Police for recent intelligence and information.
8. Police for registration, for preserving the memory of different facts interesting to the public, such as births, marriages, deaths, population, number of houses, situation and qualities of different properties, contracts, offences, procedure, &c.
Offences against the Public Force.
Such offences as have a tendency to oppose or mislead the operations of the military force destined for the protection of the state either against its enemies from without or from within, which the government could not overcome without an armed force.
1. Offences affecting the titles and functions of military officers.
3. Offences affecting the several sorts of things appropriated to the purposes of war: such as arsenals, ammunition, military magazines, fortifications, dock-yards, ships of war, and so forth.
Offences against the National Wealth.
The national wealth is the total of the wealth of all the nation. Those acts which tend to diminish the wealth of individuals, tend to diminish the national wealth. But what are the specific offences—what are the actions of this kind, which ought to be prohibited? The science of political economy leads to the conclusion, that government ought only to interfere for the protection of individuals in the acquisition and enjoyment of property, and seldom to direct as to the manner of acquiring and enjoying; the greatest obstacles to the increase of national wealth having almost always been found in those laws which have sought to increase it.
The most conspicuous offences of this order are—
Offences against the Public Treasure.
Such acts as have a tendency to diminish the public revenue, by opposing its collection, or misdirecting the employment of the funds destined to the service of the state:—
1. Non-rendering of services.
2. Non-payment of taxes—smuggling.
3. Destruction of the goods of the community, roads, public buildings, &c.
The state, considered collectively, may have possessions, and consequently suffer in these possessions, in the same manner as an individual.
Offences against Population.
Such offences as tend to diminish the number of members in the community:—
3. Prevention of births.
The influence of these things upon population has at all times been nearly imperceptible; the amount of population having, in nearly all circumstances, been found to correspond with the means of subsistence.
Offences against the Sovereignty.
It is hardly possible to describe these offences, unless the constitution to which they refer have been previously laid down. There are many constitutions in which it is difficult to resolve the question, Where does sovereign power reside?
The following is the simplest idea which can be formed of it. The collective name of the government is commonly given to the total assemblage of persons charged with the different political functions. There is commonly in the state one person, or a body of persons, which assigns and distributes to the members of the government their departments, their functions, and their prerogatives—which exercises the legislative power—which directs and superintends the administrative power. The person or the body which exercises this supreme power, is called the sovereign. Offences against the sovereignty are those which tend to oppose or mislead the operations of the sovereign, those things which cannot be done without opposing or misleading the operations of the different parts of the government.
1. Rebellion, offensive or defensive.
2. Political defamation—political libels.
3. Conspiracy against the person of the sovereign, or the form of government.
Offences against Religion.
For combating every species of crime which can be committed by man, the state has only two great instruments—rewards and punishments:—punishments applicable everywhere, and on all ordinary occasions—rewards necessarily reserved to a small number of extraordinary occasions. The distribution of rewards and punishments is often opposed or misdirected, or rendered useless, because the state has neither eyes which can see everything, nor hands which can attend to everything. Religion is calculated to supply this deficiency of human power, by inculcating upon the minds of men the belief that there is a power engaged in supporting the same ends, which is not subject to the same imperfections. It represents the Supreme Invisible Being as disposed to maintain the laws of society, and to reward and punish according to infallible rules, those actions which man has not the means of rewarding and punishing. Everything which serves to preserve and strengthen in the minds of men this fear of the Supreme Judge, may be comprehended under the general name of Religion; and for the purpose of clearness of discourse, we may often speak of religion as if it were a distinct being, an allegorical personage, to whom certain functions are attributed. Hence, to diminish or pervert the influence of Religion, is to diminish or pervert, in the same proportion, the services which the state might derive from it, for the repression of crime or the encouragement of virtue. Everything which tends to weaken or mislead the operations of this power, is an offence against Religion.*
Offences which tend to weaken the force of the religious sanction are—
3. Profanations—syn. actions directed against any object of religious worship.
Offences which tend to pervert the employment of the religious sanction, may be comprehended under the name of caco-theism, and are divisible into three branches:—
1. Pernicious dogmas: dogmas attributing to the divinity dispositions opposed to the public welfare; for example, that he has created sources of suffering in greater abundance than sources of pleasure: dogmas imposing misseated, excessive, or useless punishments: suborning dogmas, which grant pardon where punishment has been deserved, and which offer rewards for actions which deserve none, &c.
2. Frivolous dogmas: dogmas which respect belief alone, and from which no moral good is derivable, and from which many ill effects result between those who admit and those who reject them.
3. Absurd dogmas: another means of attributing malevolence to the divinity, making him the author of an obscure and unintelligible system of religion.
Caco-theism has been productive of atrocious crimes. It has degraded the populace, persecuted the wise, and filled the minds of men with vain terrors; has forbidden the most innocent pleasures, and is the most dangerous enemy of correct morals and legislation. Punishments directed against the propagators of these errors would be well deserved, for the evil which results from these errors is real: but such punishments would be inefficacious, superfluous, and ill-adapted. There is but one antidote to these poisons—that is, truth. These dogmas, once exposed as false, cease to be pernicious, and are only ridiculous. The opinion which supports them ought to be attacked like every other opinion. It is not the sword which destroys errors, but the liberty of examining them. Persecution for opinion’s sake exhibits the monstrous union of folly and tyranny.
The same things must be admitted with respect to atheism, though atheism may be an evil in comparison with a system of religion conformable to the principle of utility, consoling the unhappy, and propitious to virtue. Yet it is not necessary to punish atheism: the moral sanction is sufficient for its condemnation. An opinion only is here stated, but the proofs of that opinion will be produced elsewhere.
ADVANTAGES OF THIS CLASSIFICATION.
Omitting others of minor importance, the following appear to be the principal advantages of this classification:—
1. It is the most natural, that is to say, the most easy to be understood and remembered. In what does a natural classification consist? In reference to a given individual, it is that which first presents itself to his mind, and which he comprehends with the greatest facility. Hence, when an individual invents a classification for himself, it appears, and is, in respect to himself, the most natural one. But with reference to men in general, the most natural classification is that which presents objects to them according to their most striking and interesting qualities. Now there is nothing more interesting or striking to a sensible being, than human actions considered in reference to the mischief which may result from them to himself or others.
2. This classification is simple and uniform, notwithstanding the multiplicity of its parts, because they are all analogous, one following the other, allowing the bonds which connect them, and their points of contact and resemblance, to be perceived at the first glance.
To know the first class, is to know the second and the third. The fourth rests upon the same foundation, though the points of connexion are less apparent than in the others. If the offences of the first three classes were not mischievous, those of the last would not be so either.
3. This classification is best adapted for discourse; best adapted for announcing the truths connected with the subject.
In every species of knowledge, disorder in language is at once the effect and the cause of ignorance and error. Nomenclature can only be perfected in proportion as truth is discovered. It is impossible to speak correctly, unless we think correctly; and it is impossible to think correctly, whilst words are employed for registering our ideas, which words are so constituted that it is not possible to form them into propositions which shall not be false.*
4. This classification is complete. There is no imaginable law to which it is not possible by its means to assign its proper place. If this law be directed against an action mischievous in any kind of manner whatsoever: if it be a capricious law—a mischievous law, it will also have its place, but it will be among acts which are mischievous—it will be itself classed among offences.
5. It displays intention. It is so contrived that the very place which any offence is made to occupy, suggests the reason of its being put there. It serves to indicate not only that such and such acts are made offences, but why they ought to be so. By this means, while it addresses itself to the understanding, it recommends itself in some measure to the affections. By the intimation it gives of the nature and tendency of each obnoxious act, it accounts for, and in some measure vindicates the treatment which it may be thought proper to bestow upon that act in a way of punishment. To the subject, then, it is a kind of perpetual apology, showing the necessity of every defalcation, which, for the security and prosperity of each individual, it is requisite to make from the liberty of every other. To the legislator, it is a kind of perpetual lesson, serving at once as a corrective of his prejudices, and as a check upon his passions. Is there a mischief which has escaped him?—in a natural arrangement, if at the sametime an exhaustive one, he cannot fail to find it. Is he ever tempted to force innocence within the pale of guilt?—the difficulty of finding a place for it, advertises him of his error. An imaginary crime cannot escape among a crowd—it cannot be classed under such a methodical arrangement. Such are the uses of a map of universal delinquency laid down upon the principle of utility;—such the advantages which the legislator as well as the subject may derive from it. Abide by it, and everything which is arbitrary in legislation vanishes. An evil-intentioned or prejudiced legislator durst not look it in the face. He would proscribe it, and with reason: it would be a satire upon his laws.
6. This classification is universal. Governed as it is by a principle which is recognised by all men, it will serve alike for the jurisprudence of all nations. In a system of law framed in pursuance of such a method, the language would serve as a glossary, by which all systems of positive law might be explained, while the matter would serve as a standard by which they might be tried. Thus illustrated, the practice of every nation might be a lesson to every other, and mankind might carry on a mutual intercourse of experiences and improvements as easily in this, as in every other walk of science.
It might thus possess a utility independent of the use which might be made of it by the governments of the world. If the different penal laws in the world were arranged according to this method, all their imperfections would become visible: without argument respecting them, they would be discovered by inspection. Here would be offences omitted, there imaginary offences; here redundant laws containing numerous descriptions of different kinds of theft, or personal offences, &c. instead of one general law. This classification would therefore prove, in legislative science, what instruments of comparison, such as the barometer and thermometer, have been found in physical science.
I must, however, recur to the principal advantage of this classification. Under it all offences of the same class are ranged under the same head, in virtue of some common quality which unites and characterizes them. Offences which compose one class have therefore among them like properties; and they have, at the same time, properties differing from those of offences of a different class. It hence results, that it is possible to apply general propositions to each of such classes, which may serve as the characteristics of such classes.
A collection of these characters it may here be proper to exhibit. The greater number of them we can bring together, the more clearly and fully will the nature of the several classes, and of the offences of which they are composed, be understood.
Characters of Class 1—composed of private offences, or offences against assignable individuals:—
1. When arrived at their last stage (the stage of consummation) they produce, all of them, a mischief of the first as well as of the second order.
2. The individuals whom they affect in the first instance,* are constantly assignable. This extends to all—to attempts and preparations, as well as to such offences as have arrived at the stage of consummation.
3. They will admit of compensation.
4. They admit† also of retaliation.
5. There is always some person who has a natural and peculiar interest to prosecute them.
6. The mischief they produce is obvious.
7. They are everywhere, and must ever be obnoxious to the censure of the world.
8. They are less apt than semi-public and public offences, to require different descriptions in different states and countries.
9. By certain circumstances of aggravation, they are liable to be transformed into semi-public, and by certain others, into public offences.
10. In slight cases compensation given to the individual affected by them, may be a sufficient ground for remitting punishment; for if the primary mischief has not been sufficient to produce any alarm, the whole of the mischief may be cured by compensation.
Characters of Class 2—consisting of self-regarding offences—offences against one’s self:—
1. In individual instances, it will often be questionable whether they are productive of any primary* mischief at all; secondary, they produce none.
2. They do not affect any other individuals assignable, or not assignable, except in as far as they affect the offender himself, unless by possibility in particular cases; and in a very slight and distant manner they affect the whole state.
3. They admit not, therefore, of compensation.
4. Nor of retaliation.
5. No person has naturally any peculiar interest to prosecute them, except in as far as, in virtue of some connexion he may have with the offender, either in point of sympathy or interest, a mischief of the derivative kind may happen to devolve upon him.
6. The mischief they produce is apt to be unobvious, and in general more questionable than that of any of the other classes.
7. They are, however, apt many of them to be more obnoxious to the censure of the world than public offences, owing to the influence of the two false principles of ascetism and antipathy.
8. They are less apt than offences of any other class, to require different descriptions in different states and countries.
9. Among the inducements to punish them, antipathy against the offender is apt to have a greater share than sympathy for the public.
10. The best plea for punishing them is founded on a faint probability there may be, of their being productive of a mischief, which, if real, will place them in the class of public offences, chiefly in those divisions which are composed of offences against population, and offences against the national wealth.
Characters of Class 3—composed of semi-public offences, or offences affecting a whole subordinate class of persons:—
1. As such, they produce no primary mischief. The mischief they produce, consists of one or other or both branches of the secondary mischief produced by offences against individuals, without the primary.
2. The persons whom they affect in the first instance, are not individually assignable.
3. Offences of this class are apt, however, to involve or terminate in some primary mischief of the first order, which, when they do, they advance into the first class, and become private offences.
4. They admit not of compensation.
5. Nor of retaliation.
6. There is never any one particular individual whose exclusive interest it is to prosecute them. A circle of persons may however always be marked out, within which may be found some who have greater interest to prosecute, than any who are out of that circle have.
7. The mischief they produce is in general pretty obvious, but less so than that of private offences.
8. They are rather less obnoxious to the censure of the world than private offences.
9. They are more apt than private and self-regarding offences, to require different descriptions in different countries, but less so than public ones.
10. There may be ground for punishing them before they have been proved to have occasioned, or to be about to occasion mischief to any particular individual. The extent of the evil makes up for the uncertainty of it.
11. In no cases can satisfaction given to any particular individual affected by them, be a sufficient ground for remitting punishment; for by such satisfaction, it is but a part of the mischief of them that is cured.
Characters of Class 4—consisting of public offences, or offences against the state in general:—
1. As such, they produce not any primary mischief; and the secondary mischief they produce, which consists frequently of danger without alarm, though great in value, is in specie very indeterminate.
2. The individuals whom they affect in the first instance are constantly unassignable, except in so far as by accident they happen to involve or terminate in offences against individuals.
3. They admit not of compensation.
4. Nor of retaliation.
5. Nor is there any person who has naturally any particular interest to prosecute them, except in as far as they appear to affect the power, or in some other manner the private interest of some person in authority.
6. The mischief they produce is comparatively unobvious.
7. They are comparatively little obnoxious to the censure of the world.
8. They are more apt than any of the other classes to admit of different descriptions in different states and countries.
9. They are constituted in many cases by some circumstances of aggravation, superadded to a private offence. They are, however, even in such cases, properly ranked as public offences, inasmuch as the mischief they produce, in virtue of the properties which aggregate them to that class, eclipses and swallows up those which they produce in virtue of those properties which aggregate them to the first class.
10 and 11. These characters are the same as in the case of semi-public offences.
TITLES OF THE PENAL CODE.
These may be distinguished into particular and general titles.
Each head of offence constitutes a particular title.
Those are called General titles, under which matters which belong in common to a great part of the particular titles are contained. The first advantage is—repetitions avoided; the second advantage—views extended and confirmed.
The following is the catalogue of the general titles which ought to be treated of in the penal code:—
1. Of persons subject to the law.
2. Of negative and positive offences.
3. Of principal and accessory offences.
4. Of co-delinquents—that is, associates in committing crimes.
5. Of grounds of justification.*
6. Of grounds of aggravation.
7. Of grounds of extenuation.
8. Of grounds of exemption.
9. Of punishments.
10. Of indemnification, and other satisfactions to the party injured.
With respect to the particular titles, they are all formed upon the same model: if the first is known, all the others are known also.
Here follows an example:—
Of Simple Corporal Injuries.
There is simple corporal injury, when, without lawful cause(a) an individual has caused(b) or contributed to cause to another,(c) suffering or corporal uneasiness,(d) which is not followed by any ulterior(e) corporal evil.
MEANS OF PUTTING AN END TO THE OFFENCE.
It is here that the following matters should be placed, that reference may be made to them:—
1. Right or power of resistance against an unjust attack.
2. Right, or power and obligation, to lend assistance to another against an unjust attack.
3. Right, power, and obligation to the officers of police to lend assistance.
4. Right and obligation for individuals to call for the assistance of the officers of police to cause an unjust attack to cease.
Punishments.—1. Fine (h) at option (i) and discretion (k), which shall not exceed the—th (l) part (m) of the property of the delinquent.
2. Imprisonment (n) at option and discretion, which shall not exceed the term (for example) of one year. (o)
3. Security for good conduct (p) at option and discretion.
4. In serious cases (q), banishment from the presence (r) of the injured party for a time or for ever.
5. Costs of suit at option and discretion.
As many letters, so many references to different sections of the general title of punishments. There, for example, would be explained the expressions at option and discretion. At option is a concise phrase for expressing that it is lawful for the judge to employ or not to employ this punishment. At discretion, signifies that the judge ought to employ a certain quantity of this punishment, but that he may employ so much or so little as he may judge proper, provided that he keep within the limits prescribed by the general rules under the title of punishments.
Indemnifications.—As to what regards indemnifications, reference may be made to the general title which treats of them; reserving the details of those particular dispositions which may be judged convenient, for this place.
It is here that reference may be made to procedure. Procedure ad compescendum, which consists in putting an end to an offence, can have no place here, unless the crime be complicated with one of those which attack the liberty of the person.
Procedure ad puniendum et ad satisfaciendum, are the two branches of which the application is the most universal, especially the first.
Whilst as to procedure ad præveniendum, reference should be made to the general title of punishments, which treats of security to be required for good conduct.
Reference to the title Grounds of Exemption.
Reference to the title Grounds of Aggravation.
I place—1. The grounds of aggravation, which do not cause the offence to be referred to another name; 2. Those which add to it the qualities designated by some appellation of the same class; 3. Those which transfer it to the class of semi-public offences; 4. Those which transfer it to the class of public offences.
Reference to the Grounds of Extenuation.
If there be in an offence any circumstance of aggravation, the quantity of the ordinary punishment may be in consequence increased, or an ulterior punishment of a different kind may be permitted. This new punishment may be called by the technical name of extra punishment. In the same manner, in the case of extenuation, there might be established an infra punishment.
Another Example:—In order to continue to give an idea of the plan, let us take an example from among offences which relate to property. Here a new order of things presents itself. That which has been considered, appeared only to relate to what is penal—the following article will recal the idea of the civil code. We must not, however, forget that an offence is still under consideration.
I choose waste, as presenting the most simple case.
In order to simplify the case, I leave out that part which concerns evil intention:—hence, in the supposition, the hurtful act only draws the quality which renders it punishable from some inadvertency, or some error in what respects the right.
It is of no consequence whether the value be constant or occasional, provided, at the time of its destruction, it possessed an actual value, or would have had it in future: as, if it were a fence which preserved a plantation, or a bank of earth raised for a momentary service.
In following out the plan, the meaning of the word value would be explained in such manner that it will not be doubtful whether it extends to a value which does not exist, except by reference to a certain place as a boundary; to that which arises only from agreement, as a paper which contains a contract; to that which is only representative, that is to say, which is nothing except as a means of procuring a thing, whose value is intrinsic; to that which is nothing except in relation to the public—as a writing proving that a certain individual is subjected for the public good to a certain obligation.
