Front Page Titles (by Subject) NOMOGRAPHY; OR THE ART OF INDITING LAWS: NOW FIRST PUBLISHED FROM THE MSS. OF JEREMY BENTHAM. - The Works of Jeremy Bentham, vol. 3
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NOMOGRAPHY; OR THE ART OF INDITING LAWS: NOW FIRST PUBLISHED FROM THE MSS. OF JEREMY BENTHAM. - 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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NOMOGRAPHY; OR THE ART OF INDITING LAWS:
THE SUBJECT STATED.
Law being the denomination by which, in the English language, designation is made of a portion of discourse by which expression is given to an extensively applying and permanently enduring act, or state of the will, of a person or persons in relation to others,—in relation to whom he is, or they are, in a state of superiority,—and the Greek word nomos being the word which corresponds to the English word law, the appellation Nomography might be given to that branch of discourse which is employed by a superior, to the purpose of giving direction to the conduct of a corresponding inferior.
In the present work, the term nomography will be employed to distinguish that part of the art of legislation which has relation to the form given, or proper to be given, to the matter of which the body of the law and its several parts are composed:—the form, in contradistinction to the matter, and in so far as the one object is capable of being held in contemplation apart from the other.
We shall proceed to consider—1. The relations which nomography bears to the government of a private family—to logic, to a pannomion or universal code of laws, to proposal and petition, and to private deontology; 2. The ends in view in the case of nomography; 3. The imperfections to which it is exposed; 4. The remedies for those imperfections; 5. The subject of language; 6. The perfections of which the legislative style is susceptible; and lastly, The forms which enactments may assume.
Relation of Nomography to the government of a private family.
By Nomography, as has just been observed, is understood the art and science by means of which, to the matter of law, expression may be given in such sort as to maximize its conduciveness to the ends, whatsoever they may be, which the legislator, whoever he may be, may have in view.
Of nomography, the subject-matter is matter of law—the matter of the laws which have place and are in force, or are destined to have place, in the political community in question.
Matter of law is the result of expression given to the will of a person, or set of persons, having power to produce pain on the part of the person or persons at whose hand compliance is thus called for with the will thus expressed.
On each occasion, the matter of law which is uttered, consists, and is composed of, either an entire law, or a portion of such matter, less or greater, than an entire law.
For understanding the nature of any portion of matter which is less or greater than that of an entire law, it will be necessary to understand what that portion of matter is, which is neither more nor less than the matter of an entire law.
An entire law may be defined, a command emaning immediately, or through the intervention of some subordinate authority, from the supreme authority of the state in the political community in question—the political community of which it is a law.
In the great and all-comprehensive family of a political state, a law is—that which a command is in a private family—a command directed by the head of that same family to the members of it, or any one or more of them.
But, to be productive of any of the effects intended by it, the law of the legislator requires an appendage, which, for the production of its effects, is never needed by the head of a private family. With reference to the law just mentioned, this appendage may be styled the subsidiary law: of this subsidiary law, the business and object consist in the presenting to the party or parties subject, inducement directed to the purpose of producing on their parts compliance with the principal law.
And here, then, we have existing on each occasion, in necessary connexion with one another, two distinct species of law; namely, 1. The principal, or say the direction-giving; 2. The subsidiary, or say the inducement-giving law.
These distinct species of laws are addressed to two different classes of persons:—the direction-giving law is addressed to the person or persons at whose hands compliance is constantly looked for in the first instance;—addressed always to a person, or set of persons other than the above, is the subsidiary, or say inducement-giving law.
This person, or set of persons, is different, according as the inducement employed by the lawgiver is of the nature of evil or of the nature of good.
If it be of the nature of evil, the inducement is styled punishment; and the sort of person to whom this subsidiary law is addressed is the judge: and the act which he is calculated to perform, in the event of non-compliance with the will expressed by the principal law, is an act of punishment—an act to which exercise is given by producing evil, or say pain, on the part of him by whom compliance with the will expressed by the principal law has failed to be made.