Of some value.] The value of a thing may be reputed as nothing, when it is such that it may be presumed that a person of any humanity or politeness would voluntarily give it up to whosoever would take the trouble to ask for it, and to take it; for example, the gleaning after the harvest, the wild fruits, the hedge nuts, &c.
But to destroy this presumption, any act on the part of the proprietor, which shows that he intends to refuse this permission, either to the public at large, or to any individual in particular, is sufficient.
Such is the plan: the other sections should correspond with these.
FIRST GENERAL TITLE OF THE CIVIL CODE,*
We begin with things. Robinson Crusoe is represented as living many years, without exercising his power over persons. He could not have been so long without exercising his power over things.
The species into which things may be divided are innumerable, and there is not one of them which may not fall under the cognizance of the law; since all the productions of art, all the objects in nature, are comprised within its domain. If it were necessary to mention each separately, the Encyclopædia itself would only form one chapter of legislation. But in this immensity, we have occasion only to notice those things respecting which the law has established differences in the manner of acting with regard to them—those things which have served it as a foundation upon which to build obligations and rights. By means of certain general divisions, we shall be able easily to govern this vast subject. We shall arrange them according to their source, their employment, and their nature.
Division I. Things are either natural or artificial.—To the first head may be referred those things to which their respective names may be applied when in the condition in which they come from the hands of nature, before they have been modified by the labour of man; that is to say, the earth, its different parts, and the productions to which it gives birth. Under the name of artificial or factitious, those may be comprehended which only acquire their respective names in virtue of qualities given them by human labour. Hence, a field, though cultivated—a vine, though planted—even a live hedge, would be natural things. A house, a wine-press, a dead hedge, would be artificial things. These two classes will meet in an infinity of points, and there is no fixed line of demarcation by which to separate them. Still, a line of demarcation will be absolutely necessary in a code of laws. It is necessary to have one among those objects with which the law intermeddles for the sake of peace; without it, disputes would be interminable. The line will be more or less arbitrary, but this is of no consequence, provided that it exist.
Division II. Things moveable and things immoveable.—Another positive line of demarcation. Houses are generally immoveable. But they have been made of wood, and of iron, and have traversed along the roads.† Like the Scythians of old, the Tartars of our days are only lodged in this manner. Ships are houses. Some ships are little floating towns. Mountains and hills sometimes slip down. Large tracts of land have changed their sites. Such events are common in volcanic countries. To these ravages of nature the scourge of chicanery too often succeeds, and sits down among the ruins to dispute their possession.
Division III. Things employable and things consumable.—The first may be used without changing their form;—the second cannot be used without being destroyed. To the first head may be referred houses, vessels, &c.;—to the second, eatables and drinkables, &c. The latter are the things fungible of the Roman law. Take another step, and we shall find ourselves stopt short for want of a line of demarcation. This wood, which may serve either for building a house, or warming an oven; this ox, which may draw a plough, or which may be driven to the butchers: are these things, or are they not things fungible? All nature is one continual round of revolutions: everything which she employs, she consumes; everything which she destroys under one form, she reproduces under another. The distinction between these two conditions, though sufficiently clear in certain objects, is too slight in the general system of things to be of great utility.
Division IV. Things which are individually valuable and things which are valuable in mass.—To the first head may without difficulty be referred houses, furniture, clothes; to the latter, metal in the rough state, seeds, &c. This distinction is still very uncertain, and does not proceed far before it produces confusion. Useful in some cases, it would be useless in a multitude of others. Many things may be valued indifferently in both manners. The legislator, in tracing these divisions, would require a logician at his side; but surveyors are required for land, the surveying of ideas is an operation not less necessary, and more difficult.
Division V. This is one which the Roman lawyers have not dreamed of, and which is worth all the others. Since they have classed animals among things, they ought to have distinguished things into two classes,—sensible and insensible. The brazen cow of Myron was, in their eyes, of the same class as the living cow which he employed as his model. But how should they have distinguished the inferior animals from things—they among whom man himself, when he had the misfortune to fall into a state of slavery, was no more than a thing? And who shall say how much the condition of animals and slaves was aggravated by this cold and cruel classification? The law which ought to have protected them, began by giving an idea of them which degraded them. It spoke of them as if it would extinguish in every heart every feeling of tenderness for them—as if it would make us forget that there was any point of community between us. Error for error,—I would rather love the folly which adored the brutes, than the cruelty which ill treated them. Yes, I would rather pardon the hideous caprices which fable paints of Pasiphae, than those frightful bull fights of which the art consists in carrying the suffering and the rage of the expiring animal to the highest point, for the amusement of the barbarous spectators.
Division VI. Simple things or individuals—complex things or collections of things.—Among complex things, those should be distinguished which are naturally complex, from those which are so from institution.
A complex thing may either be a collection of simple things equally principals, or a thing which is regarded as principal, united to others which are regarded as accessaries.
A heap of corn is a collection of things equally principal. A field with certain plants and buildings is a collection of things, where some are principals and some accessaries. The bond which unites them is natural. But an inheritance, of which the objects are scattered—a stock in trade—the respective fortunes of two persons who intermarry,—these are examples of complex things, which are connected only by a bond of institution, such as the identity of the proprietor, and the disposition of the law.
Questions to be decided:—In case of dispute, which is the principal thing?—which are the accessaries? In what cases ought the disposition made with respect to the one, to comprehend the others? This depends upon contracts. It would therefore require a reference to this title.
What shall we say of the famous division among the Romanists, of things corporeal and things incorporeal; that is to say, of things which do not exist, which are not things? It is a fiction which only serves to hide and to augment the confusion of ideas. All these incorporeal things are only rights either to the services of men, or of real things: this will be shown in treating of rights.
If a thing interest sufficiently to become the object of a law, it is only as it possesses a certain value. Now this value is susceptible of many modifications, which require to be marked out. Ought these modifications to be treated of under a general title, or should they be reserved for the particular titles of the offences which affect them—as, for example, for that of waste? This is a question which can scarcely be resolved until all parts of the code have been considered.
Everything which exists, exists in a certain quantity; and the quality being given, the value of the thing will be in proportion to that quantity. To express these quantities, measures are required. These measures express either the quantity of the matter, or the space which it occupies: they are weights, or measures of extent. Hence we see that definitions of the measures of every kind, and the regulation of their proportions, ought to form a general title, and is necessary to complete a code of laws.
There is difficulty not only in distinguishing species: there is sometimes much difficulty in distinguishing individuals.
Individuation—(if we may coin this term.) This is one of the first cases which should occupy a legislator under each particular title which demands it. A house is let: but what ought to be comprehended under this term? does it comprehend the tapestry, the locks, the brewing tubs, the cisterns? What is to be understood by a square acre? does it extend without limits into the interior of the earth, and above the surface? &c.
The Roman lawyers, who have talked so much about things, have never arrived at clear ideas upon this subject.
Things, says Justinian, are either out of the patrimony of individuals, or belonging to this patrimony. They are either by divine law, or by human law. Things by divine law are also either sacred, or religious, or holy. Things by human law are either belonging to individuals separately, or belonging to all the community indistinctly; that is to say, private or common.* Here there are distinctions in form. But there is a great show, and little accomplished.
It might be imagined that the legislator was about to give specific names to all the things which composed these classes, but we should be deceived. He has carefully avoided this labour; he has abandoned it to the disputes of the lawyers:—“I, the legislator, know not how to explain my will to you; it is your duty, who must obey me, to divine my meaning!”
What would be said to a master who should explain his orders in so confused and vague a manner to his inferiors; who should speak to them of things in general, without speaking to them of things specific and individual; and who should punish them for not having known how to comprehend what he has not known how to express?
The history of Nebuchadnezzar is a noble apologue for legislators: he ordered the wise men to be slain because they did not divine his dreams. How many makers of laws have done the same, without, like him, being turned out among the beasts.
SECOND GENERAL TITLE OF THE CIVIL CODE.
Both men and things only exist in a certain place: the circumstance of place will therefore be often necessary in the law for determining both men and things—sometimes for fixing the species, and sometimes the individual. There is no method more exact or more universal for determining an individual, for defining him, than saying that at a certain time he occupied a certain portion of space.
What is the situation, what the extent of the territory which the law comprises within its empire—what are its physical divisions? By what points do the lines pass which separate the land and the sea? The same questions with regard to mountains, lakes, forests, canals. What limits do the atmospheric and subterranean regions oppose to the power of the sovereign and the right of the proprietor?
What are the political divisions and subdivisions? It would be proper to place under this title the map and the catalogue of all these divisions, according to all the sources from which they are derived, if there are differences, as establishments, judicial, military, fiscal, religious, &c.*
As many particular catalogues would be required for marking all the privileged places, as market-towns, fairs, seats of justice, colleges, universities, &c.
In conclusion, it is under this title that the system of divisions which the law adopts for the large geographical measures should be arranged—leagues, miles, &c.
THIRD GENERAL TITLE OF THE CIVIL CODE.
To the fixation of place, it is necessary to add the fixation of times. In the last resort, it is only by the combined consideration of place and time—of the place in which he is found at a certain time—that one individual can be distinguished from every other.
Under this general title, the law ought to expound what it intends should be understood by the names which express the different portions of time—second, minute, hour, day, month, year, &c.
The months, after a certain number of which, reckoned from the death or absence of the presumptive father, a child shall not be deemed to be legitimate,—are they those of the sun or the moon, or the fantastical months of the calendar, which are neither the one nor the other? The particular cases would be found under the particular titles of Bastards, or of Fathers. But it would be requisite that the explanation of the times should be found under a general title, to which reference might be made when necessary.
In cases in which months might cause doubts, it would be better to employ days.
Feasts—Fasts—Lent—inasmuch as these things were the subjects of legislation, would find a place under this title. Thus the calendar was inserted in an act of Parliament, when the new style was adopted in England.
These two titles, designed to establish fixed points to which individuals might be moored in the two oceans of time and space, ought to be found in every code, and will most probably be found in none. Hence the multitude of disputes, of uncertainties, of opportunities for chicane arising from the fluctuations of usage among the different systems which different customs have introduced.
Uniformity in the measurement of time, as well as in the measures of weight and quantity, is still the wish of philosophy, but it has not yet been accomplished.
FOURTH GENERAL TITLE OF THE CIVIL CODE.
From things, we pass to man, considered as the subject of property. He may be regarded under two aspects: as capable of receiving the favours of the law—and as capable of being subjected to its obligations.
The idea of services is anterior to that of obligations. Services may be rendered without being obligatory: they existed before the establishment of laws—they were the only bond of society among men, before they had any form of government: parents nourished their children before the laws had made it their duty. There are still many services of benevolence, politeness, and mutual interest, which are rendered freely. The law may extend its domain further, and create new obligations; but there will also be a multitude of cases beyond the reach of the law, which voluntary services alone can supply—and happily, the principle of sociality which preceded the law continues to supply its deficiencies.
1. The first division of services may be referred to that of the faculties which give birth to them. So many faculties, so many classes of services.
We may distinguish in man two sorts of faculties—active and passive. It is in virtue of the former that he can act, or not act—that he can perform a certain act, or abstain from performing it. The passive faculty may be distinguished into two branches—the one purely physical, the other sensible. As, however, man may be sensible either of good or evil—may experience agreeable or painful sensations—the sensible faculty may be again subdivided into the sensible faculties of suffering and enjoyment.
From hence arise four classes of services:—
1. Services agendi:* positive services of the active faculty. For example,—to succour a man who is drowning—to bear arms for one’s country—to arrest a criminal, &c. As many negative offences, so many examples of this class. To create a negative offence, is to impose the obligation of rendering the positive service which corresponds with it.
2. Services non-agendi: negative services of the active faculty. For example, not to commit theft, not to commit assassination, &c.: as many positive offences, so many examples of this species of service. To create a positive offence, is to impose the obligation of rendering the negative service which corresponds with it.
3. Services patiendi physicè: services of the purely passive faculty. In this respect, the inert human body is not worth much. As an example of this might be mentioned, conjugal condescendence on the part of the wife, and cases might be cited in which dead soldiers have served to fill up ditches that their comrades wished to cross. Dead bodies made use of for the purposes of anatomy, form a more important example. The English law makes this service an addition to the punishment of murderers:† their bodies were delivered to the surgeons to be dissected. This service might be termed, medical experience derived from the bodies of men condemned to death.
4. Services patiendi sensibiliter: services of the passive, but sensible faculty, whether for good or evil.
Legal punishments are services imposed upon those who undergo them for the good of society: thus the punishment of a criminal is spoken of as a debt which he has paid.
Legal rewards are services granted to those who receive them for their own advantage;—and for that of society, when there results from them a general satisfaction, and an encouragement to useful actions.
As man possesses a sensibility in common with those whom he loves, he may receive in their persons either good or evil services. The good which is done to him, is a service done to his friends also; the evil which is done to him, is a service done to his enemies. Has he injured any one? to punish him, is to serve the party injured.
II. Another source of division, according to the object to which the service applies—persons, or things:—
One branch of service in personam, is service in animam: for example, the service of the Protestant priest, who teaches me to avoid damnation—of the Catholic priest, who would draw me out of purgatory by his masses. Whatever may be their power in the other world, they serve to tranquillize my mind in this. This is a service of which an athiest himself cannot deny the reality. If I am troubled with an imaginary malady which torments me, the physician who should calm its agonies would render me a service.
III. Another source of division, according to the acting part in the person who renders the service:—
Corporal services: the man who labours in my field.
Mental services: the man who instructs me in the abstract sciences, &c.
It may be said that this distinction was not familiar to our ancestors, who saw only the same person in the barber who shaved them, and the surgeon who delivered them from the stone.
IV. Another source of division: The party employed,—another individual—one’s self—a limited class of persons—the whole state. This division corresponds with that of private, self-regarding, semi-public, and public offences: as many classes of offences, so many classes of services.
V. Another division: Services which arise out of established rights. We have said that services must have existed before the establishment of rights: but rights, once established, give rise to new services, consisting in the exercise, in favour of some one, of these same rights. I transfer to a farmer the right to occupy my land for his profit: he pays me what he owes me for the rent of my land. Here are two kinds of services which could only exist subsequent to the birth of rights.
This theory of services is new. The idea of it is familiar to all the world, but it is such a stranger to jurisprudence, that jurists have no nomenclature for it: they have considered it as a consequence of obligation, instead of which, it is anterior to obligation itself. It is true, that for the purpose of acquiring all the force and all the extent which it ought to have, the service must rest upon obligation. It is too feeble a plant to support itself: to produce its fruits, it must be supported. It is like the vine which clings around the elm. But I have thought proper, so much the rather to adopt this title of service into the law, as it has, so to speak, a more natural and apparent affinity with the principle of utility than the others. From whatever side service is regarded, its end is at once seen: it seems to say, Respice finem. This word by itself is a continual lesson to the legislator. It is logic wearing the livery of morality;—it is law by its language recalling the idea that every obligation ought to bear the character of a benefit.
TABLE OF THE DIVISION OF SERVICES.
First Division—according to the faculties which give birth to them:—
1. Services agendi, consisting in doing.
2. Services non-agendi, consisting in abstaining from doing.
3. Services patiendi physicè, passive and not sensible.
4. Services patiendi sensibiliter, passive and sensible.
Second Division—according to the object to which the service applies:—
Third Division—according to the part which acts in the person who serves:—
Fourth Division—according to the party served:—
Fifth Division—according to the period of their birth:—
FIFTH GENERAL TITLE OF THE CIVIL CODE.
In the textual systems of legislation, and the treatises of jurisprudence, the idea of obligation is too often independent of the idea of service. Jurists in general, have not known what foundation to give to obligation. If you inquire what is its principle, you will find the clouds thicken around you. They will talk to you of the divine will—of the law of nature, of conscience, of quasi contract. They will talk of everything except service—the only clear, the only reasonable notion—the only notion which can serve as a limit and a guide in the establishment of obligations.
The most correct definition which can be given of a bad law is this: “A bad law is that which imposes an obligation without rendering any service.”
Examine all religious and civil codes by this rule, and you will at once detect all those laws which, according to the principle of utility, ought to be placed in the index expurgatorius.
In all bad religions—in those which have done more evil as bugbears, than they have done good as restraints—to what purpose have their sacrifices, their privations, their penances, their restraints served? Has there resulted from them happiness to God or to man?
In a good system of religion, it is always on account of the service which results, that obligation is established. There will always be an innumerable multitude of free and gratuitous services; but there ought never to exist any obligation which is not founded upon a service received or to be received.
As many faculties as man possesses, so many species of service may he render—so many species of obligation may therefore be established.*
As to what regards the active faculty, where service is spoken of, say serviceable acts: to render a service, is to exercise a serviceable act. The idea of an obligation, then, supposes such an act: obligation of rendering such a service is the obligation of exercising such a serviceable act. It is therefore clear that the notion of obligations is posterior to the notion of services.
To be subject to a certain obligation, is to be the individual, or one of those whom the law directs to perform a certain act. There is no longer any mystery. The word obligation may be employed in an abstract sense: it may, for the convenience of discourse, be spoken of as a fictitious entity; but it ought to be possible to decipher such language into the language of pure and simple truth—into that of fact. To understand abstract terms, is to know how to translate figurative language into language without figure.
For whom ought an obligation to be profitable? It may either be for the person obliged or for another; but in every case the principle of utility requires that the evil of the obligation, whatever it be, should be compensated by the good of the service.
The evil of an obligation seems carried to its highest point in the case of an individual condemned to an ignominious painful death, in virtue of a penal law. I do not examine here if this terrible obligation be indispensable. But in supposing it so, for example, when directed against atrocious murderers, it is evident that society believes that it purchases by the loss of a dangerous individual, the security of many innocent persons.
SIXTH GENERAL TITLE OF THE CIVIL CODE.
It is by imposing obligations, or by abstaining from imposing them, that rights are established or granted. Obligations may be imposed from which no rights shall result;—for example, ascetic obligations which are useful neither to the party bound, nor to others;—but it is not possible to create rights which are not founded upon obligations. How can a right of property in land be conferred on me? It is by imposing upon everybody else the obligation of not touching its productions, &c. &c. How can I possess the right of going into all the streets of a city? It is because there exists no obligation which hinders me, and because everybody is bound by an obligation not to hinder me. When we have examined all rights separately, some will be found to owe their existence to the existence of obligations—the others to the non-existence of the same obligations. All rights rest therefore upon the idea of obligation as their necessary foundation.