For giving effect to a command emaning from the head of a family, and addressed to the other members of it, one or more of them,—no subsidiary law, no inducement-giving law is necessary.* Why? Because in the bosom of a private family, no such functionary as a judge—no functionary distinct from the lawgiver, has place. Here in the head are necessarily connected the two, in themselves mutually distinguishable functions of the lawgiver and of the judge.
Of this difference another consequence is,—that in a private family no portion of the matter of law, no portion less than an entire law, no such thing as a fragment of a law, has place:—peculiar to the great family of the state is the existence of this fragmentitious matter, the conception of which will be seen to such a degree complex, and in so high a degree productive of difficulty and complexity.
Relation of Nomography to Logic.
The intellectual—the volitional—and the active;—into these three branches the whole texture of the human mind has, for some purposes, on some occasions, been considered as divided:† the intellectual including perception, knowledge, and judgment;—the volitional, designated by the one word will;—and the active, by which execution and effect is given, as far as depends on the individual, to the choice formed, or, so to speak, the laws enacted by the will.
For these two thousand years and more,‡ the branch of art and science which undertakes to give direction to the operations of the understanding, has been in existence; and logic, a name derived from the Greek, is the appellation by which it has been denominated.
In nomography, as the branch of art and science is itself new, the name of it cannot, it is manifest, be otherwise than new,—new the thing signified, new of course would be any and every oral sign employed for the signification of it.
In the field of art and science a vast space has been discovered, and this of nomography is the branch of art and science which has been invented for the filling of it up.
If to the operations of the understanding, by appropriate rules direction is capable of being given to advantage, with no less advantage may it be given to the operations of the will, and the expression and method given to these same operations.
By the light of analogy, the instructions which have been given on the subject of the logic of the understanding, may be found applicable, with more or less fitness, to the logic of the will.
In common to both branches of logic belongs that portion of matter, which in a work on the logic of the understanding, may be termed the tactical part; peculiar to the logic of the will is that part of the logic of the understanding which may be termed the argumentative, or say, the polemic part.
Relation of Nomography to the Pannomion, Matter and Form.
Matter and form—these two elements, or say elementary ingredients, enter into the composition of every law, and of every particle of matter that enters into the composition of a law, or of a portion of the matter of law.
Under the head of matter are comprehended the ideas to which expression is designed to be given,—the ideas, or say the things that require to be signified:—by the form, understand the signs by means of which these same things are signified—the words, and combinations of words, by which expression is given to those same ideas.
By a pannomion, understand the entire mass of the matter of law which in the country, or say, political state in question, has the force of law:—a mass by which, when that extent is given to it which it is capable of having, and ought to have, the whole field of law and legislation is comprehended, and the whole surface of it, as it were, covered.
To the head of nomography—a denomination by which title is given to the present work—belongs the consideration of what belongs to the form of a law, or of any portion of the matter of law, as above.
Expression and method—under one or other, or both together, of these denominations, may be ranked and included whatsoever consideration belongs to the form in which a portion of the matter of law is capable of being clothed.
By expression, understand the words and combinations of words, by the aggregate of the signs of which the matter of the law is signified.
By the method, understand the different groups, or say assemblages, in which these same signs are put together, and the order in which these same groups, and in each group the words of which it is composed, follow one another.
Relation of Nomography to proposal and petition.
Superiority—equality—inferiority:—between man and man, in the scale of power, these three are the degrees which have place. Addressed to an inferior, a discourse expressive of the will of his superior, possesses the character and effect of a law: addressed to a superior, a discourse expressive of the will of an inferior, presents itself in the character of a petition: addressed to an equal, a discourse expressive of the will of his equal, presents itself in the character of a proposal.
A requisition agrees with a law, in trusting to power for compliance with the will expressed by it:—it differs from a law, in that it emanes not immediately from the superior power in the state, nor even necessarily from any one of the constituted authorities: for compliance with the will expressed by it, however, it places its ultimate reliance on the supreme power in the state; forasmuch as on this supreme power it is that all other power depends for its existence.
A request differs from a petition no otherwise than that, in the case of the request, the place of the superior in the scale of power is not so high—the place of the inferior not so low—as in the case of the petition.
Altogether free from that complication which has place in the case of a law, are a proposal and petition. Why? Answer—Because in neither of these cases is there any place for that subsidiary law, the need of which has been brought to view in the case of a law: there is no punishment in the case—no reward in the case;—no functionary by whom eventually, to wit, in the case of non-compliance, the punishment—no functionary by whom eventually, to wit, in the case of compliance, the reward, is to be applied.
To proposals and petitions, no small quantity of the machinery applied by nomography to the matter of law will, however, be found applicable—the matter of discourse being the matter employed in all three cases. In pursuing our course in the field of nomography, occasion will be seen for bringing to view the imperfections by which the matter of discourse, when applied to the purpose of law and nomography, is liable to be deteriorated—the imperfections by which the will of the supreme legislator is, in a greater or less degree, liable to be frustrated,—and of the remedies which present themselves as applicable to these several imperfections. Of the same imperfections, the matter of discourse, when applied to the purpose of a proposal, will be found susceptible; and accordingly of the same remedies for these imperfections; and so in case of a petition.
But as, neither in the case of a proposal, nor in the case of a petition, either punishment or reward have any place; accordingly, in neither of these cases does any such importance attach, either to the imperfections, or to the remedies, as in the case of a law.
Relation of Nomography to private deontology.
Strictly speaking, not nomology and deontology, but the pannomion on the one hand, and an all-comprehensive system of deontology on the other part, are the objects between which the relation has place; for, in this respect, the matter of a treatise on deontology stands upon the same footing as the matter of a proposal and the matter of a petition, as above.
But the contents of the pannomion have their form as well as their matter,—and so have those of a treatise on deontology: and now, after the relation of nomography to so many kindred objects has been brought to view, this last presented itself as being necessary to conclude the list.
A portion of the matter of law gives existence to the inducements, or say motives, on which it depends for the obtaining compliance with the will signified and expressed by it; a treatise on deontology gives not existence to any such inducements: what it does—all that it does, is in each case to give intimation of those inducements which actually have place in the nature of man and things, for compliance with the will to which it gives expression.
PROPER END IN VIEW.
In the case of nomography, that is to say, in the case of an all-comprehensive treatise on nomography, the proper end in view is the same as in the case of the pannomion;—it being no other than the giving to the entire pannomion, or to that part of it which is upon the carpet, the execution and effect intended by it.
The form being in itself an object entirely subservient to the matter, thus it is, that this end in view belongs to them both in common,—but always in subserviency to that common end. To nomography belongs another end, which is peculiar to itself:—this end is the contributing to the utmost, to that prime and leading object, whatever it be, which the matter of the work in question—namely in the present instance the pannomion—has in view.
Come now for consideration the means which in that character are conducive and subservient to that peculiar end.
A circumstance which gives no small increase to the usefulness of these means, and correspondent strength to their claim to notice, is the circumstance of their being in no small extent applicable to discourse in general—to discourse, to what subject soever applicable—and more particularly to all discourse of an instructional, or say didactic nature.
The immediate secondary end, or say, the immediately subservient means with relation to the primary end of nomography, may be thus expressed:—investing the pannomion, throughout the whole matter of it, in the highest degree possible, with the several qualities or properties conducive to that end,—or say, properties desirable in instructional discourse, thereby maximizing its appropriate aptitude.
Positive or negative—in either of these two opposite forms may these desirable properties be presented to view.
The positive is the form in which at a first view they will be apt to present themselves. But upon a closer examination, they will be found internally of a negative character, though clothed and disguised in a positive garb.
Blemishes, imperfections, detrimental qualities, or, figuratively speaking, vices—by one of these names, in one word, the several qualities opposite to the qualities desirable in this case may be designated:—qualities these, which in proportion as in any portion of discourse they have place, obstruct and stand in the way of the attainment of that same end.
Beneficial, is the epithet by which denomination may be given to the qualities correspondent and opposite to those same detrimental qualities.
Perfections, is the name by which they might have been designated, and would have been designated, but that by this word intimation is given, that in the case of the quality in question, no degree which is beyond and above the degree in which the subject is thus spoken of as possessing it, has place:—and occasion will not be wanting, for bringing to view certain expedients of rather a novel complexion, by each of which more will be done towards investing the discourse with the qualities desirable, than by the bare removal of the detrimental qualities correspondent and opposite to the beneficial ones above alluded to.