In order to speak clearly of rights, it is necessary, in the first place, to distinguish them according to their kinds. The following are the principal divisions:—First division, drawn from the diversity of their source.—1. Rights existing from the absence of obligation; 2. Rights established by obligation. This is a fundamental distinction. Rights resulting from obligations imposed by the laws, have for their base coercive laws: rights resulting from the absence of obligation, have for their base permissive laws.
Second division, drawn from the diversity of their objects. Rights may be established—1. For the maintenance of property; 2. For general safety; 3. For personal liberty; 4. For general tranquillity (the union of safety with security.) So many distinct ends, so many classes of rights.
Third division, drawn from the subjects upon which they are exercised:—1. Rights over things; 2. Rights over persons—over the services of persons.
Rights over persons may either refer solely to the person, or to things and persons.
Under this last head would be found the right of interdiction with respect to things—the right of interdicting to one or all, the occupation of anything, or a certain use of it. This is a right to a negative service—it constitutes exclusive property.
Right solely referring to the person has two branches:—1. Immediate right over the person, in corpus; as conjugal right—the right of parental correction—the right of an officer of justice to seize an individual, to execute a legal sentence, &c.; 2. Immediate right over the person, in animam, consisting of the means of influencing the will; as the right of locating in an advantageous place—the right of dislocation—right of rewarding—right of making a will—right of directing public or private instruction, &c. &c.†
Fourth division, drawn from the extent of the right, that is to say, of the number of persons who are subject to it:—1. Private rights; 2. Political rights.
Fifth division, drawn from the persons in favour of whom the right is established:—1. Personal rights—those which are exercised for the benefit of him who possesses them; 2. Fiduciary rights—those which are possessed to be exercised for the advantage of another only, such as those of factor, attorney, guardian, father, or husband in quality of guardian. All political power is fiduciary; fiduciary rights are the same in nature as personal rights, combined with certain obligations.
Sixth division, drawn from the divisibility of rights:—1. Integral rights; 2. Fractional rights; 3. Concatenated rights.
What I call integral right is the most unlimited—the entire right of property: it includes four particulars—
1. Right of occupation.
2. Right of excluding others.
3. Right of disposition; or the right of transferring the integral right to other persons.
4. Right of transmission, in virtue of which the integral right is often transmitted after the death of the proprietor, without any disposition on his part to those in whose possession he would have wished to place it.
There is not one of these rights which, in a system founded upon the principle of utility, ought not to have its limits.
The first would be limited by the obligation of using without injury to another.
The second, by the obligation of permitting its use, upon urgent occasion, for the benefit of another.
All these rights may also receive different restrictions, for special reasons of utility. Hence, the proprietor of a distillery may be subject to regulations which shall have for their object the collection of the revenue, &c.
These exceptions deducted, what remains is the quantity of integral right.*
Rights of less extent than the integral right may be considered as fractions, and called fractional.
When the whole right is possessed, one is said to have the property of the thing. Is less than this possessed, one is said to have a right,—a right to be exercised over the material thing; for example, a right of chase, a right of way, a right to services.
Concatenated rights are those which are not founded on absolute, but on conditional laws. The law which prohibits, permits, or commands, may add conditions, in such manner that the accomplishment of the one shall be necessary to the accomplishment of the other.
The legislature by itself does all that is possible for the establishment of the right, with the exception only of the act by which the individual puts his seal to it. At that period the obligation arises.
Conditional laws are in an intermediate condition between existence and non-existence; they wait for the operation of some individual to give them the breath of life.
Fractional and concatenated rights may, in certain cases, be called common rights.
Let us now return to the second division,—Rights concerning things. The only right which purely relates to things is that of occupation.
In order to know the kinds, the modifications of this right, it is necessary to know the modifications of which it is susceptible. So many limitations as may exist, so many distinct rights may there exist, each of which may have a separate proprietor.
Under a legislation but little advanced, the right of occupation could not exist in an unlimited form: no person could possess in this manner—scarcely anything could be thus possessed.
The right of occupation may be limited in seven respects:—
1. With regard to the substance of the thing. Thus, from the general right of occupation which I possess over the land which is considered mine, there may be detached in your favour the right of carrying an aqueduct above it, or a sewer underneath it—the right of making a roof project over it, the right to allow a tree to project, the right of exploring mines, &c.
The right of occupation with respect to a house, may either comprehend the whole house, or be limited to a certain chamber; and so of the rest.
It will be seen that this measure of limitation supposes that each thing may be distinguished from every other, and that each part of a thing may be distinguished from every other part: it supposes a complete system of individuation for things.
2. The right of occupation may be limited as to the use; that is to say, as to the manner of occupying. I may gather the fruits of my land, but I may not surround it with a hedge, still less, close all entrance against you. I may perform divine service in the church of which I am the clergyman, but I may not keep shop there.
The right of collecting a product which renews itself, such as water, fish, wood, turf,—does this respect the substance or the use? Again, another species of individuation;—again, other lines of positive demarcation.
3. The right of occupation may be limited as to time. If it be not perpetual, it may be present or future; in the last case, it may be certain or contingent. Present or future, its end may be dated from a determinate or indeterminate period. We may remark here, that when we suppose rights to be certain which are not present, it is only in conformity with custom; for in strictness there is no certainty with respect to anything which is future. In order to possess a certain right, it is necessary that one shall be certain to be alive. With this restriction, a right which ought to commence after the lapse of ten years, for example, is a certain right. A right which ought to vest in me after your decease,—is this certain or contingent? It is certain that you will die, but it is not certain when you will die, nor even that you will die before me. Here there are still required lines of demarcation.
4. The right of occupation may be limited by place. Such a swarm of bees is yours whilst it remains upon your ground. It is mine when it has quitted your land for mine, or it belongs to nobody. Under the ordinary law, men are, in relation to different sovereigns, what bees are to different proprietors.
It will be perceived that this distinction only respects moveable things: also that this species of limitation brings us back to that which has reference to time; since to have a right to a certain thing whilst it continues in a certain place, is to have such right during a certain time. The place serves as an index to the time.
5. The right of occupation may be also limited by a right of interdiction possessed by another; that is to say, when another has the right of interdicting your occupation of the thing. It might seem at first that these two rights would destroy one another; but if the right of interdiction only exist at intervals—if it only exist in connexion with certain customs, the one and the other right may exist, and the one serve to limit the other. It is thus that the poor have the right of gleaning in the fields of the rich, provided that they have not been interdicted.
It may happen that this right of occupation is of no value. It may be, that it may be annihilated by the right of interdiction which limits it. Has, therefore, the right of gleaning any force? When I have collected corn worth many shillings, if you have not previously forbidden me, you could not have me condemned to make even simple restitution. But had I clandestinely taken only a single farthing of your money from your room, you could have had me punished for theft.
6. The right of occupation may be limited by the addition of other persons whose concurrence is necessary for the lawful exercise of the right. Three co-heirs have between them a strong box. No one of them has the right to open it, except in the presence and with the consent of the other two. The right of each is limited by that of his two associates. A right, the exercise of which, in order to be lawful, requires the concurrence of many wills, may be called fractional.
This kind of limitation may also be connected with the right of interdiction. One of the co-heirs refuses his consent to the opening of the strong box; he forbids this act to the others.
7. The right of occupation may further be limited by another right of occupation granted to another proprietor. I have a right to dwell in a certain room: if you have also a right to dwell in the same room, it is evident that I cannot use my right exactly in the same manner as if you had no such right.
It will be seen that this kind of limitation may also be connected with the first and second.
When many persons find themselves possessed of these rights of occupation, limited the one by the others, they are commonly called co-proprietors; and it may be said of the thing, that is possessed by these persons in common.
The right of alienation has also its limitations—its modifications. They correspond with those of the right of occupation. He who is acquainted with these, will not be ignorant of the others.
I must observe that the right of alienation includes a particular kind of right respecting services; for what do I do when I alienate anything in your favour? Among other acts, it is necessary that I dispose of certain services on the part of the officers of the government whose assistance would be necessary to guarantee to you the occupation of this thing. The rights which you acquire over such services, form part of the numerous band of rights which are transferred upon every alienation of property:—with respect to the principal right, they may be called corrobarative rights.
The acts to which it extends, form the measure of a right;—it is to these acts that the view must be directed, in order to obtain those clear ideas which can only be obtained by the contemplation of material objects. The measure of a right of occupation which I possess, is the physical acts which I may exercise towards the thing to be occupied. The measure of the right of exclusion which I have, is the acts that you cannot exercise upon the same thing. The measure of the right of disposition, is the acts which have reference to the two kinds of rights of which I can dispose. But when we have arrived at the idea of a physical act, we have under our eyes a definite image: we have reached the source, we have reached the highest degree of clearness. He who at the name of a right can picture to himself a sensible image, understands the nature of this right; he who is not able thus to represent it, does not yet understand it.
Every right agendi has, then, an act to which it has reference. This act may either be transitive or intransitive: intransitive, if the act only affect the agent himself,—transitive when the act affects a thing or person other than the agent.
Even when the act appears only to affect things, it affects persons—that is to say, the persons to whom the things might be useful—inasmuch as there is nothing to be considered in things, but the services which persons may draw from them.
Hence, when the right appears nominally to be conferred on a thing, it is really conferred on a person, inasmuch as it is always a person who enjoys the advantage resulting from such right.
This is what the compilers of the Roman code never comprehended. According to them, all rights are divided into two masses,—of which the one regards persons, the other things. They have set out with a false unintelligible division into two parts, which are not exclusive with regard to each other. Jura personarum—Jura rerum.
It may be said that they were led to take this division by a species of correspondence or grammatical symmetry; for there is no correspondence between the two appellations except as to the form,—there is none as to the sense. Rights of persons—what does it mean? Rights belonging to persons—rights conferred by the law on persons—rights which persons may enjoy:—everything is clear. Transfer this explanation to rights of things, what is the result? Things which have rights belonging to them—things on which the law has conferred rights—things which the law has wished to favour—things for whose happiness the law has provided:—it is the height of absurdity.
Instead of rights of things, it is proper to say rights over things. The change appears very slight: it, however, overthrows this nomenclature, this division of rights, all this pretended arrangement of the Romanists—since adopted by Blackstone, and according to which he has so badly classed the objects of the law.
If we err in the first step, the further we proceed in the same direction, the further we shall be from the end. How shall he who employs for the explanation of everything an expression which has no meaning,—how shall he communicate a knowledge of all the parts?
This unfortunate double signification has thrown the Romanists into a perpetual confusion. Under the heads of rights of persons, there are nearly as many questions concerning rights over things, as concerning rights over persons. For example, right of the husband over the goods of the wife acquired by his marriage;—right of the father over the property acquired by his son;—right of the members of a political society over the things belonging to that society; and so of the rest.
What a system is that, in which the fundamental terms change their signification every moment!
For expressing in an expeditious manner these rights over things, would it be possible to employ the word so frequently used by the Romanists—servitude? I fear it would be put out of employ by the abusive use they have made of it. It has taken a false acceptance; it is difficult to regenerate it.
If it could be employed, this is the use I would make of it. The partial right of occupation, whether as to the substance of a thing, or as to its use, I would call positive servitude. The right of exclusion with respect to such or such a part of the substance, or such or such a use on the part of the original proprietor, I would call negative servitude. The right over the positive services of the principal proprietor, to be exercised on his part for the improvement of the thing for the profit of the other subordinate proprietors, I should call compulsory servitude.
Other errors of the Romanists upon this matter:—If they are to be believed, there are cases in which rights only subsist by means of the laws, and other cases in which they have subsisted, or still subsist, independent of the laws. Those rights which they represent to us as only subsisting by the law of nature, or the law of nations, or some such other phrase, have no existence at all, or only exist in consequence of civil laws, and by them alone exactly as those whose existence they attribute to these same laws.
They have ill understood legal organization; they have fallen into strange mistakes respecting the manner in which the functions of this vast body are performed. These errors have been anything but matters of indifference. I should never have done, if I were to cite all the false reasonings resting upon these false ideas. Certain rights, it has been said, are not founded upon the civil law; they therefore ought not to be altered by the civil law. Certain laws have only been made at the expense of natural liberty; therefore they are violations of natural liberty; they are therefore unjust.
To say that a law is contrary to natural liberty, is simply to say that it is a law; for every law is established at the expense of liberty—the liberty of Peter at the expense of the liberty of Paul.
When a law is reproached as hurtful to liberty, the inconvenience is not a particular ground of complaint against that law—it is shared by all laws.* The evil which it causes in this manner—is it greater than the good which it does in other ways? This is the only question to be examined.
It is unfortunate that individual and political liberty have received the same name. By means of this double signification, a syllogism may be formed in favour of perpetual revolt. An established law is a restraint upon liberty: a restraint upon liberty is tyranny: tyranny is a legitimate reason for revolt.
This digression is not foreign to the present subject: it shows the importance of just ideas of the origin and nature of rights.
The preparation of a table of rights is a sufficiently dry and ungrateful task; but such labours are required of those who would be of use to the science. It is necessary to distinguish one part of a subject from another, in order to be in a condition to establish true propositions respecting them. Nothing can be asserted, nothing can be denied, respecting them, whilst objects are mixed pell mell, and form only heterogeneous masses. In order to make it understood that one plant is food, and another poison, the characters which distinguish them must be pointed out, and proper names must be assigned to them. So long as there are no names for expressing many rights, or that there is only one and the same name for expressing many dissimilar ones: so long as generic names are employed, without distinguishing the species included under them, it is impossible to avoid confusion—it is impossible to form general propositions which will be true. This observation has already been made, but it often presents itself in a science in which the greatest difficulties arise from a vicious nomenclature.
TABLE OF THE DIVISIONS OF RIGHTS.
I. Sources.—Rights existing from the absence of obligation; rights established by obligations.
II. Ends.—Connexion of the right with the interest of the party.
III. Subject over which they are exercised.
IV. Extent, with respect to the number of persons subject to them.
V. Person whose interest has been the reason for granting them.
VI. Divisibility among persons.
1. Rights of property.
2. Rights of general safety.
3. Rights of general tranquillity.
4. Rights of personal liberty, that is, individual.
5. Integral rights.
6. Fractional rights.
7. Concatenated rights.
8. Personal rights.
9. Fiduciary rights.
10. Private rights.
11. Political rights.
12. Principal rights.
13. Corroborative; or accessory, or subsidiary, or sanctionative rights.
14. Transmissible rights.
15. Intransmissible rights.
RIGHTS OVER THINGS.
1. Right of occupation of the thing.
2. Right by exclusion of another, or by interdiction of occupation by another.
3. Right of interdicting occupation.
4. Right of alienation.
5. Right of occasional disposition.
RIGHTS OVER PERSONS.
1. Right of immediate physical contrectation.
2. Right of immediate moral or pathological contrectation.
3. Right of physical contrectation through the intervention of another.
4. Right of moral or pathological contrectation through the intervention of another.
5. Right of individually commanding pesons.
6. Right of collectively commanding persons.
N.B.—The table of political powers, or the rights exercised by government, is not given here.
SEVENTH GENERAL TITLE OF THE CIVIL CODE.
All the rights which I possess have had a commencement—all will have an end. To give to a certain event the quality of epoch from which to date the commencement of a right, is to render that event collative with respect to that right: to give to a certain event the quality of epoch from which to date the cessation of a right, is to render this event ablative with respect to this right.*
Has the sovereign established a code of laws? He has, then, given to certain events the quality of collative events, and to others the quality of ablative events. These are two important catalogues. Do you at the present moment possess a certain right? It is because with reference to this right there has happened in your favour an event which belongs to the first catalogue, and none has happened which belongs to the second. How many assertions are comprised in that assertion apparently so simple—“You possess a certain right!”
To establish what events shall belong to these catalogues, is to establish the laws.
To have formed complete catalogues of them is to have completed the code of laws. To distinguish all these events—to give them their specific denominations, is a labour of the first necessity, and yet it is altogether a new task.
I shall here confine myself to a sketch of an analytical table of the principal events, in order to show what they resemble, and from what they are distinguished. These events are very nearly the same as the usual catalogue of titles; for common wants have given a certain uniformity, a certain correspondence to the laws of all people, at least in their essential features.
1. A right begins to belong to me—this right previously belonged to some other person, or it belonged to no person. Have I found a desert island? have I gathered fruits, cut down wood, collected minerals, caught animals upon this land? If the laws of my country permit it, I shall have become a proprietor without any person having ceased to be so.
Original discovery,—first collative event with regard to things newly subjected to the dominion of man. In this manner everything was originally acquired, but in our days such acquisitions are more rare: in proportion as the world is peopled, fortunes of this kind, as well as of every other, are obtained with greater difficulty.
2. The seeds which I have gathered and sown, have produced others: the birds, the animals that I have taken, have multiplied. Here is new wealth. Second collative event,—possession of productive things.
3. Uprooted trees, large fishes driven out of their course, have been thrown upon my island. Third collative event,—possession of a receiving thing, or thing serving as a receptacle.
4. Have I employed my labour upon my own things?—have I cut the wood or the stone?—have I polished the metal or spun the flax?—have I improved the inert matter by my industry? these are new sources of enjoyment. Fourth collative event,—amelioration of one’s own things.
Let us go on to things which are already under the hands of a master. Before a new possessor can be invested with them, it is necessary that an ablative event in relation to the ancient possessor should take place. This event may be either physical or moral: physical, if it happen without human intervention, moral, if it take place through the will of an individual, or the legislature. First physical ablative event, death of the proprietor; second, fortuitous obliteration of the distinctive character of the thing, as in the cases spoken of by the Romanists under the heads confusion, commixtion, &c.† In these two cases the loss is of necessity: the individual can no longer possess the thing, or the thing can no longer be possessed by him, without his possessing at the same time other things to which he has no right.
4 and 5. These two ablative events may be both expressed by a collative event. Instead of speaking of the death of the proprietor, we may say, succession in consequence of death; instead of saying, fortuitous obliteration of the distinctive character of the thing, we may say, as above, possession of the receiving thing.
Does the intervention of man enter into the ablative act,—it is then the law alone which operates to give this effect to the event, or it is some individual who acts in concert with it; this individual can only be the original proprietor, or the new proprietor, or a third party acting for them.
6. Sixth collative event,—private disposition.
7. Seventh,—disposition on the part of the magistrate, or adjudication.
8. Other collative events,—occupation by way of seizure made at the charge of a delinquent, or judicial seizure—occupation by way of capture by a foreign enemy, or hostile seizure (booty in war.)
In governments as civilized as are those of Europe, the quality of collative events has not been accorded to these two acts without the concurrence of adjudication.