Under the notion of form are included expression and method:—but the things themselves are not so plainly distinct from one another, as by these their appellatives they may be apt to appear to be.
Method is the result partly of the choice made of the most general and comprehensive of the terms which the nature of the subject calls into use—of the choice made of those comprehensive terms, and thence of the composition of the several bundles or packets of intellectual objects, which they respectively present bound up together, and of the order, the numerical order, in which they are so presented.
When the term expression is employed, the subject in question consists of a particular portion of the matter of law, which on the occasion in question, is considered in itself only, and without reference to any connexion it may have with the whole, or with this or that portion of the vast aggregate mass of which it forms a part.
In proportion as the plan or scheme of nomography pursued in any body of law stands clear of, or is sullied by the imperfections or vices incident to the form in which a quantity of legislative matter is capable of being presented, it will be apt or inept.
But although the form be the source to which the several vices or imperfections of which a body of law is susceptible, in respect of its form, may be referred, yet the matter also becomes the seat of them; inasmuch as in proportion as, considered in respect of its form, the rule of action is seen to be characterized by these imperfections, it is through their influence seen to be, in respect of its matter, less adapted to its ends than it would be if pure from them.
Nomography, its general end—relative notoriety.
Legislation is a practical operation, having on each occasion a practical object,—viz. the attainment of a practical end. Be that end what it may,—whether matter or form be considered—the manner in which on any occasion the task is executed, will be perfect in proportion as it is conducive—imperfect in proportion as it is unconducive or obstructive with relation to the attainment of that end.
Considered in relation to the matter of the law itself, the end of nomography admits of an infinity of diversifications and ramifications, none of which belong to the present purpose.
Considered in relation to form—in relation to the form given, or to be given, on each occasion to that portion of the matter of law which on that occasion is the subject of consideration,—on each and every occasion, one and the same object will be found to be that which on every occasion it will be incumbent on the legislator to set before him, and apply his endeavours to the attainment of; and that object,—notoriety—relative notoriety.
Whatsoever good effects the portion of law in question may, in virtue of its matter, be intended or calculated to produce, the production of those effects will depend, in the instance of each individual on whom the law calls for his obedience, on the hold which it has happened to it to take upon his mind: viz. in the first place, upon the circumstance of the fact of his being apprized of the existence of the law; of the general matter of fact, viz. that on the subject in question there exists such a thing as a portion of law: in the next place, upon the degree of correctness and completeness with which, as often as any occasion comes for acting in obedience to, or in any other way in pursuance or consequence of such portion of law, the matter of it is present to his mind.
To the production of any bad effects, no such notoriety is, in the instance of any portion of law, in any degree necessary.
For a man to be put to death in due course of law, for non-compliance with this or that portion of law, it is not by any means, in any case necessary, that either the matter of it, or the fact of its existence, should ever have reached his mind. On the contrary, whosoever they be to whom it is matter of satisfaction that men should be put to death in due course of law (and these, more especially among English judges and other English lawyers, are many,) the greater the extent to which they can keep from each man’s mind the knowledge of such portions of law to which, on pain of being put to death for disobedience, they are called upon to pay obedience, the greater the extent to which they can administer this satisfaction to their minds; and if the portions of legal matter to which this result is attached, had for their object the administering of this satisfaction to those from whose pens they issued, they could scarcely have been rendered in a more effectual degree subservient and conducive to that end, than they have been rendered by the form into which the matter of that, and all other parts of the English law have been cast.
True it is, that before any man can be put to death, or otherwise vexed for non-obedience to any portion of law, what is necessary is, that some person—nay, that divers and sundry persons, should be apprized, not only of its existence, but its contents; forasmuch as a man of ordinary prudence, such as are all those who are in the habit of taking each of them a part in an operation of this sort, will not engage in any such operation except in the persuasion, well or ill grounded, of his being warranted in so doing, if not by the tenor of any real law, at any rate by the feigned tenor or purport of some imaginary law or rule of law, which for his justification and protection will be attended with this same effect.