9. Occupation of a thing abandoned.—To abandon anything is one method of disposing of it. It is to divest one’s self of it, without investing any particular person with it. This amounts to giving it to the first comer.
10. Is the disposition so regulated as only to take effect when the disposer is dead, and upon condition that he has not made any contrary disposition? There is here, on the one part, donation by testament;—on the other, testamentary succession.
11. Has the disposition had for its object the fictitious thing called charge, office, right of office? it is called nomination or election. The last word is most commonly used when the right of disposition is found divided between many proprietors. The collation by which I assume an office of my own accord for my own profit, may be called assumption of office; the act by which I am divested by another, dismission; the act by which I divest myself, demission.
12. Has the disposition for its object, a right over services to be rendered by the dispositor himself? it is what is sometimes understood by the words convention, treaty, contract, &c. I wish that we could exclusively employ to this effect some new appellation, such as obligatory promise.*
Adjudication, an act of the magistrate, naturally leads to the search for some other event which has served as a motive for this act. To what purpose does the law intend that the judge shall exercise his rights? It is not for his own advantage: it is only to accomplish other legal dispositions—to give effect to other events, collative and ablative.
To make a disposition, is to apply to such an effect the power of the laws,—is to command the services of the sovereign, or the magistrates. Is the disposition a lawful one? it possesses the qualities of those to which the sovereign is ready to lend his assistance. Is it unlawful? it is of the number of those to which he refuses it.
Thus explained, a disposition may be considered under two aspects, either as serving to modify a general law, or as making by itself, under the authority of the sovereign, a particular law. In the first point of view, the sovereign is represented as making a general law, and leaving certain words blank, that they may be supplied by the individual to whom he grants the right so to do. In the second point of view, the individual makes the law, and causes it to be sanctioned by the public force. The prince becomes literally the servant of the humblest of his subjects. To make a contract, is not to implore the services of the magistrate; it is to command these same services.
For marking the commencement of a right, I have hitherto only assigned a single event; but many may concur in it. It is therefore necessary to distinguish dispositive events into simple and complex. Among the elements of a complex event we may distinguish some by the title of principals, the others by that of accessaries. With regard to a testamentary succession, for example: To give it effect, at least two different events must happen: 1. The death of the first proprietor; 2. The birth of the new proprietor: add to these the steps that the heir must take in order to furnish proofs of his character as such, and those which are necessary on the part of the magistrate, to put him into possession; you may, in this complex event, give to the two first the name of principal events, and to the acts required from the heir and the magistrate, that of accessory events.
If any of those acts, to which the quality of collative or accessory events has been given, are omitted, there are so many grounds of nullity. To grant to an act a certain collative quality, is to prescribe a formality to be attended to, under the penalty of making void the disposition to which it refers, if it be omitted.
Analyze the kind of disposition, called election, with regard to a place either in the House of Commons in England, or in the Council of State at Venice, where aristocratic jealousy has exhausted all the art of combination. How many accessory collative events!—how many grounds of nullity to be avoided!—how many formalities to be regarded!—what a series of steps to be passed over before arriving at the last term, the establishment of the right!
13. Adjudication, as we have seen, is a collative event which supposes others, without which this would not take place. It is the same with regard to possession, an event which serves to prove the anterior existence of these other collative events, and to render them useless.
Possession may be actual or ancient. That possession may be called simply actual, when the party has only provisional security, so long as no collative event is found which operates in favour of his adversary, or, what amounts to the same thing, so long as no ablative event is found which operates to his prejudice.
That may be called ancient possession, which, in consideration of its duration, it is determined shall have not only the effect of provisional investment, but also the effect of destroying every collative event which might operate to the prejudice of the party, and in favour of his adversary; such is the case which has been characterized by the word prescription.
But what is it to possess? This appears a very simple question:—there is none more difficult of resolution, and it is in vain that its solution is sought for in books of law: the difficulty has not even been perceived. It is not, however, a vain speculation of metaphysics. Everything which is most precious to a man may depend upon this question;—his property, his liberty, his honour, and even his life. Indeed, in defence of my possession, I may lawfully strike, wound, and even kill, if necessary. But was the thing in my possession? If the law trace no line of demarcation, if it decide not what is possession, and what is not, I may, whilst acting with the best intentions, find myself guilty of the greatest crime, and what I thought was legitimate defence, may in the opinion of the judge be robbery and murder.
This, then, is a matter which ought to be investigated in every code, but it has not been done in any.
To prevent perpetual equivocation, it is necessary carefully to distinguish between physical and legal possession. We here refer to the former: it does not suppose any law, it existed before there were laws; it is the possession of the subject itself, whether a thing or the service of man. Legal possession is altogether the work of the law; it is the possession of the right over a thing, or over the services of man. To have physical possession of a thing, is to have a certain relation with that thing, of which, if it please the legislator, the existence may hold the place of an investive event, for the purpose of giving commencement to certain rights over that thing. To have legal possession of a thing, is already to have certain rights over that thing, whether by reason of physical possession, or otherwise.
I have said, that to have physical possession of a thing, is to have a certain relation with that thing. This was all that I have said—this is all that I could say at first. What is that relation? It is here that the difficulty begins.
To define possession, is to recall the image which presents itself to the mind when it is necessary to decide between two parties, which is in possession of a thing, and which is not. But if this image be different with different men—if many do not form any such image, or if they form a different one on different occasions, how shall a definition be found to fix an image so uncertain and variable.
The idea of possession will be different, according to the nature of the subject—according as it respects things, or the services of man, or fictitious entities—as parentage, privilege, exemption from services, &c.
The idea will be different, according as it refers to things moveable, or immoveable. How many questions are necessary for determining what constitutes a building a lodging! Must it be factitious? But a natural cavern may serve for a dwelling,—must it be immoveable? But a coach, in which one dwells in journeying, a ship, are not immoveables. But this land, this building,—what is to be done that it may be possessed? Is it actual occupation?—is it the habit of possessing it?—is it facility of possessing without opposition, and in spite of opposition itself?
Other difficulties: In reference to exclusive possession, or possession in common—in reference to possession by an individual, or by everybody.
Ulterior difficulties: In reference to possession by one’s self, or possession by another. You are in the habit of occupying this manufactory, you alone occupy it at this hour. I say you are only my manager—you pretend to be my lessee. A creditor contends that you are my partner. This being the case, are you, or I, or are both, in possession of the manufactory?
A street porter enters an inn, puts down his bundle upon the table, and goes out. One person puts his hand upon the bundle to examine it; another puts his to carry it away, saying it is mine. The innkeeper runs to claim it, in opposition to them both; the porter returns or does not return. Of these four men, which is in possession of the bundle?
In the house in which I dwell with my family is an escritoire, usually occupied by my clerk and by what belongs to him. In this escritoire there is placed a locked box belonging to my son; in this box he has deposited a purse entrusted to him by a friend. In whose possession is the bag—in mine, in my clerk’s, in my son’s, or his friend’s? It is possible to double or triple the number of these degrees; the question may be complicated at pleasure.
How shall these difficulties be resolved? Consult first primitive utility, and if it be found neuter, indifferent, then follow the popular ideas; collect them when they have decided—fix them when they are wavering—supply them when they are wanting; but by one method or another resolve these subtilties; or, what is better, prevent the necessity of recurring to them. Instead of the thorny question of possession, substitute that of honest intention, which is more simple. In the last case which I have supposed, the Roman lawyers would have recognised only one of the four as being in possession, yet all may be honest; and the possessor may have been dishonest as well as any one of the others. In this last case, make the decision depend upon possession,—you would have a culpable person unpunished, and three persons punished unjustly;—make it depend upon honest intention,—there will neither be impunity nor unjust punishment.
Observations upon Nomenclature.
What I call a dispositive event is what is called, in the writings of jurisprudence, title. I have been fully sensible that the terms collative and ablative events have the double inconvenience of length and novelty; and I have tried to make use of the word title. I have found it equivocal, obscure, defective—spreading a mist over the whole field of jurisprudence; whilst the two other terms are clear, sufficient, and yielding instruction in themselves.
In order to exhibit every point in which the word title is defective, it would be necessary to examine a great number of phrases in which it very imperfectly expresses the idea which the term collative or ablative expresses clearly. To say to a man, you have a title, is to assert with sufficient clearness that a collative event has happened in his favour; but if I say to him, you have no longer a title, this method of speaking is very little satisfactory: it does not express why, or how, this title no longer exists; it is necessary to understand that after a collative event had occurred, it has been succeeded by another of an opposite nature.
The word title is especially defective when obligations are spoken of. Using this word, how shall it be made to appear that a collative event has happened which has subjected you to a certain obligation, or that a certain ablative event has happened which has freed you from it? The result is, that in these four cases in which it would be necessary to use the word title, it would only express the meaning in one. In the three other cases it is improper or inapplicable. It is only necessary to try it in order to discover its insufficiency.
By employing the proper word event, it is possible to form a regular class of appellations.
In reference to the individual on whom it confers a right, an event may be called collative: in reference to him upon whom it imposes an obligation, it may be called onerative.
An ablative event, with respect to him from whom it takes away a right, may be called destitutive; with reference to him from whom it takes away an obligation, it may be called exonerative.
Is it wished to give to the two epithets ablative and collative a generic name, they may be called dispositive.
There is here a series of names which have a reference to each other; here is a generic name, and subordinate specific names. Take the word title, the logical ramification is stopped at the first step: there are no species of titles; it is an absolutely barren trunk.
The radical objection against the word title is, that it is obscure—it does not exhibit things as they are. To say that an event has happened, is to speak the language of simple truth—is to announce a fact which presents an image to the mind—it is to present a picture which could be painted. To say you have a title, is to speak the language of fiction: it is to utter sounds which do not present any image, unless they are translated into other words, as we shall shortly see. To possess, to have, in a physical sense,—here there is a real fact announced in a real manner; for it is to occupy the thing, or to be able to occupy it (posse, potes, to have power over it.) To possess a thing in the legal sense, to possess rights over a thing—there is an equally real fact, but announced in a fictitious manner. To have a title, to possess a title, in relation to these rights,—there is still a real fact, but announced in a manner still more fictitious—still more removed from presenting a real image.
I would not, therefore, employ the word title as a fundamental term, but once translated from the language of fiction into the language of reality, I hesitate not to employ it. It is not luminous in itself, but when it has received light, if it be properly placed, it may serve either to reflect or to transmit it.
In making a catalogue of dispositive events, care should be taken of three things:—1. To give every one of them names formed upon the same plan; 2. To give them only such names as are species formed from the genus designated by the word event; 3. Not to place, without notice, specific names in the same rank with the generic names of which they express the species.
The names of titles ought only to be names of events. Such are occupatio, accessio, traditio. But prescription is not so any more than the species into which it has pleased the lawyers to divide prescription. The same disorder may be seen amongst contracts. A contract is an assemblage of acts; the making of a contract is therefore an event: thus certain contracts have the names of acts—stipulatio, fide-jussio. But the names to the four real contracts are not the names of events; mutuum, commodatum, depositum, pignus (they have quitted the act to fix upon the thing which has been its subject.) It would have been as easy to have said mutuatio, commodatio, depositio, pignoratio: but the Romanists have not even suspected the characters of a good nomenclature. For the designation of the contracts which they call consensual (as if the others were not so,) five of the terms employed are the names of acts—emptio, venditio, locatio, conductio, emphyteusis; two are not—societas, mandatum,—they ought rather to have said societatis initio, mandatio.
With a nomenclature which at every step confounds things which it is most necessary to distinguish, how is it possible to be understood? With the Roman nomenclature, the noblest minds have not been able to escape from chaos.
Naturalists have never so far misunderstood the rules of logic. Linnæus has reformed the system of botany, but he did not find it in such a state of confusion as is jurisprudence. Before him, no botanist had been so unskilful as to arrange in the same line germination and the tulip—ramification and corn, &c.
I have no wish to enter into infinite details to show what has been among lawyers, both the classification of titles and the principles upon which they have been founded. The Romanists, Coccejius, Blackstone, only present us with the image of chaos. Those who do not know how much nonsense is found in the books of lawyers, must often imagine that I insist too much upon these clear and common things. I can fancy my readers saying to themselves, “But all this has been repeated a thousand times.”—Oh my readers, who thus reproach me, you know but little of the profound works of jurisprudence, which you esteem from their bulk as the depositories of the science of ages! When I analyze the most simple ideas, that which appears trivial to men of sense, is a paradox to the lawyers. Truth, utility, novelty,—hitherto these three objects travel together.
EIGHTH GENERAL TITLE OF THE CIVIL CODE.
Contracts are acts of collation or investment—conventions—laws more or less ephemeral, proposed by individuals, and adopted by the sovereign, provided they are valid. To what ought he to grant the seal of his authority? I answer, to all. For no private contracts would be made, except with a view to reciprocal advantage, and they cannot be restrained, without in the same proportion injuring the happiness of individuals. Entire liberty for contracts,—such would be the general rule. If there be any to which this sanction should be refused, it will always be for some particular reason. The reasons for declaring certain contracts invalid or unlawful, ought to be drawn from the nature of the contracts themselves, inasmuch as they are contrary to the public interest;—or to the interest of a third party, or to that of the contracting parties.
The exceptions should be indicated under a separate head. It would be proper that a catalogue of the contracts to which the law either absolutely or conditionally refuses its sanction, should be found in the code itself.
The law ought to act with openness: when it grants its sanction to a contract, it ought not to withdraw it secretly on account of conditions not avowed as such.
To enhance the cost of procedure, is to violate the promise it has made to sanction contracts. It is to render justice inaccessible to the poor, that is, to those who have most need of it. This is a truth none can deny, but which few have had the courage to avow.
I have employed the word contract or transaction, to express indistinctly an act of investment—an agreement or a collection—a mixture of agreements founded upon a single occasion.
This being understood, obligations may be distinguished into original and adjective. I call those original, of which express mention is made in the contract itself: I call those adjective, which the law thinks proper to add to the first. The first turn upon events which the contracting parties have foreseen; the others upon events which they could not foresee.*
It is thus that in every country the law has supplied the short-sightedness of individuals, by doing for them what they would have done for themselves, if their imagination had anticipated the march of nature.
The enlightened legislator, recognising these factitious obligations as being the work of his hands, will give them his support upon true and simple reasons, drawn from the principle of utility. Lawyers have founded these obligations upon fictions; that is to say, upon facts which never existed. Where there has been no convention, there they suppose that there have been one, two, a thousand; they have the effrontery or the folly to ascribe wishes to you which they avow you never had: and this what is called reasoning among them.
To decompose a certain contract—to show one by one all the pieces of which it is formed—to exhibit the collection of obligations included in this contract,—this is a species of mechanism hitherto unknown.
It is not only upon the author of the fundamental convention that the law imposes these adjective obligations; it imposes them also upon other persons, in consequence of certain connexions which they have with the principal person. It is thus that obligations pass to heirs, and sometimes to creditors. Why? Because their respective rights only extend to the net value of the goods of their principal.
An article which is in my custody is lost: ought I to be responsible? It is a case which divides itself into an infinity of others. It may have been of an abstract value, a sum of money, a wild animal. Ought it to be considered or not as in my custody? Did it possess the character of a loan, a deposit, or a pledge? And so on of the rest. Observe, that though in these cases mention is made of contract, there are many cases in which I may have a thing without convention, without promise, without any act of will in reference to it.
The legislator has two shoals to avoid, that of restraining services, and that of favouring negligence. If you give too great an extent to responsibility, you incur the first of these dangers—if you give too little, you incur the second.
I am not about to enter here into a critical examination of the Roman contracts: it would be a work of deadly ennui. If we were to imagine all possible defects—in their division, in their nomenclature—it would be difficult to exaggerate them. The idea of reciprocal promises, of mutual dispositions, so familiar to all the world, finds itself so obscured in this mischievous and absurd system of jurisprudence, that the lawyers, who have not ceased to explain it, always feel the necessity of new explanations. In vain they heap volumes upon volumes, light never breaks in upon the chaos.
Everything here must be done over again: a language which pretends to be learned has to be forgotten—a simple and familiar language to be taught; and those who know nothing, possess more than half an advantage over those who have to forget what the lawyers call among themselves by the name of science.
Division of Contracts.
A contract subsists between two parties when there exists between them a disposition either of goods or services, or a legal promise made by the one for the profit of the other.
A disposition or a transfer of goods is an act, in virtue of which a change is made in the legal right of two or more persons with regard to a certain object.
Contracts may be either momentary or permanent.
They may be divided into three classes:—
2. Disposition or transfer of goods from one party to another.
3. Mixed contracts, containing both dispositions and promises.
Dispositions and promises may be either unilateral or bilateral, according to whether there is reciprocity in the engagement or not.
2. Simple deed of donation, &c.
3. Unilateral promise of marriage.
1. Gratuitous donation.
3. Gratuitous loan.
4. Deposit to be gratuitously kept.
5. Hypothecation in futurum.
1. Agreement for sale, purchase.
2. Agreement for exchange.
4. Agreement carrying an obligation to enter into a certain contract.
5. Bilateral promises of marriage.
2. Sale and purchase.
3. Exchange of money.
4. Purchase of bills of exchange.
5. Purchase of rent without mortgage.
6. Purchase of rent with mortgage.
MIXED CONTRACTS, CONTAINING DISPOSITIONS AND PROMISES.
1. Loan of money, gratuitous or at interest.
2. Assurance, gratuitous or for a premium.
3. Renting a house, &c.
4. Letting a house, &c.
6. Marriage contract.
7. Contract of apprenticeship.
8. Hiring of a servant, of a workman, in a manufactory, or in agriculture or other productive labours; of a clerk, of a shopman.
9. Voluntary enrolment.
10. Donation in trust.
11. Legacy in trust.
12. Articles of partnership in commerce.
13. Deposit under an order of court.
14. Articles of partnership in manufactures.
15. Deposit in respect to a price to be paid in futurum by the depositor.
16. Loan of goods for a price in futurum.
SPECIES OF DEPOSITS.
These species are constituted by the different ends for which the contract is established.
(1.) On account of the depositor:—
1. Simply to keep the thing—housekeeper, innkeeper.
2. Simply to transfer from one place to another—carrier, captain of a vessel, for transport.
3. To improve—farrier, dyer, miller, tailor.
4. To employ without amelioration, but without consumption, that is to say, entire destruction—as tools, fixed capital of a manufacture, servants.
5. To be consumed—as wood for firing, drugs for dying, ink for writing.
(2.) On account of the depositary:—
6. Deposit of a thing gratuitously lent.
7. Deposit of a thing hired.
(3.) On account of the depositor and depositary:—
8. Association with regard to things acquired by a co-associate, for the profit of the society.
(4.) On account of the one or the other, according to the event:—
9. The pledger, and receiver in pledge.
NINTH GENERAL TITLE OF THE CIVIL CODE.
This general title is established, that it may serve as a general depot for the laws which regard the different offences against these respective states. Here ought to be found the catalogue of the classes of persons who possess rights or duties due to them:—masters, servants, guardians, wards, parents, children, proxies, &c.; whilst with respect to political conditions—that is, those which are founded upon some political power, or some duty subordinate to it—reference should be made to the constitutional code.
The domestic or civil state is only an ideal base about which are ranged rights and duties, and sometimes incapacities. It is proper in all conditions to distinguish the work of nature, or of the free man, from the work of the law. The natural state is the foundation, the base; the legal state is formed by the rights, the obligations, which the law adds thereto. To know a state, is therefore to know separately the rights and the obligations which the law has added to it: but what is the principle of union which binds them together, to make the factitious thing which is called a state, a condition? It is the identity of the investive event with respect to the possession of that state.
Under this head, the most striking examples will be found of the variety and extent of adjective obligations. A boy and a girl marry—they do not see at first in their union anything more than the accomplishment of the wish which had been the motive of it. At the same moment the law interposes and imposes upon them a multitude of reciprocal obligations, of which the idea had never been presented to their minds.
It is true that this distinction of fundamental and adjective obligations depends only upon the negligence of the legislator. If he had taken pains to facilitate the knowledge of the laws, the citizen would have known all the obligations which attached to him upon assuming a certain condition, and all, whether principal or accessory, would have been equally voluntary.
In the notice of civil conditions, all trades should be comprehended. All professions which have particular rights, or duties, or which are subjected to certain incapacities.
In the article appropriated to each condition, the following should be the order of the matter:—1. Methods of acquisition; 2. Methods of losing; 3. Rights; 4. Duties; 5. Incapacities; if there be any. Rights ought to precede duties, because in many cases they are the source of duties. If there be a chronological order in the events from which rights and duties take their date, such order should be followed. The effects which result from each event ought to be distinct from those which result from any other.
TENTH GENERAL TITLE OF THE CIVIL CODE.
From the word person, and others which are employed to represent it (such an one, he who, &c.) is derived a collection of titles which should have their common centre in this one.
To whom shall the law attribute the capacity of acquiring and of contracting? To all, says the general rule. If there be persons to whom it is refused, this ought to be in consequence of some particular reason. Thus without the exceptions, there would be no necessity for the general rule. It is only required that the exceptions may be placed under it.
Thus the law will not allow the right of investiture to a benefice in the church to a Jew, lest he should abuse it to the prejudice of the church. It does not allow a like right with regard to real property to a minor, lest he should abuse it to his own prejudice. It does not allow this right, nor even that of its occupation, to a madman, lest he should abuse it, either to his own prejudice or to that of another.
OF THE PARTICULAR TITLES OF THE CIVIL CODE.
In the Penal Code, the titles are easily arranged: they correspond with the catalogue of offences. It is not the same with the Civil Code: the particular titles may equally be placed under any of the general titles, as we shall soon see.
It is not possible to complete a penal code without having determined the plan of the civil code; for to have a complete penal code, it is necessary that the whole body of the law should be found included there—at least by reference. Thus true is it that the idea of a complete penal code includes in itself the complete idea of all the subjects of the other codes. But when all the materials are collected, it remains still to assign them their places.
What is the clue to guide us in this distribution? It is still the principle of utility.
The laws being given, why has the legislator prepared them? The answer is simple, as it is incontestable: “With the intention that each disposition should be present to the minds of all those who are interested in the knowledge of it, at the moment in which this knowledge may furnish them with motives for regulating their conduct.” For this purpose it is necessary—1. That the code be prepared altogether in a style intelligible to the commonest understanding. 2. That every one may consult and find the law of which he stands in need, in the least possible time. 3. That for this purpose the subjects be detached from one another, in such manner that each condition may find that which belongs to itself, separated from that which belongs to another.
“Citizen,” says the legislator, “what is your condition? Are you a father?” Open the chapter “Of Fathers.” “Are you an agriculturist?” Consult the chapter “Of Agriculturists.”
This rule is both simple and satisfying. Once announced, it is comprehended: it cannot be forgotten. All legislators ought to follow so natural a method, says Philosophy—Not one of them has ever dreamt of it, replies the lawyer.
The catalogue of all these conditions may be found in the body of the laws, under two different orders. Under the general title of States or Conditions, it may be placed in an analytical and systematic form, for the instruction of lawyers. In the index it ought to be found in alphabetical order, for the convenience of the subjects.
There are many subjects which might be sought for indifferently, under more than one title: but in all cases in which either a concrete or an abstract name may be given to a title, the concrete name ought uniformly to be employed in the text, and the abstract name referred to the index. Thus in the text ought to be found the titles of Husbands, of Wives, and not that of Marriage; the title of Heirs, and not that of Successions.
But all these titles rejected from the text, ought to be carefully collected in the index; for it is with respect to this appendix to the book, altogether different from what it is with respect to the book itself—the more voluminous it is, the more easily it is consulted.
After the titles drawn from persons, come those drawn from material beings—from things. These are preferred to abstract titles for two reasons:—1. Because they must naturally present themselves to the least instructed minds; 2. Because the catalogue is more ample and uniform.
At last we reach the titles drawn from the different kinds of contracts. It is true that the names of contracts are abstract terms: but contracts are the acts of persons, and there is no kind of contract which does not give a particular name to the persons who engage in it. It is not necessary, therefore, to employ concrete titles, but reference may be made to the persons themselves. Thus, instead of saying purchase, sale, borrowing, lending, we may say, purchaser, seller, borrower, lender. This method will better preserve the uniformity of the plan, and the great end of the arrangement, which is to present to every one that which belongs to him, separate from what does not belong to him. Besides, all contracts have not two correlative names which correspond with those of the two contracting parties. The greater number have but one—for example, deposit, assurance. Also with regard to each contract, there may be others beside the mutual obligations—there may be particular obligations on particular parties: instead, therefore, of heaping them all under the head of assurance or deposit, it would be better to make two separate articles,—assurer, assured—depositor, depositary.
Under this point of view, the titles of things contracted for would only be a consequence—a subdivision of the personal titles.
A question to be cleared up:—There are few contracts which do not in some manner or other refer to things. Such a contract being supposed, ought the text of the laws regarding it to be found under the title of contracts, or under that of things?
If it refer to things in general, and dispositions in general, it should be placed under the title of contracts. If it refer to a particular kind of thing, and a disposition which only applies to this kind, and not to another, it should be placed under the title of things. Example, sale of a horse;—the seller bound to warrant it free from certain diseases, unless he stipulates to the contrary;—the warranty does not apply to other kinds of animals. It would be better that this obligation should be found under the title of horses, than under that of sellers, since it does not attach to any other kind of seller beside the seller of horses.
The following is an idea of the subordinate titles which would find place under a real title. I take for example, that of horses:—
It is to be observed, that regard is solely paid to the arrangement, and not the matter. The laws which are or have been cited, are cited without deciding whether they are good or bad: they are counters which I use in reckoning—it would be misapplied labour to examine their defects in this place.
1. Persons incapable of acquiring property in horses, or to whom the acquisition is interdicted. Ex. Catholics in England, with respect to horses of a certain value. Written law of England. (Offence against the sovereignty.)
2. Particular means of acquiring them: capture of a highway robber on horseback, and conviction of the delinquent. (Written law of England—remuneratory law.)
3. Limitations of the right of occupation. Cruelty prohibited. Prohibition as respects the using of them for riding by Christians. (Law in certain provinces of Turkey.) Prohibition of the exportation of war horses Offence against the public force.
4. Acts commanded connected with their use. Marks to be imprinted upon hired horses, that thieves who use them may be recognised, or that the individuality of the animal may be proved, for the purpose of levying a tax upon it. Reference to the personal titles of post-horse keepers, carriers, innkeepers, &c.
5. Limitations of exclusive property;—rights granted to public officers to employ them on certain conditions—to seize them for the military service—to destroy them for the purpose of stopping an epidemic, &c.
6. Limitation of the right of disposal—Example, prohibition to export, &c.
7. Adjective obligations attached to the rights of occupation. Ex. Taxes to be paid periodically. Taxes to be paid occasionally at turnpikes. Obligations imposed in consequence of borrowing, hiring, pledging, forced labour,—as of feeding, physicking, &c. Reference to the titles of contracts, borrowers, lenders, hirers, travellers, &c.
8. Adjective obligations attached to the right of disposal. Example: Presumed warranty against disease and other defects.
9. Adjective rights over services attached to the right of occupation. Right to cause the horses to be received and taken care of by innkeepers, farriers, &c. Reference to the personal title of people in trade, in which is exhibited the obligations under which they exercise their respective trades, of serving whoever requires them. (Offence, non-reddition of service.)
10. Adjective rights over services attached to the right of disposal. Example, Right of having a place assigned for one’s horse in a horse market, by the person employed in keeping the market. (Offence, non-reddition of service.)
It may be remarked, that the particular titles of the civil code are not constructed in the same manner as those of the penal code. In the latter, the point of re-union is the identity of the kind of act which is referred to: everything is referred, for example, to theft, homicide, adultery, &c. In the titles of the civil code, the point of re-union is the identity of the person or the condition:—everything is referred to fathers, husbands, masters, guardians, &c. There is, however, a more distant point of view, in which all distinctions disappear. If the distinctive principle of the personal codes are completely followed out, it will be found that the particular titles of the penal code belong to them; for to commit an offence is to become a delinquent—a thief, a seducer, an assassin, a forger, &c. The agent might receive his denomination from the act.
Doubt to be cleared up:—In most cases the same law necessarily bears upon two persons at least at one time;—he upon whom an obligation is imposed—he upon whom a right is in consequence conferred. Under each of these two titles the law ought to be mentioned; but under which of them ought it to be stated at full length? This depends upon circumstances, and the choice is not of much consequence.
The most natural procedure appears to be this. Present the entire law to that one of the parties who has most need to be instructed. Which, then, is this party? It is commonly him upon whom the duty is imposed, because of the penalties which accompany the infraction of this duty,—because the punishments which the law is forced to employ are generally stronger than the rewards or advantages which it confers.
There are also other reasons for preferring this arrangement:—
1. There are many cases in which the favoured party is the whole public, and not an individual; for example, taxes. All that it is necessary to address to the public in the general penal code, is the definition of the offence—non-payment of taxes, with suitable references. Those things which serve to indicate the different taxes imposed, and the accessary obligations added for insuring the collection of these same taxes, should be referred to the particular titles of the different classes taxed, and of the persons charged with the collection of the taxes.
2. The party upon whom it is wished to impose an obligation, is necessarily easily pointed out and distinguished. The legislator, without doubt, ought not to be ignorant what classes he intends to favour; but there may be many classes favoured by the same right, and it may be more difficult to particularize them.
3. It may also happen, that certain classes may find themselves favoured, of whom the legislator did not think. When a tax, for example, is laid upon a certain species of linen,—the object of the tax, as such, may only have been the general good of the state in respect of its wants, which have rendered contributions necessary. The public in general will have been the party intended to be favoured, without thinking of any other. There may, however, be a class of men who will derive from it a more immediate advantage: such would be found in persons engaged in a rival manufactory, manufacturing a species of cloth more or less suitable for the same purposes.
This detail would have been unnecessary, except for the light it throws upon the plan of distribution; for otherwise, it is of little consequence whether the law be placed under one title or another, provided the references are sufficiently numerous and well chosen, and that the mass be divided in such manner that each class be only charged with such matters as particularly interest it.
Such is the plan of distribution which I would propose for matters of civil law. It appears to me the clearest—that in which the atoms of the law would most easily arrange themselves around their centre, by an attraction which appears natural in proportion as it is simple. The sketch of this plan may not be in sufficient detail for those who have not attained a certain degree of legal knowledge; but those who have studied what has been honoured with the name of system—those who have penetrated into the labyrinth of the civil laws, will at once be sensible how new this plan of distribution is, and that if it have any merit, it is that of introducing a uniform principle, which presides over the whole arrangement.
OF ELEMENTARY POLITICAL POWERS.
The Constitutional Code is principally employed in conferring powers on particular classes of society, or on individuals, and in prescribing their duties.
Powers are constituted by exceptions to imperative laws. Let me explain myself.
Every complete law is in its own nature coercive or discoercive. The coercive law demands, or prohibits: it creates an offence, or in other terms, it converts an act into an offence:—“Thou shalt not kill,”—“Thou shalt not steal.” The discoercive law creates an exception: it takes away the offence; it authorises a certain person to do a thing contrary to the first law: “The judge shall cause such an individual to be put to death,”—“The collector of taxes shall exact such a sum.”
Duties are created by imperative laws addressed to those who possess powers: “The judge shall impose a certain punishment, according to certain prescribed forms.”
The constitutional code will include an explanatory part, serving to indicate those events by which certain individuals are invested with certain powers:—succession, nomination, presentation, concession, institution, election, purchase of place, &c. &c.; and the events by which such individuals are divested of such powers:—dismission, amotion, deposition, abdication, dereliction, resignation, &c.
To analyze, to enumerate all the possible political powers, is a metaphysical labour of the highest difficulty, but of the greatest importance. In general, these rights, these powers, will not much differ from domestic rights and powers. If they were placed in a single hand, they would only differ in extent; that is to say, in the multitude of persons and things over which they would be exercised. But their importance has ordinarily led to their being divided among many hands, in such manner, that for the exercise of a single kind of power, the concurrence of many wills is required.
Hitherto the political powers of one government have been, with regard to the political powers of another government, objects which have had no common measure. There has been no correspondency. There are only local names for expressing them: sometimes the names themselves differ—sometimes the same names are expressive of objects altogether different. There is no court-guide which would serve for every court—there is no universal political grammar.
The titles of offices are mixtures, dissimilar aggregates, which cannot be compared together, because no one has ever tried to decompose them—because no one has ever known their primordial elements. These elements, if any one shall ever discover them, will be the hitherto unknown key of every given political system; and the common measure of all actual and possible systems. But how shall I frame a uniform plan for the distribution of the political powers in any state?—from what language shall I borrow the vocabulary of offices? If I employ the French, it will only serve to express the distribution of powers in the French government. What relation is there between the consuls of France and the consuls of Rome, or the consuls of commerce?—between the king of England, the king of Sweden, the king of Prussia?—between the emperor of Germany and the emperor of Russia—between the ancient French peer and duke—the English duke and peer—the grand-duke of Russia and the grand-duke of Tuscany—between the mayor of Bordeaux and the mayor of London? &c. &c. A volume would not suffice to point out all these disproportions.
Such is the first difficulty. It has been the torment of those who have had to give an account of a foreign constitution. It is almost impossible to employ any denomination to which the readers shall not attach ideas different from those which it is intended to convey.
This confusion will cease, if it be possible to employ a new nomenclature, which shall not be composed of official names, but which shall express the elementary political powers exercised by those different offices.
Two methods may be employed for this decomposition:—1. By considering the end towards which they are directed:—end of interior or exterior security—end of security against crimes, or against calamities, &c.;—2. By considering the different methods by which these ends may be attained: the method of operating may have for its object persons or things. This method of analyzing political powers presents the following results:—
1. Immediate power over persons.—This is what is exercised over the passive faculties: it is the power of doing with one’s own hand acts whose effects terminate upon the person of another, whether upon his body or his mind. It is the power of doing acts which would be offences against the person, on the part of an individual who was not authorized. Directed to a certain end, it is the power of punishing: directed towards another end, it is the power of restraining and constraining. This power is the foundation of all others.
2. Immediate power over the property of others.—This is the power of making use for the public, of things the principal property in which belongs to individuals. For example, the power of a minister of justice to break open the house of a person not accused, that he may seek for an accused person there—the power of a public courier, in case of need, to make use of the horse of an individual.
3. Immediate power over public things;—that is, of those which have only government for their proprietor.
4. Power of command over persons, taken individually.—This operates upon the active qualities. It has commonly for its foundation immediate power over the person, without which he who commands would not be sure of finding motives for making himself obeyed. In the beginning of political societies, these two powers must have been united in the same hands, as they still are in domestic society. The habit of obedience being once established, we have almost lost sight of the dependence in which the more elevated power is found, in respect of that from which it springs. The first is only exercised by kings and their ministers; they have left the second to a baser sort of men. Ulysses chastised with his own hand the petulant Thersites. Peter I. was also the executor of his own decrees: he proudly struck off with his imperial hands, the head of the wretch whom he had condemned. The office of executioner does not degrade the emperors of Morocco; and their dexterity in these punishments is one of the pomps of their crown. In civilized states, the nobler power depends no less upon the ignoble power, than in barbarous countries;—but the disposition to obedience being once established, everything operates without our thinking of the constraint which is its first foundation.
5. Power of command over persons taken collectively.—A state must be very small, in which individuals could be governed one by one: this can only take place in a family. A company of soldiers can only be manœuvred when a head is given to the whole together. It is in the power of making men act by class, that the strength of government consists.
6. Power of specification.—I thus denominate the power of determining of what individuals particular classes shall be composed, over whom command may be exercised. This very extensive power is only, in respect to persons, the power of investment or divestment with regard to a certain class—class of nobles, class of judges, class of military, class of sailors, class of citizens, class of foreigners, class of offenders, class of allies, class of enemies.
The power of specification subdivides itself into two principal branches: specification of persons—specification of things.
Power over persons subdivides itself into the power of locating in a class, and the power of dislocating.
Power over things consists in setting them apart for a certain use, and making it a crime to employ them for any other.
To specify a time, a day as set apart for a religious festival, on which it is unlawful to work.
To specify a place as consecrated; for example, a church, an asylum.*
To specify a metal as the legal coin of the country.
To specify a dress as appropriated to a certain condition, &c. The right of specification over things embraces the totality of things.
It ought to be remembered, that each of these powers may be indefinitely subdivided, according to the number of hands in which it is placed, and the number of wills which may be required for its legitimate exercise. Hence the right of initiation, or right of proposing; right of negation or right of rejecting. The co-possessors may form only a single body, or many separate bodies. The concurrence of many bodies may be necessary to the validity of an act of command, as well as the concurrence of many individuals in a single body.
All these powers may be possessed in chief, or in a rank more or less subordinate.
The subordination of a political power to another, is established—1. By the cassability of its acts, or their liability to be abrogated; 2. By its subjection to the orders it receives.