But when the bearing a part in the putting of men thus to death, is of the number of those acts by the performance of which men are called upon to manifest their obedience, the production of an effect of this sort is not among those results which generally, openly, and avowedly, at least by the legislator, are held up to view in the character of the objects or ends in view ultimately aimed at: ultimately and absolutely good a result of this sort is not generally (for even here there are some exceptions) declared to be; relative, and that alone, is the term employed in giving expression to the point of view in which any such appellative as good is spoken of as applicable to such a subject:—that A should be put to death is good, is maintained Why? That B and C may, without being put to death, abstain from the commission of acts of the sort of that, for the performance of which A is thus ordered to be dealt with.
These things well considered, it will be manifest, that whatsoever bad effects are capable of being produced by a portion of law, without its being known to those on whom, in the first instance, it calls upon for their obedience, yet as to any effects which, with relation to the community in general, can upon the whole bear with propriety any such appellative as that of good effects, its efficiency in relation to these good effects will depend upon the degree of efficiency and perfection with which, on the occasion in question, it has happened to it, or to the purport, and thence to the tenor of it, to have presented and fixed itself in that person’s mind.
Nomography—its particular ends;—correspondent to the avoidance of the obstructions to Notoriety.
Such being, in the business of nomography, the general end in view,—such being the object proper to be aimed at upon all occasions and in all cases, what are the means best adapted to the attainment of that end?
The answer is—the avoidance of the several modes of imperfection, of which, in point of expression and method, the style of legislative penmanship is susceptible.
For the attainment of this end, make your meaning known and understood by every person of whom you expect that he should act in consequence. Thus simple is the general rule, that in and by it, it should seem as if indication were given of everything applicable in the character of a means towards the attainment of this end.
On the sort of occasion here in question, is it really your wish that what you give as the character of the expression of your will—the real character and purport of such your will—should on each occasion on which action is called for on the part of those you have to deal with, be borne in mind? If so—if such be really your wish—you will act on this occasion, as on every other occasion which presents itself in ordinary private life you are wont to act towards those with whom on those several occasions you have to deal.
In dealing with these your fellow-subjects, whose concerns upon a larger scale are committed to your management—these fellow-subjects, for whom, as well as over whom, in the character of their master, and agent, and trustee, you act—you will, in this particular at least, deal with them with the same simplicity and sincerity as that with which, when calling for obedience on the part of your own children, or your own servants, you address yourself to any of your own children or servants.
On each occasion, when addressing yourself to those who are subject to your power, for your own ends you call for obedience, you speak intelligibly,—you are understood accordingly, and you obtain what you desire. When, for ends of a public nature, for the use and benefit of the community in general, you call for obedience,—here too the language is equally open to you—the ordinary means of intercourse are equally open to you: apply the language with the same simplicity and sincerity to its purpose—apply those means of intercourse in like manner—speak intelligibly to those to whom you speak—you will be understood accordingly: convey into the hands of each person, that which, for his complying with your desire, it is necessary should reach them, and be found there,—do this, and here too, for the like causes, and with equal certainty, you will have your desire.
Such is the manner in which in all cases, if he would compass the ends of language, a man must act and speak,—this is the manner in which, as often as for his behoof a man seeks to obtain obedience, he does act and speak,—this is the manner in which, if he be a man of law employed by government, under the notion of his seeking to obtain obedience from this or that part of the community, for the use and behoof of the whole community, he never has yet spoken—he never does speak.
On the contrary, all the imperfections into which, on the occasion of the communication holden by him with any of those to whom, for the purpose of obtaining obedience for his own use and behoof, it can ever happen to his discourse, in consequence of this or that instance of accidental oversight or involuntary weakness, to exhibit here and there the marks of, in any the slightest degree, and at any the longest intervals,—all these on every occasion on which it happens to him to hold communication with any of those to whom, for the purpose, or professed purpose, of obtaining obedience, for the use and behoof of the whole community, to address himself, are with anxious care, study, and undeviating regularity, displayed and accumulated, each of them in a degree of plenitude and consummation of which on any other occasion never would the utmost industry of man be able to discover any example.