7. Attractive power.—I thus call the power of rewarding or not rewarding.—Power of influence, which is partly remuneratory and partly penal. Influence is one source of motives. In Government, it is constituted—
1. By the power of locating in regard to desirable offices—Reward.
2. By the power of dislocating in regard to desirable offices—Punishment.
3. By the power of locating in regard to undesirable offices—Punishment.
4. By the power of dislocating in regard to undesirable offices—Reward.
There are three other sources of influence less direct:—
1. Free employment of wealth.
2. The power of rendering or not rendering all sorts of free services.
3. Influence founded upon the reputation of wisdom.
The attractive power which is exercised by means of reward, is more dangerous than the coercive power, because it is liable to be more arbitrary. Every rich man possesses a a portion of it in consequence of his wealth, without possessing any political power by name. It is only in a small number of cases that it has been possible to subject the exercise of this power to fixed rules. The laws against bribery and corruption are examples, and every one knows how difficult it is to execute the laws against the purchase of suffrages at an election, or against the venality of persons in official stations. Success is most easily attained by indirect rather than direct means:—by rendering the offence difficult of commission; by diminishing temptation, by taking away the means of its concealment; by the cultivation of sentiments of honour, &c.
Recapitulation—Analysis of Abstract Elementary Political Powers.
1. Immediate power over persons.
2. Immediate power over the things of another.
3. Immediate power over public things.
4. Power of command over persons taken individually.
5. Power of command over persons taken collectively, or over classes.
6. Power of specification or classification—
7. Attractive power. Power of granting or not granting rewards.
OF ELEMENTARY POLITICAL POWERS—
The foregoing enumeration of political powers presents a new nomenclature, which requires justification, and can only be justified by showing that the divisions most generally adopted at present, leave all these powers in a state of confusion and disorder.
By some, these elementary powers are divided into two classes: 1. Legislative power; 2. Executive power. Others add to these a third class—power of imposing taxes; others again add a fourth class—judicial power.
When one of these plans has been adopted, it has been chosen without much regard to their differences; everything has been then considered as sufficiently defined, and reasons have then been sought out to support it. I shall endeavour to show how vague and obscure these terms are.
By each one of them, sometimes one thing and sometimes another, is understood. Of each power no one knows to which class to refer it—no two persons entertain the same ideas as to what is called legislative or executive power.
Between the condition of a science, and the condition of its nomenclature, there is a natural connexion. With the best arranged nomenclature, we may still reason badly; but with a badly arranged nomenclature, it is not possible to reason correctly.
Legislative Power.—Everybody agrees to understand by this, the power of commanding. Little scruple is made of employing this expression when this power is only exercised over classes, especially when the extent of these classes is considerable.
This title is more willingly yielded to a power, whose orders are capable of perpetual duration, than to a power whose orders are in their own nature perishable. It is agreed to consider that the exercise of this power is free from the restraints which characterize judicial power. Sometimes it is supposed that it is exercised in chief; sometimes the same word is employed to express cases in which it has only a subordinate exercise. We are much inclined to call that legislative power, which is exercised by a political body: executive power, that which is exercised by a single individual.
Judicial Power.—Among the authors who have considered this power as distinct from legislative power, I have not found one who has appeared to understand the difference.
The orders of the legislator bear at the same time upon a numerous class of citizens. But do not those of the judge the same? does he not judge communities, provinces?
Those of the legislator are capable of perpetual duration: those of the judge are the same also.
Those of the judge bear upon individuals: but among the acts which emanate from the power called legislative, are there none which do the same?
Before a judge can issue his orders as a judge, a concurrence of circumstances is requisite, which is not requisite for legalizing the acts of the legislature:—
1. It is necessary that an interested party should come and require the judge to issue the order in question. Here there is an individual to whom belongs the initiative, the right of putting into activity the judicial power.*
2. It is necessary that the parties to whom the orders of the judge may prove prejudicial should have the power of opposing them. Here there are other individuals who have a species of negative power—power of stopping the acts of the judicial power.
3. It is necessary that it should have proof produced of some particular fact upon which the complaint is founded, and that the adverse party be permitted to furnish proof to the contrary. Here, then, is the person accused whose concurrence is required.
4. Where there is a written law, it is necessary that the order of the judge should be conformable to what such law prescribes:—order to the effect of punishing, if it respects a penal case—order to the effect of investing the party with a certain right, or of divesting him, if it respect a civil case.†
Executive Power.—At least twelve branches of this power may be distinguished:—
1. Subordinate power of legislation over particular districts—over certain classes of citizens—even over all, when it refers to a particular function of government. The smaller the district—the shorter the duration of the order—the more inconsiderable the object, the more one is led to subtract this power from the legislative species, in order to carry it to what is called the executive. When the supreme power does not oppose these subordinate rules, it is the same as if it adopted them: these particular orders are, so to speak, in execution of its general will. But whatever it is, it is the power of command.
2. Power granted to classes of men—to a fraternity—to a corporation: powers of legislation, the power of making bye-laws: it is still the power of command. To say, I will maintain the laws made by a certain body, is the same as making them one’s self.
3. Power of granting privileges to individuals, titles of honour, &c. It is the power of specification in individuos.
4. Power of pardoning. If it be exercised after inquiry into the facts, it is a negation of the judicial power: if it be exercised arbitrarily, it is the legislative power. Power of command exercised in opposition to judicial orders.
5. Power of locating or dislocating subordinate officers. It is a branch of the power of specification.
6. Power of coining money, of legalizing it, of fixing its value—specification in res.
7. Military power. That of enrolment and disbanding, is a branch of the power of specification in personas. That of employing, is a branch of the power of command. The circumstance which has caused it to be considered as a separate power, is the use for which it is established.
8. Fiscal power. This power in itself does not differ from that possessed by the cashier of an individual, with regard to the money which is entrusted to him. It is constituted a public power, in consideration of the source from which the money is derived, and the end for which it is designed.
9. Power of administration over the magazines, munitions of war, and other public things. This is the same as the management of a house: the object alone makes it a political power.
10. Power of police—specification—command. We may observe, that for the exercise of military power, the power of police, and even of management, a certain quantity of immediate power is requisite, both with regard to the persons and the goods of the citizens in general. In order to make use of any power whatever, it is necessary that the superior officer should possess immediate power over his inferiors, either by being able to dislocate them, or by some other means.
11. Power of declaring war and making peace. This is a branch of the power of specification. To declare war, is to transfer a class of foreign friends into the class of foreign enemies.
12. Power of making treaties with foreign powers. The obligation of treaties extends to the mass of the citizens: the magistrate who makes a treaty, exercises therefore a power of legislation; when he promises to another sovereign, that his subjects shall not navigate a certain part of the sea, he prohibits his subjects from navigating there. It is thus that conventions between nations become internal laws.*
I do not know to what length this subdivision of the executive power may be carried: the relation which each individual branch bears to each of the others is altogether undetermined. They are always supposed to have determinate limits, but these limits have never been assigned to them.
The term executive power presents only one clear idea: it is that of one power subordinate to another, which is designated by the correlative appellation of legislative power.
Need we then be astonished that there is so much opposition among political writers, when all their works have been composed of terms so vague, so ill-defined, and to which each has attached the ideas to which he was accustomed!
It is not necessary absolutely to exclude these terms adopted into the vocabulary of all the nations of Europe; but it was necessary to show how far they were from representing the true elements of political powers.
The new analysis which has been attempted has many weak points: it is a subject nearly the whole of which remains to be created. The work has been begun, but it will require much labour and patience to finish it.
PLAN OF THE POLITICAL CODE.
If we detach from the code of laws a part which should be called the constitutional code, the following subjects might be referred to it:—
1. The methods of acquiring the different offices established in the state, and also the methods of losing them. The greater share the people have in the government, the greater the space which this part will occupy.
2. An exposition of the powers annexed to these offices. This part would be assimilated in form to the civil code.
3. An exposition of the duties attached to these same offices. This part would be assimilated in form to the penal code.
4. An exposition of the formalities which ought to accompany the exercise of the powers attached to these offices, in those cases in which they are exercised by political bodies. This part would sometimes appear under a penal, sometimes a civil face: under the first, when punishments are pronounced against individuals; under the second, when there is no other punishment than that of nullity as to the acts of the body.*
5. To this code would be consigned the laws which directly bear upon the office of the sovereign. Laws of this kind clearly exhibit certain acts as directed or prohibited. From this quality they bear the aspect of penal laws. On the other hand, it is natural that they should not express any punishment to be inflicted in case of contravention. Who could inflict such punishment? In this respect they would be contrasted with the penal law.
Among these laws, the following species may be distinguished:—
1. Privilege granted or reserved to the original mass of the nation—as liberty of worship—right of carrying arms—right of confederation.
2. Privileges granted to provinces acquired, whether their union to the body of the state arise from succession, or from voluntary union; as that of not being taxed but by themselves.
3. Privileges granted to conquered districts at the time of capitulation, and confirmed by treaties of peace.
4. Privileges granted to districts ceded by treaty without having been conquered.
Although it may not be easy to apply positive punishment to a delinquent sovereign, such laws ought not to be regarded as of no value. They are of great importance, though positive punishments would be of no force: they are attended by the immediate punishment of dishonour to the sovereign, and discontent on the part of his subjects:—by ulterior punishment in revolt, and loss of sovereignty. Hence we see in many European countries, sovereigns scrupulously respecting the privileges of subjects and of provinces.
PLAN OF THE INTERNATIONAL CODE.
The international code would be a collection of the duties and the rights existing between the sovereign and every other sovereign.
It may be divided into the universal code, and particular codes.
The first would embrace all the duties that the sovereign was subject to—all the rights with which he was invested with regard to all other nations without distinction. There would be a particular code for every nation, with which, either in virtue of express treaties, or from reasons of reciprocal utility, he had recognised duties and rights which did not exist with regard to other states.
The universal code would contain concessions on the one part, demands on the other: ordinarily, reprocity would have place.
These rights and these duties between sovereigns, are properly only the rights and duties of morality. For it can scarcely be hoped that all the nations of the world will enter into universal treaties, and establish tribunals of national justice.
Division of the laws which compose a particular code:—
1. Laws executed—Laws to be executed. The first are those which regard the two sovereignties in their character of legislators—when in virtue of their treaties they make conformable engagements in their collections of internal law. A certain sovereign engages to prevent his subjects from navigating a certain part of the sea; he ought then to make a change in his internal laws prohibiting this navigation.
Laws to be executed are—1. Those which are fulfilled simply by abstaining from the establishment of certain internal laws. 2. Those which are fulfilled by exercising or abstaining from the exercise of a certain branch of sovereign power; by sending, or abstaining from sending, assistance by troops or money to another foreign power. 3. Those whose fulfilment only regards the personal conduct of the sovereign; for example, those by which he is obliged to employ or not to employ a certain formula in addressing a foreign sovereign.
Second Division—Laws of peace—laws of war.—Those which regulate the conduct of the sovereign and his subjects in time of peace or war, towards a foreign sovereign and his subjects.
The same distribution which has been followed with regard to internal laws, whether civil or penal, should guide the arrangement of the international laws.
In the civil code, for example, the demarcations of the rights of property with respect to immoveables, may be the same. There are some properties which belong in common to the subjects of a given sovereign. There may be some which belong to a given sovereign, and a certain foreign sovereign, as seas, rivers, &c. Thus, in former times, the republic of Holland had acquired a species of negative service at the expense of Austria in the port of Antwerp. Thus, by the treaty of Utrecht, the English had acquired another with regard to the port of Dunkirk. The right of marching troops across a foreign country is a species of positive servitude.
War may be considered as a species of procedure, whereby it is sought on the one part or the other, to obtain or keep possession of advantages, to which each thinks himself entitled. It is a writ by which execution is made upon a whole people. The attacking sovereign is the plaintiff; the sovereign attacked is the defendant. Those who sustain an offensive and defensive war, resemble an individual who has filed a cross-bill, and sustain two characters at the same time. This parallel is of no assistance as to the form or arrangement of the laws, but use may be made of it by the introduction of the principles of humanity, which would soften the evils of war.
When two sovereigns are at war, the condition of their subjects is respectively changed; from foreign friends they become foreign enemies. This part of international law brings us back to the plan of particular codes, in which sovereigns might stipulate for clauses relative to these changes.
PLAN OF THE MARITIME CODE.
The Maritime Code has many parts related to the penal code, the civil, the military, and the international codes.
1. Penal.—When robbery is committed upon the sea, or by persons who come by sea to commit it, in certain cases a particular name is given to it—it is piracy. But what is the difference whether these offences have for their theatre the dry land, or land covered with water? And wherefore give them different names?
2. Civil.—The changes which the sea experiences, and which it occasions, give rise to many methods of acquiring and losing. Lands are abandoned by it—islands are discovered in it—shipwrecked goods are thrown up by it: from these result a great number of particular arrangements.
Ships are at once houses and carriages. Large vessels are floating castles. The sea, if we may use an expression so contradictory in appearance, is a species of immoveable always in motion, whose value is in certain situations very considerable, in others null: here it is fruitful, there barren; here it becomes dry, and there it again covers the dry land. Everywhere it is a highway, and a highway that repairs itself. In its furthest distances, it is as a heath which leads to nothing, and brings back nothing.
This is not all: it is too often a field of battle, and by this the maritime code has a part in common with the military code.
We see in an instant the subjects which it offers for the international code. The right of chase—the right of harvest, or, as it is called when speaking of the sea, the right of fishing—cannot belong everywhere to all the world. It follows, then, that upon the sea, as well as upon the dry land, certain properties can be established. But as to the right of passage, it may be common to everybody, without injury to any. It remains to be examined how all these points may be regulated for the common utility.
The maritime code touches the political code, in consequence of the powers granted to naval officers, admirals, captains, &c.
A ship is a little wandering province, like the island of Laputa. Some vessels of war contain more citizens than there are in the republic of Saint Martin.
Hitherto the distinction between maritime and terrestrial law, if we may use the term, has not appeared to rest upon solid foundations. Still it is desirable, because of the particular circumstances in which sailors are placed, that they should have a separate code, distinct laws, for themselves. It is a means of simplifying the general code.
Vessels are liable to injure one another. This is only a particular case of damage, in which there may be, as in every other evil intention, a smaller or greater degree of fault, or pure accident. Particular regulations may be made upon these points, and placed in the maritime code; or in treating of damage in the general penal code, the most common events with reference to ships may be included there.
The police of ports would find its most natural place in this code.
PLAN OF THE MILITARY CODE.
The functions of the military are like those of justice and police. Sometimes they are employed in the prevention of evil—sometimes in punishing it; sometimes the two objects are united.
In former times, military law had greater connexion with the civil, than it has at present. It was thus under the feudal system. Landed property was given instead of salary: engagements to perform military service were the principal means of acquiring land; the non-rendering of these services was the principal means of losing it. Every baron exercised almost unlimited power over his unhappy vassals: all rights floated in uncertainty. In these times of anarchy, what ought we to call each powerful chief? Was he a sovereign, or a subject?—a robber, or a soldier?—a magistrate, or a tyrant? As to the multitude, their condition was too clearly decided: it was a condition of the harshest slavery.
How free soever may be the constitution of a state, powers over the people, to be exercised upon certain occasions, must necessarily be given to the defenders of such country, that they may be able to protect it. These powers, always objects of suspicion, are much more so when undefined. The first object should be to shut them up into the narrowest limits; the next, to mark out these limits with the greatest clearness; and if on certain occasions they must necessarily be unlimited, it is better to announce this in the law, than to preserve a timid silence:—the occasion itself, which gives rise to this power, may then serve as its limits, if there be no other. The dictatorship of the Romans is an instance of this kind. The same procedures, which when authorised by the laws produce no sensation, would appear the height of tyranny if they were arbitrary. In the first case they would have a limit, and the honour of the laws would remain untouched: in the second, no one would be able to see where they would end, and the authority of the laws would be trampled under foot; since in a complete system, every power which was not derived from the laws, would be an infraction of the laws. Those that are not with me, are against me.
Take an example:—Care has been taken to provide for the maintenance of the troops by general arrangements, in such manner as not to hurt individuals. But it may happen, from a thousand unforeseen accidents, that a certain body of troops, large or small, is in want of necessaries, especially in time of war. But what would the law say to them? They would not allow themselves to die of hunger, with arms in their hands, if it were possible to procure food. It is better courageously to provide for this emergency, and to give to the lowest serjeant the right of making suitable requisitions, than to be silent from fear, and to leave everything to chance and to violence. Let there be no refined formalities; freely concede a power that may be seized in despite of the laws, reserving to yourself the power of ascertaining the facts, for the purpose of punishing its abuse, and indemnifying the parties injured.
Act in the same manner with regard to the extraordinary powers which it may be necessary to grant to commanders for the defence either of towns or countries. To carry off provisions—to break down bridges—to cut down trees—to burn houses—to inundate the country,—all these extremities may become necessary, and they will be neither more nor less so from having been authentically provided for. If there be not a clear and precise permission—sometimes, out of vexation, the strict line of necessity will be surpassed, to the detriment of individuals; sometimes, from fear, only half measures will be taken, to the peril of the public welfare.
Such are the points by which the military code is connected with the penal and civil code. It will be clearly perceived, that it has a continual connexion with the international code. It would be proper to place these relations in the clearest light by a train of reciprocal references.
With reference to military operations, they may be considered as the execution of a law,—as a species of process against the foreign disturbers of the state. As ordinary procedure has its principal and accessory ends, so military procedure has its own:—the principal end is to overcome the enemy; the accessory end is not to oppress the citizen. In relation to the first, to indicate the means to be employed would be to make a treatise upon the art of war, a labour not required here. Still, however, if on the side of ideas it belongs to soldiers by profession, on the side of method and style it belongs to the ordinary legislature; whilst as to the means of attaining the accessory end, the most efficacious are, to grant a great latitude of powers, upon verifying all the facts, and rendering the chiefs responsible.
PLAN OF THE ECCLESIASTICAL CODE.
The subjects of the ecclesiastical code may have reference, partly to the penal and partly to the civil codes—partly to the constitutional, and partly to the international codes.
We have seen, in the catalogue of offences, an order composed of those offences whose tendency is to abuse the motive of religion, or to weaken its power in the cases in which it is employed in the service of the state.—Thus far it is penal.
In the greater number of religions there is established a class of men whose condition consists in cultivating and directing the influence of this motive in the minds of the other citizens. The persons clothed with this condition sometimes hold, instead of salaries, certain lands, which for the accomplishment of the designs of the donors are subjected to other rules than those affecting the lands of other citizens. It is by such circumstances that the ecclesiastical code is connected with the civil code.
Almost everywhere there is annexed to this condition certain political powers, either over the body of the people, or over the members of the same fraternity. Here is a connexion with constitutional law.