Hence it is, that for the purpose of showing in what manner, in respect of expression and method, portions of the matter of law ought to be penned—in what manner the attainment of the universal end of language and verbal intercourse ought on this occasion to be aimed at—all that can be done is to look out for, and collect together under heads, as faults to be avoided, the several vicious peculiarities—in a word, the several imperfections, of which examples are to be found in the language habitually employed, and the course taken in other respects by the framers of English statute law—including in this catalogue as well those into the manifestation of which men are now and then seen on other occasions to be betrayed by casual oversight or involuntary weakness, and those which on this occasion are the result of strenuous attention and anxious imitation and observance.
In a word, to show in what manner aws and portions of laws ought to be penned, nothing less is requisite, nothing more is possible, than to show in what manner they have hitherto been penned; and this to the end that in future the manner in which they are penned may, when compared with the manner in which they have hitherto been penned, be seen to be as unlike as possible.
Proceed we now to exhibit such a catalogue of these imperfections as a diligent research made for this purpose has succeeded in bringing to view. So many different modes of imperfection as are to be found exemplified in the composition of English statute law, so many particular objects, which in the course of his travels over this field the legislative draughtsman ought to have constantly in view as so many stumbling blocks, to the avoidance of which his anxiety and industry ought on every occasion to be kept directed.
Imperfections adverse to the end of Nomography classed.
Method and expression taken together, the imperfections of which a mass of law considered in respect of its form is susceptible, may be distinguished into those of the first order, and those of the second order.
To the first order may be referred such imperfections as are so in themselves, or rather with reference to those objects which may be seen to be the immediate ends of all discourse—of discourse considered in a general point of view—and consequently of discourse considered with reference to the particular objects or ends which are in view in the case of the particular sort of discourse—viz. legislative discourse—which is here in question.
Under the head of imperfections of the second order, may be placed such as are so, no otherwise than with reference—or at least such as are so with reference—to the imperfections of the first order—viz. in as much and in as far as each one of these imperfections of the second order is conducive to some one or more of the imperfections of the first order;—i. e. conducive to the investing the discourse into which they enter, in a degree more or less considerable, with some one or other of the vicious qualities designated by the denominations by which the imperfections of the first order stand respectively expressed.
Imperfections of the first order enumerated.
The imperfections, vicious qualities, or vices of the first order, of which a mass of law considered in respect of its form is susceptible, seem reducible to three heads:—viz. 1. Ambiguity; 2. Obscurity; 3. Overbulkiness.
1. Ambiguity is where the effect of the expression employed is to present in conjunction divers imports, in such sort, that though to the individual mind in question it appear clear enough that in one or other of them is to be found the import which by the legislator was intended to be conveyed, yet which it is that was so intended to be conveyed, is matter of doubt.
2. Obscurity is where, of the expression employed, the effect is, for the present at least, not to present any one import, as that which by the author or authors of the portion or portions of law in question, was on the occasion in question intended to be conveyed.
In the case of ambiguity, the mind is left to float between two or some other determinate number of determinate imports:—in the case of obscurity, the mind is left to float amongst an indeterminate, and it may be an infinite number of imports. Obscurity is ambiguity taken at its maximum.
3. Overbulkiness. Ambiguity and obscurity are imperfections, capable each of them of finding its seat in any the minutest part of a mass of the matter of law: overbulkiness is an imperfection not capable of being brought into existence but by the accumulation of a large number of such points.
Supposing the bulk of the mass swollen to a certain pitch,—notoriety, the relative notoriety in question, finds in this quality of the mass, a bar of the physical kind absolutely insuperable. The powers of no human mind being adequate to the sustentation of the whole of such a burthen, portions of the mass, more or less considerable, must with relation to every individual without exception be, to any influence which it is possible for them to exercise on his conduct, as if they had no existence—be with reference to him completely non-notorious.
Whether this non-notoriety shall be, as at present, an enormous evil, or no evil at all, depends upon a very plain distinction—a distinction so obvious, that in the case of a man to whom the law had never presented itself in any other character than that of a source of opulence and power, to men of the profession,—some care, attention, and vigilance would, one should think, be necessary to enable a man to avoid seeing it.