The principles which ought to regulate their salaries are the same as those which ought to regulate those of all other services in the state. This belongs to remuneratory law.
In granting to this class certain rights and powers—in subjecting them to certain obligations, they have also been subjected to certain incapacities. These incapacities are sometimes civil, as interdiction of marriage; sometimes political, as exclusion from certain military, public, or judicial employments.
It may happen that the ecclesiastical class in a country has a foreign head, and that the political sovereign allows this foreign chief to exercise his powers in matters of religion. It may be, that these powers exercised by foreigners may be in the hand of a pope, or of an assembly, as of councils, &c. &c. Here there is a connexion with the code of international law.
In this code, the principles which ought to guide the legislator are few in number; and are—as respects penal law, toleration in respect of political rights—submission in regard to the sovereign—equality in regard to their fellow-citizens, and if it be possible, among themselves—as respects their salaries, economy.
PLAN OF REMUNERATORY LAWS.
The system of these laws could not have any plan which should belong to itself alone. Remuneratory laws will be found dispersed here and there throughout the penal code, without having any regular correspondence with offences; since it is not possible to apply a reward to every law, as one applies a punishment. Pleasure, in as far as it is at the disposal of the legislator, is a motive whose force is too precarious, and the quantity of it too small to allow of its being depended upon, in reference to objects of the first necessity. It is a useful auxiliary; but the service of the laws requires a regular and permanent force, such as can only be found in punishments. Reward can scarcely be employed except for the production of extraordinary services—works of supererogation.
Sometimes a principal law has for its support two subsidiary laws of opposite natures: the one penal, in case of disobedience; the other remuneratory, in case of obedience. Thus a wise law, by directing every individual who becomes acquainted with a crime to denounce it to the magistrate, threatens a punishment against him who conceals it, and proposes a reward for him who denounces it. Sometimes the reward is placed in front, and the punishment is, so to speak, placed behind to support it. Thus when it is desired that certain burthensome offices should be discharged, a salary is attached to them, to induce persons to undertake them with good will; but if this method fail, it is necessary to use constraint. In enlisting soldiers and sailors, it is usual to begin by offering bounties, and to finish by ballot and impressment.
The laws which adopt, which guarantee contracts and dispositions of goods between individuals, are a species of remuneratory laws, in the cases in which these contracts, these dispositions, have for their objects, services rendered, or to be rendered. Remuneratory laws belong under this aspect to the civil code.
The most extended field for the remuneratory system is political economy—public instruction might also make great use of it. Those methods which elevate the soul, and give to the mind the elasticity of pleasure, are preferable in the treatment of youth to those which sudden it, and accustom it only to act from fear.
Rewards are sometimes distributed in virtue of general and permanent laws, sometimes according to the good pleasure of those who direct the public funds. A reward granted without having been promised, exactly resembles in form the penal law which would be called ex post facto—I say as to the form, for all the world sees at once that a penal law passed after the act is a revolting injustice. A reward in the same case is precisely the opposite. Is it well applied? It is so much rather an act of wisdom on the part of the government, that it resembles a general invitation addressed to all persons to direct their services to all objects of utility, without fear that in case of success they will lose their labour.
OF POLITICAL ECONOMY.
The distinction marked by the word economy is applicable rather to a branch of the science of legislation, than to a division in a code of laws. It is much easier to say what branch of this science should be called political economy, than to say what laws are economical.
The most powerful means of augmenting national wealth are those which maintain the security of properties, and which gently favour their equalization. Such are the objects of civil and penal law. Those arrangements which tend to increase the national wealth by other means than security and equality (if there be any such,) may be considered as belonging to the class of economical laws.
It may be said, there is a science distinct from every other, which is called political economy: the mind can abstractly consider everything which concerns the wealth of nations, and form a general theory concerning it: but I do not see that there can exist a code of laws concerning political economy, distinct and separate from all the other codes. The collection of laws upon this subject would only be a mass of imperfect shreds, drawn without distinction from the whole body of laws.
Political economy, for example, has reference to the penal laws, which create the species of offences which have been called offences against population, and offences against the national wealth.
Political economy would be found connected with the international code by treaties of commerce, and with the financial code by the taxes, and their effects upon the public wealth.
PLAN OF THE FINANCIAL CODE.
The matter of this code will coincide partly with the civil, partly with the penal, partly with the constitutional, and partly with the international codes.
The regulations to which property and trade are subjected on account of taxes, belong to the civil code. In as far as regards the duties of the contributors, the financial coincides with the penal code, and with that species of offence which is called non-payment of taxes. In relation to the rights and duties of the officers set apart for this branch of administration, the financial is connected with the constitutional code, and sometimes with the international code.
The receipt of taxes bears the same relation to their assessment as procedure bears to substantive law. The one answers to why—the other to how much. Finance has its indirect, as well as its direct laws. These consist in simply saying, “Pay such a tax on such an occasion.” The indirect consist of those precautions which are taken to prevent individuals from withdrawing themselves from the payment of taxes. If fiscal laws are generally very complicated, it is because they are generally directed against accessory offences.
With respect to the principles which ought to regulate taxes, they form part of the science of political economy. A treatise upon finance ought to begin with two tables:—A table of all the inconveniences which can possibly result from every kind of tax; 2. A table of all the taxes, arranged in the most convenient order for facilitating the comparison and showing the particular qualities of each one.
First object of finance—to find the money without constraint—without making any person experience the pain of loss and of privation.*
Second object—to take care that this pain of constraint and privation be reduced to the lowest term.
Third object—to avoid giving rise to evils accessory to the obligation of paying the tax.
One essential object in a treatise of finance would be to simplify the language—to banish false metaphorical and obscure expressions—to restore everything to clearness and truth. Few persons know how much technical terms have contributed to conceal errors, to mask quackery, to confine the science to a small number of adepts who have made of it a species of monopoly. The knowledge of this jargon has become a cabalistic sign, by which the initiated recognise each other; and the obscurities of the language have enabled financiers to deceive the simple up to a certain point, with regard to transactions which would otherwise have been at once recognised as nefarious;—a theft, for example, is called a retaining. These artifices of style have their place in other matters: it is thought better to say of a minister, that he has been thanked than dismissed. But in a treatise upon the principles of legislation, the right word ought to be employed—the word which correctly expresses the real fact without concealment.
How numerous are the questions which appear difficult to be resolved, and even insolvable, because terms are employed which have no meaning, or which only present incorrect ideas!
PLAN OF PROCEDURE CODE.
In arranging matters of procedure, it is necessary to regard four principles:—1. The order of the offences which it is intended to combat, or of rights not enjoyed, which it is intended to cause to be enjoyed. 2. The order of the ends which can be proposed in combating the ill effects of each offence. 3. The chronological order of the steps which may be taken on the one side or on the other, in the pursuit of these ends. 4. The power to be exercised provisionally for securing the justiciability of the accused.
We commence, then, by the system of procedure which is suitable to every offence.
To arrest, to indemnify, to prevent;—these three objects of the legislator give rise to three distinct branches:—procedure ad compescendum,†ad compensandum, ad præveniendum. These three branches are not required with regard to every offence, because they may all be secured by seeking them together.
With respect to precautions for submitting the party to justice, there are two things to be done—to secure the person of the accused, or his goods—or to admit him to give bail. The necessity of these precautions is determined by the intensity of the punishment. The punishment attached to the offence of which an individual is accused, may be such, that he would choose rather to indemnify his sureties, or to leave them to suffer in his stead, than to expose himself to it. In this case, we can possess no other security than that of his person. But if it can be presumed, either from his property or from other motives determining his residence, that he would submit to the judgment which may be pronounced against him, rather than escape it by flight, imprisonment would be a useless rigour. It is not so much the nature of the offence, as the responsibility of the accused, which ought to determine these precautions. A poor man, and especially a stranger, ought to be arrested, when there would be no necessity for arresting a rich man or a housekeeper. Not that the stranger ought to be more ill treated than the resident inhabitant, or the poor than the rich; but because the circumstances of the one offer a guarantee which the circumstances of the other do not yield. Necessity alone can authorize the slightest degree of constraint.
The distinction between criminal procedure, slightly criminal, and civil, may be preserved, or they may be exchanged for other terms:—procedure of rigour—procedure of less rigour—procedure without rigour.
The code of procedure will be much shortened, by distributing it into general and particular titles.
All offences with regard to which the same procedure may be pursued, ought to be placed together, and designated by a common title.
Penal suits have direct reference to offences. Suits of demand, commonly called civil suits, have direct reference to rights, and indirect reference to offences.
Care should also be taken to prepare formulas for all cases which are susceptible of them; that is to say, for everything which in the course of the trial may be done by a general rule.
OF THE INTEGRALITY OF THE CODE OF LAWS.
It is not sufficient that a code of laws has been well digested withregard to its extent; it ought also to be complete. For the attainment of this object, it is necessary at once to embrace the whole of legislation—and this principal object has never yet been attempted. I have ventured to undertake it, and I have, so to speak, projected the sphere of the laws, that all its parts may be seen at one view.
The collection of the laws made upon this plan would be vast, but this is no reason for omitting anything. Whether a law be written or unwritten, it is not less necessary that it should be known. To shut one’s eyes to the mass of the burthen we are obliged to bear, is not a means of lightening its weight. Besides, what part ought to be excluded? To what obligation ought the citizens to be subjected without their knowledge? The laws are a snare for those who are ignorant of them. This ignorance would be one of the greatest crimes of governments, if it were not the effect of their incapacity and unfitness. Caligula suspended the table of his laws upon lofty columns, that he might render the knowledge of them difficult. How numerous are the countries in which these matters are still worse! The laws are not even upon tables;—they are not even written. That is done from indolence, which the Roman emperor did from tyranny.
A complete digest: such is the first rule. Whatever is not in the code of laws, ought not to be law. Nothing ought to be referred either to custom, or to foreign law, or to pretended natural law, or to pretended laws of nations. Does the legislator who adopts, for example, the Roman law, know what he does? Can he know it? Is it not a field of eternal disputes? Is it not, in one word, to render arbitrary everything which he pretends to take from it? Is not this amalgamation sufficient to corrupt the whole code? When we add together two quantities, the one finite and the other infinite, that the sum will be infinite is a mathematical axiom.
I do not say, that if among the states of a sovereign he find a province, a town, which has its customs, its unwritten laws, to the preservation of which he finds himself bound either by convention or custom, he ought to abolish them. No, without doubt: but taking the necessary precautions, he may confirm them, fix them by writing. It was thus that Charles V. acted with regard to Hainault.
It is objected to the forming a code of laws, that it is not possible to foresee every case which can happen. I acknowledge that it is not possible to foresee them individually, but they may be foreseen in their species; for example, a person may be assured that every species of offence are comprised in the tables which this work includes, although he may not be assured that every possible individual offence has been foreseen.
With a good method, we go before events, instead of following them; we govern them, instead of being their sport. A narrow-minded and timid legislature waits till particular evils have arisen, before it prepares a remedy; an enlightened legislature foresees and prevents them by general precautions. Civil and penal laws were necessarily at first made by groping about, according as circumstances required them. In this manner the breaches were filled up with the body of their victims. But this procedure of the ages of barbarism ought not to be followed in the age of civilization.
Of all the codes which legislators have considered as complete, there is not one which is so. The Danish is the most ancient code; it is dated 1683: the Swedish code is dated 1734; the code Frédéric, 1751; the Sardiman, 1770.
In the preface to the Danish code, it is expressly stated to be complete. However, it contains nothing about taxes, no regulations relating to professions, nothing about the succession to the crown, nothing about the powers of any subaltern officers, except those of justice; nothing respecting international law; no formularies, either for contracts, or the disposal of goods, or for different stages of procedure. It is, however, the least incomplete of all the codes.
In the Swedish code, all those parts are wanting which are wanting in the Danish code; it also wants the section on political or constitutional law.
The code Frédéric, stated in its title-page to be universal, is absolutely limited to civil law. It acknowledges that it is far from complete, for it speaks of feudal law, that it proposes afterwards to digest—of a part of the canon law, on which it does not touch—of many statutes of towns and provinces, which it reserves for examination, &c.
The Sardinian code recognises the Roman law as its foundation, and frequently refers to it under the name of common law. It could not more effectually have plunged everything into uncertainty.
I say nothing of the methods followed in these codes. Legislative science was too little advanced to furnish them with models of arrangement and distribution.
The object of these observations is not to depreciate the presents that these sovereigns made to their people. He who has been least successful in the composition of a code, has conferred an immense benefit. In digesting the body of laws, they have, at least in a great measure, caused the repetitions and contradictions of the laws to disappear. They have delivered their people from unwritten law—law which is uncertain in its essence—law without beginning and without end—law by which animals are governed, and which is disgraceful to men.
Written law is alone deserving of the name of law: unwritten law is, properly speaking, conjectural law. Written law has a certain manifest foundation. There is a legislator—there is a will—there is an expression of that will, a known period of its birth. Unwritten law possesses none of those qualities; its origin is unknown; it goes on continually increasing—it can never be finished; it is continually altering, without observation. If there be a lawgiver, it is the judge himself—a legislator, each one of whose laws is only applicable to a particular case, and always necessarily ex post facto—a legislator, the promulgation of whose laws is only made by the ruin of the individuals to whom they refer.
The grand utility of the law is certainty: unwritten law does not—it cannot—possess this quality; the citizen can find no part of it, cannot take it for his guide; he is reduced to consultations—he assembles the lawyers—he collects as many opinions as his fortune will permit; and all this ruinous procedure often serves only to create new doubts.
Nothing but the greatest integrity in a tribunal can prevent the judges from making an unwritten law a continual instrument of favour and corruption.
But wherever it exists, lawyers will be its defenders, and, perhaps innocently, its admirers. They love the source of their power, of their reputation, of their fortune: they love unwritten law for the same reason that the Egyptian priest loved hieroglyphics, for the same reason that the priests of all religions have loved their peculiar dogmas and mysteries.
OF PURITY IN THE COMPOSITION OF A CODE OF LAWS.
By purity in a composition of a code of laws, I mean the absence of all heterogenous matter, of all foreign mixture of everything which is not law—of everything which is not the pure and simple expression of the will of the legislator. Laws made for all times ought to be above all little passions: they ought to command and instruct—they ought not to descend from their elevation to dispute with individuals. Leges non decet esse disputantes, says Bacon: sed jubentes, he ought to have added, et docentes.
I see with regret the compiler* of the code of a great nation incessantly occupied in triumphing over the lawyers: the royal sceptre committed to his hands is used as an instrument of combat. Such formulas as the following are continually found:—“It has been questioned”—“Some lawyers have pretended”—“Some have denied”—“Others have affirmed, but we will and direct”—“We abolish by these presents, these distinctions altogether destitute of foundation,” &c. &c.
Men, things, opinions, ought all to be considered on the great scale. Conciliation should be the object of the legislator, and not triumph. He should rise above all ephemeral strife.
Another form not less vicious, is that of enveloping the will of the legislator in a foreign will. In the same code, such expressions as these are frequently found:—“The civil laws declare”—“The laws exclude”—“The laws have granted.” What laws are referred to? Who made them? Besides, is not this anterior law—this natural law to which we are referred, and which is made the foundation of the law—is it not a source of obscurity?—is it not a veil which intercepts the will of the real legislator?
The compilers of the Justinian code have given examples of these faults. Instead of making the legislator say I will, they make him every moment say, It appears to me. The emperor so completely forgets his dignity as to say, “It is thus that Titius or Sempronius think.” He forgets it still more, when he remains in suspense between two opposite authorities: “It is thus that Titius thinks, but Sempronius thinks otherwise.”
Historical disquisitions ought not to have place in the general collection of the laws. It is not necessary to cite what the Romans did. If what they did was good, do like them, but do not talk of them.
The great utility of a code of laws is to cause both the debates of lawyers and the bad laws of former times to be forgotten.
OF THE STYLE OF THE LAWS.
The perfections of which the style of the laws are capable, may be distinguished into those which are essential, and those which are secondary.
The first consist in avoiding the different faults of which this style is susceptible; the second in employing those beauties which are suitable to the subject.
The desirable object of the laws in regard to style is, that it may be such that at every moment in which they ought to influence the conduct of a citizen, he may have presented to his mind an exact idea of the will of the legislator in this respect.
For the accomplishment of this object two things are requisite:—1. That at the moment in question, the idea should already have been placed in his mind; 2. That it shall not have escaped from it.
This idea will not have been correctly placed in the mind—1. When the words employed do not convey any idea; 2. When they present only part of the idea intended to be conveyed; 3. When instead of this idea they present another altogether different; 4. When they include other propositions in conjunction with that intended by the legislator.
Hence we discover that clearness, precision, is one of the essential qualities of this style.
As it is also to be wished that the idea, once correctly placed in the mind, should remain there always ready for use, and as men differ in regard to the strength of their memories, and the more any one endeavours to load his memory, the more he is likely to forget, we have learned that another important quality in this style is brevity.
Such was the precept of Horace eighteen centuries ago: but hitherto in respect to England, his precept has been delivered in vain.
Defects of style may be referred to four heads:—unintelligibility—equivocality—too great extent—too great limitation.
As an example, I may employ a law cited by Puffendorf, promulgated in a country in which assassination had become common:—“Whosoever draws blood in the streets shall be put to death.” A surgeon found a man faint, and bled him in the street. This circumstance showed the necessity of interpretation; that is, it displayed one of the defects of the law.
This enactment was defective by excess, and by defect:—by excess, in that it admitted of no exception with regard to those cases in which the drawing of blood in the streets might be either useful or innocent; by defect, in that it did not extend to murder, and other methods of wounding not less dangerous than those by which blood is spilled.
If it were the intention of the legislator to comprehend in his prohibition all kinds of grievous injuries which could be committed in public places, he did not know how to express himself clearly.
A judge confining himself to the text of the law, would punish with death slight accidents, and even acts of mercy.
Another judge equally faithful to the text, would leave unpunished more hurtful acts of violence, than those which shed blood.
The law which presents different significations to a judge, cannot fail to be wanting in precision and clearness to individuals.
One will find a man struck by apoplexy, and will prudently leave him to die.
Another, listening to the voice of humanity, will violate the law, and succour the sick man, and thus expose himself to be condemned by the inflexible judge.
Another, trusting in the literal sense of the law, will leave his adversary half dead with his blows; in the manner of that archbishop, who that he might not shed blood, made use of a mace.
It is to be wished, that those minds which consider it beneath the dignity of genius, scrupulously to attend to the care of words, would reflect upon this example. As are the words, such is the law. Laws can only be made with words. Life, liberty, property, honour—everything which is dear to us, depends upon the choice of words.
In all cases of want of precision, the fault arises either from the choice made of the words, or from the manner in which they are put together; that is to say, either from the terminology or from the syntax. In either case it is an affair of grammar, and we may remark, that besides being enlightened, it behoves the legislator either to be or to employ a consummate grammarian.
With regard to brevity, a distinction is necessary. A code of laws prepared upon the best plan, and reduced to the smallest dimensions, will always be too large to be committed to the memory entire; hence the necessity of separating into distinct codes, those parts which are intended for the use of particular classes, who have need to be more particularly acquainted with one part of the laws than another.
Brevity of style may regard sentences and paragraphs, as well as the whole body of the laws.
Lengthiness is particularly vicious when it is found in connexion with the expression of the will of the legislator.
The faults opposed to brevity which may be found in a paragraph are—
1. Repetition in terms.
2. Virtual repetition or tautology: as for example, when the king of France is made to say, “We will, we direct, and it pleases us.”
3. Repetition of specific words instead of the generic term.
4. Repetition of the definition, instead of the proper term, which ought to be defined once for all.
5. The development of phrases, instead of employing the usual ellipses: for example, when mention is made of the two sexes, in cases in which the masculine would have marked them both; cases in which the singular and plural are both used, when one of the two numbers would have been sufficient.
6. Useless details: for example, in regard to time, when instead of confining one’s self to the event which would serve for this effect, it has been made dependent on some anterior event or train of events.
It is by the collection of all these defects that the English statutes have acquired their unbearable prolixity, and that the English law is smothered amidst a redundancy of words.
It is not enough that the whole of a paragraph is concise in regard to the number of ideas that it presents: the sentences in which they are presented should have this same quality. This circumstance is equally of importance whether it concerns the understanding or the retaining the sense of a paragraph: the shorter the distance between the beginning and the ending of each sentence, the more numerous the points of repose for the mind. In the English statutes, sentences may be found which would make a small volume. Pitching blocks are erected in certain places in the streets of London, for porters with their loads: when will English legislators take equal care for the relief of the minds of those who study their labours.
It is not only desirable that the paragraphs be short: they ought to be numbered. Some means is necessary for separating and distinguishing them: that of numbering is the most simple, the least liable to mistake, the most easy for citation and reference.
The British Acts of Parliament are still defective in this respect. The division into sections, and the numbers which designate them in the current editions, are not authentic. In the original parliamentary roll, the text of the law is one single piece, without distinction of paragraph, without punctuation, without a figure. By what means is the commencement and the termination of an article shown? It is only by the repetition of the introductory clauses:—“And further be it enacted.” “And it is further enacted by the authority aforesaid,” or some other phrase of the same kind. These are, so to speak, a species of algebraic notation, but of an opposite character. In algebra, one LETTER supplies the place of a multitude of words and figures; here, a line of words very imperfectly supplies the place of a single figure. I say imperfectly, for though these words may serve for the purpose of division, they do not serve for the purpose of reference. Is it wished to amend or revoke one article in an act? As it is impossible to designate this article by a numerical reference, it is necessary to employ periphrasis and repetitions, always long, and always obscure. Hence English acts of parliament are compositions unintelligible to those who have not by long use acquired facility in consulting them.
This evil has arisen from a superstitious attachment to ancient customs. The first acts of Parliament were passed at a time when punctuation was not in use—when the Arabic figures were unknown. Besides, the statutes, in their state of original simplicity and imperfection, were so short and so few, that the want of division did not produce sensible inconvenience, Things have remained upon the same footing from negligence, from habit, or from secret and interested opposition to all reform. We have lived for ages without using stops and figures: why adopt them today? This argument is above all reply.
With regard to perfections of the second order, they may be reduced to three—force, harmony, and nobleness. Force and harmony depend in part upon the mechanical qualities of the words employed—in part upon the manner in which they are arranged. Nobleness depends principally upon the accessory ideas which they are calculated to excite or to avoid.
Barren though the subjects of the laws may be, they are susceptible of a species of eloquence which belongs to them, and of which the utility ought not to be despised, as it tends to conciliate the popular sanction. With this view, the legislator might sprinkle here and there moral sentences, provided they were very short, and in accordance with the subject; and he would not do ill if he were to allow marks of his paternal tenderness to flow down upon his paper, as proofs of the benevolence which guides his pen. Why should the legislator be ashamed to appear as a father? Why should he not show that even his severities themselves are benefits? This species of beauty has been remarked with pleasure in the political code, as well as in the instructions of Catherine II. It was also exhibited in the preambles to certain edicts of Louis XVI., under the ministry of two men who did honour to France and to humanity.
Having made these general observations, the following rules may be given as practical directions:—
1. It is proper, as much as possible, not to put into a code of laws any other legal terms than such as are familiar to the people.
2. If it be necessary to employ technical terms, care ought to be taken to define them in the body of the laws themselves.
3. The terms of such definitions ought to be common and known words; or at least, the chain of definitions, more or less known, ought always to finish by a link formed of such words.
4. The same ideas, the same words. Never employ other than a single and the same word, for expressing a single and the same idea. It is, in the first place, a means of abridgment, because the explanation of the term once given, will serve for all times: and the identity of the words contributes still more to clearness than to brevity; for if they vary, it is always a problem to be solved, whether it have been intended to express the same ideas, whereas, when the same words are employed, there can be no doubt but that the meaning is the same. Those who are Iavish of their words, know little of the danger of mistakes, and that, in matters of legislation, they cannot be too scrupulous. The words of the laws ought to be weighed like diamonds.
The composition of a code of laws will have required so much the more knowledge, in proportion as it shall demand less knowledge to comprehend it. In works of art, the perfection of art consists in its concealment: in a code of laws addressed to the people, and to the least intelligent portion of the people, the perfection of science will be attained, when its efforts are not perceived, and its results are characterized by noble simplicity.
If in the foregoing work science have been found, and even theory and abstract science, it ought to be remembered that it has been necessary to combat a multitude of errors created by false science—to establish principles so ancient and so new, that to some eyes they will not appear to be discoveries, whilst to others they will appear altogether paradoxical. It has been necessary to introduce order into the chaos of nomenclature with respect to rights, offences, contracts, obligations—to substitute in the place of an incoherent and confused jargon, a language very imperfect, but still more clear, more correct, and more conformable to analogy: in a word, as respects the scientific part of the law, it has been necessary to unlearn and to reconstruct the whole. No one can be more disgusted than myself at the abuse of science—no one can be more sensible of the ill effects it produces. If I have not attained my object, I believe that I have shown the way to it.
If comparison should be made between my labours and the books of actual law, these will be found bristling with a certain science as repulsive as it is inexact and useless, and which owes its obscurity to its own absurdity—whilst by how much the more this project has abounded in science, by so much the less will it be necessary that any should appear in the text of the laws. I have endeavoured to throw the burthen upon the legislator, that the yoke may be lightened for the people. I have given the labour to the strong, that the repose of the weak may be better secured.
A code formed upon these principles would not require schools for its explanation, would not require casuists to unravel its subtilties. It would speak a language familiar to everybody: each one might consult it at his need. It would be distinguished from all other books by its greater simplicity and clearness. The father of a family, without assistance, might take it in his hand and teach it to his children, and give to the precepts of private morality the force and dignity of public morals.
OF THE INTERPRETATION, CONSERVATION, AND IMPROVEMENT OF A CODE.
The code of laws having been thus prepared, it will be desirable to preserve it from the injuries to which it is liable, both as to its matter and as to its form.
For this purpose it will be necessary to forbid the introduction of all unwritten law. It will not be sufficient to cut off the head of the hydra: the wound must be cauterized, that new heads may not be produced. If a new case occur, not provided for by the code, the judge may point it out, and indicate the remedy: but no decision of any judge, much less the opinion of any individual, should be allowed to be cited as law, until such decision or opinion have been embodied by the legislator in the code.
It should be directed that the text of the law should be the standard of the law. In judging whether a given case fall within the law, the text ought to be kept principally in view; the examples which may be given being designed only to explain, not to restrain, the purport of the law.
If any commentary should be written on this code, with a view of pointing out what is the sense thereof, all men should be required to pay no regard to such comment: neither should it be allowed to be cited in any court of justice in any manner whatsoever, neither by express words, nor by any circuitous designation.
But if any judge or advocate should, in the course of his practice, see occasion to remark anything in it that appears to him erroneous in point of matter, or in point of style defective, redundant, or obscure, let him certify such observation to the legislature, with the reasons of his opinion, and the correction he would propose.
If there should be any particular provision that appears at first sight to be repugnant to one more general, they should, if possible, be reconciled: if not, let the particular provision prevail over the general. For this reason,—the particular provision is established upon a nearer and more exact view of the subject than the general, of which it may be regarded as a correction. But if such a case should ever happen, it is a blemish in the law itself, and ought to be corrected; and when observed by a judge, should be represented to the legislature.
Whatsoever the legislator had in view and intended to express, but failed to express, either through haste or inaccuracy of language, so much it belongs to the judges in the way of interpretation to supply.
When, however, a passage appears to be obscure, let it be cleared up rather by alteration than by comment. Retrench, add, substitute as much as you will—but never explain: by the latter, certainty will generally,—perspicuity and brevity will always, suffer. The more words there are, the more words are there about which doubts may be entertained.
Finally, once in a hundred years, let the laws be revised for the sake of changing such terms and expressions as by that time may have become obsolete—remembering that this will be more needful in regard to the language of the legal formularies in use, than that of the text of the laws themselves.
[* ]Here it is clear, that a law which is indirect as to one act, becomes direct in reference to another. These terms are correct only when they refer to one and the same act, or to two different laws.
[* ]Assignable, that is either by name, or at least by description, in such manner as to be sufficiently distinguished from all others; for instance, by the circumstance of being the owner or occupier of such and such goods.
[* ]With regard to offences against a class or neighbourhood, it is evident that the fewer the individuals are of which such class is composed, and the narrower that neighbourhood is, the more likely are the persons to whom an offence is detrimental to become assignable, insomuch that, in some cases, it may be difficult to determine concerning a given offence whether it be an offence against individuals or against a class or neighbourhood. It is evident also, that the larger the class or neighbourhood is, the more it approaches to a coincidence with the great body of the state. The three classes, therefore, are liable in a certain degree to run into one another, and be confounded. But this is no more than what is the case, more or less, with all those ideal compartments, under which men are wont to distribute objects for the convenience of discourse.
[* ]The conditions themselves having nothing that corresponds to them in England, it was necessary to make use of the foreign terms.
[* ]To prevent objections, I remark here, that religion is here only considered as an object of political utility, and not with reference to its truth; whilst as to the effects of religion in preparing us for a better life, or giving us an assurance of its possession,—these are points from which the legislator can draw no assistance.
[* ]When a nomenclature has been formed respecting a collection of things before their nature is known, it is impossible to draw from it any general propositions which will be true. Take oils, for example: under the same name of oils have been comprehended oil of olives and oil of almonds, sulphuric acid and carbonate of potass.—What true propositions can be deduced respecting the delicta privata and the delicta publica, the delicta publica ordinaria and the delicta publica extraordinaria, established by Heineccius in explaining the Roman laws? What can be deduced from the felonies, the præmunires, the misdemeanours of the English laws?—from the penal cases, the civil cases, the private and the public offences of all laws? These are objects composed of such disproportionate parts, of words referring to such heterogenous things, that it is impossible to form respecting them any general proposition.
[* ]That is, their primary mischief.
[† ]Admit. J I mean, that retaliation is capable of being applied to the cases in question, not that it ought always to be employed. Nor is it capable of being applied in every individual instance of each offence, but only of some individual instance of each species of offence.
[* ]Because the person who in general is most likely to be sensible of the mischief (if there be any) in the offence, viz. the person whom it most affects, shows by his conduct that he is not sensible of it.
[* ]Grounds; that is to say, circumstances which affect the necessity of punishment—which render it greater or less, or altogether unnecessary.
[(a) ]without lawful cause.] This requires a reference to the general head of grounds of justification.
[(b) ]caused.] It is of no consequence, either in what manner, or by what means, the mischief has been done—whether the person have been beaten or wounded with or without instruments,—whether it have been occasioned by a stone or other solid body—by a current of air or other liquid—by water, light, heat, or electric matter directed against the party injured—or by presenting some disgusting or hideous object to the touch, the taste, the smell, the hearing, or the sight—or by administering, by force or otherwise, a drug producing vomiting, fainting, or other inconvenience.
[(c) ]another.] Refer to the title which treats of self-regarding offences, which corresponds to this species of private offences.
[(d) ]uneasiness.] It is of no consequence that the point of contact which is the cause of it is slight. It suffices for its production that it takes place against the will of the party injured. Hence the evil of this offence may vary, from the slightest uneasiness to the most extreme torture.
[(e) ]ulterior.] If any ulterior damage accrue, it must be referred to some other title of offences, as irreparable corporal injuries—imprisonment, &c.—Refer to the Table of Offences.
[(a) ]lawful cause.] Here to the ordinary grounds of justification, it is necessary to add a new one—property in the thing. But what is this property?—how shall it be shown that it is possessed? Here, then, a reference to titles to property is necessary.
[(c) ]contributed.] the same reference.
[(d) ]to destroy or injure.] To destroy a thing, is entirely to deprive it of those properties, in virtue of which it may be useful to man: to injure, is partly to deprive it of these qualities. If, instead of the properties which are altogether destroyed, it becomes possessed of others of less value, this amounts to the same thing.
[(e) ]thing.] Reference to the general title which treats of things and their kinds.
[(f) ]value.] It is of no consequence whether it be a thing which possesses a commercial value—that is to say, whether it be of a nature to be useful to a great multitude of persons without distinction, as for example, eatables—or whether it have only a particular value, which would be useful only to a certain individual; for example, a paper on which he had made notes which were only useful to himself.
[* ]The nine following Chapters might have been placed among the Principles of the Civil Code, but as the objects are therein considered in an abstract and scientific manner, I have thought it better to insert them in this part of the work, which is, so to speak, the skeleton of jurisprudence.
[† ]Doctor Fordyce built one which he sent to the Antilles. It was made of pasteboard and paper.
[* ]Inst. lib. ii. tit. 1.
[* ]In France there were old maps according to the divisions into dioceses, provinces, financial districts, military governments. Many others might have been made according to the diversity of jurisdictions and laws, or of customs which varied in each different province.
[* ]Appellations drawn from the Latin are more convenient, this language being more precise and suitable for forming compound words than the English.
[† ]The law in this respect is now altered by 2 & 3 W. IV. c. 75, § 16.
[* ]Hence the table of obligations is the counterpart of the table of services: we may distinguish the obligation agendi—obligation non-agendi—obligation patiendi—obligation benè patiendi—obligation malè patiendi.
[† ]Those two branches of rights are very distinct, but they have no proper names, and I have not found any suitable word in ordinary language for designating them. I would call right in corpus, right of physical contrectation; and the right in animam, right of moral contrectation. Instead of moral contrectation, I would rather say pathological, if this term were familiar.
[* ]Integral, though the most compound of all, is yet the most easily conceived and the shortest to express. For this reason, in making an exposition of rights, it is proper to commence with this.
[* ]The noblest minds have fallen into this error. Adam Smith, in speaking of two laws which he had good reason for disapproving, says—“These two laws were evidently violations of natural liberty, and consequently bad.”—Wealth of Nations, book iv. ch. 1. This consequently would annihilate all laws.
[* ]What is here called a collative event has been commonly called title or means of acquisition. To be the individual in whose favour a collative event has happened, is to have a title. I shall shortly show the reason of this change of denomination.
[† ]For example, if in building a house one should honestly have employed the materials of another. If, in melting some of my metal, some of your metal should be mixed with it, &c.
[* ]The word contract, invented and used by the Roman law, is applicable indifferently to many dispositions which are not promises, such as purchases, sales, loans, &c. Besides, instead of a single disposition, it always indicates many at one time,—dispositions on both sides. Promise is the most explicit word, that which best excludes every false idea.
[* ]A horse is lent: he falls ill: ought the lender or the borrower to pay for his cure? A room is let, without mention being made of for what time—what notice ought to be given to the occupier before he is obliged to quit? According to the variety of contracts, and of things which are the subjects of them, a corresponding variety of adjective obligations is required.
[† ]The species of contract called wagering ought to be an object of particular attention. According to the application which is made of it, it may include in itself all the force of a law, and of a law which acts with the double sanction of punishment and reward. It may be employed in the way of subornation for all imaginable crimes. Bet, for example, that a certain person does not live beyond a certain time, and trace the consequences which such a bet may have.
[* ]When any such power exists without limits (that, for example, of specifying places as sanctuaries), nothing more is required for destroying the effect of all laws sanctioned by any considerably afflictive punishment.
[* ]This first condition may be wanting in those cases in which the judge acts in virtue of his office: for example, when he causes the arrest of an individual who has behaved improperly in court.
[† ]This fourth condition would be wanting when there is no written law—when custom is conjectured and followed. In new cases there is no custom to follow—and all cases were at first new.
[* ]Those who have ranked this power among the attributes of the executive power, have not observed that it was purely a power of command, a power of legislation.
[* ]In England, the king can perform no act without having some individual, or some officer, responsible for it. He cannot even arrest an individual. In this manner his power is limited by the responsibility of those who are necessary as the instruments of it: and it is thus that the punishment of nullity is attached to actions which it is wished to prevent.
[* ]This object can rarely be accomplished. The Canton of Berne levies no taxes: its government is supported by its property. It is almost a unique case, and perhaps it is not desirable that it should be general. In governments in which the people have no part, the necessity of attending to the solvability of the contributors is a species of safeguard for them.
[† ]The famous English law of habeas corpus is an example of procedure ad compescendum, with regard to offences directed against the person. What renders it famous is, that the ministers, who act by order of the king, are subject to it as well as others. It allows of no arbitrary imprisonment. The action ad exhibendum of the code Frédéric produces a similar effect with regard to things.
[* ]Cocceius’ Code Frederic.
[(b) ]caused.] It is of no consequence, either in what manner, or by what means, the mischief has been done—whether the person have been beaten or wounded with or without instruments,—whether it have been occasioned by a stone or other solid body—by a current of air or other liquid—by water, light, heat, or electric matter directed against the party injured—or by presenting some disgusting or hideous object to the touch, the taste, the smell, the hearing, or the sight—or by administering, by force or otherwise, a drug producing vomiting, fainting, or other inconvenience.
[*]That these details are too particular, is an objection which requires proof. The necessity of those things which some would consider as minute may be easily proved.