Overbulkiness* may to this purpose be distinguished into absolute and relative. Absolutely speaking, the imperfection of overbulkiness may be ascribed to a body of legal matter, when, taken in its totality, the bulk of it is too great to admit of its being at all times effectually present to the minds of all persons, who in point of interest are concerned in shaping their conduct in conformity to it.
Relatively speaking, the imperfection of overbulkiness cannot justly be ascribed to it any further than as it is so put together, that in the instance of this or that individual, such portions of it, which he is concerned as above to bear in mind, fail, in the whole or in part, of having been presented to his mind, and lying within his reach in such manner as to be at all times completely within his grasp.
In this speculative distinction, the imperfection here in question will be seen to possess a specific remedy, the application of which will be exhibited in detail, when after a fill given of these imperfections, we come to consider of what remedies they may be susceptible. So as each individual have but the advantage and comfort of beholding effectually within his reach—within the reach of his purse, as well as of the mastery of his mind, whatsoever parts he is in any way concerned in point of interest to be acquainted with, the bulk of the whole, how vast soever, is with reference to him a matter of indifference: overbulkiness is not with relation to him among the properties that belong to it.
Defectiveness is a species of imperfection, under which a body of law is no less liable to labour, than under that of overbulkiness or ambiguity or obscurity:—accordingly, of the whole field of English law, all that part which, having in the shape of real law nothing at all to cover it, is by the all-embracing imposture of the licensed manufacturers of falsehood and deceit construed and taken to be filled up by the imaginary matter of common alias unwritten law—by so much as is thus considered as covered with common alias unwritten law, by so much is the whole mass of English law defective; and the English code no less preeminently conspicuous in this imperfection than in respect of any of those others.
But defectiveness, at least when thus fixed and explained, is an imperfection which belongs not to the form, but to the matter of law—and on that account belongs not to the present purpose.
Imperfections of the second order enumerated.
The imperfections of the second order, of which a mass of law considered in respect of its form is susceptible, may be thus enumerated:—
1. Unsteadiness in respect of expression—when for the designation of the same import, divers words or phrases are employed.
2. Unsteadiness in respect of import—when to the same word or phrase, divers imports are attached in different places.
3. Redundancy—when of any number of words employed in connexion with each other, the whole or any part might without prejudice to the sense—i. e. to correctness, completeness, and facility of intellection—be simply omitted, or others in less number be inserted in the room of them. Redundancy is either curable by simple omission, or not eurable but by substitution.
4. Longwindedness—when a portion of legislative matter, the elements of which are in such sort connected with each other, that to comprehend in a complete and correct manner any one part, the mind finds itself under the necessity of retaining within its grasp the whole, is drawn out to such length as to be liable to overpower the retentive faculty of the mind on which the obligation of taking cognizance of it is imposed.
5. Entanglement—when propositions distinct in themselves are forced together into one grammatical sentence, and in this state carried on together throughout the course of it.
6. Nakedness in respect of helps to intellection—especially if in respect of such as are in general use:—such as division into parts of moderate length,—designation of those parts by concise titles and figures of arithmetic expressive of numbers, for indication of such respective parts—and reference by titles and numbers as above, instead of by general description of their contents.
7. Disorderliness.—1. In respect of the arrangement given to the several matters,—whether by including under one and the same name, and thence under the same treatment, matters which, in respect of the diversity of their nature, require each a different treatment;—2. By placing at a distance from each other those which for facility, and clearness, and correctness of intellection, ought to stand contiguous to each other, or near at least to each other: or contiguous or near those which ought to be at a distance;—or, 3. By giving to this or that article the precedence over this or that other, which for clearness or facility of intellection, ought to have been placed before it.
The seats of these imperfections will be found to be either—1. Words taken singly; or 2. Words taken in combination.
Connexion between the Imperfections of the first and of the second orders.
On the most cursory glance, a general idea of the manner in which these imperfections of the second order are respectively conducive to the superinducing on the mass the imperfections of the first order, is obtainable without difficulty.
1. Unsteadiness in respect of expression is conducive in the first place to obscurity,—because by a change in expression, for the moment a suspicion at least, howsoever removeable, of a difference in point of import, cannot but be produced:—difference of expression being the only means by which a difference of import could, if intended, be announced.
So likewise to overbulkiness,—unless when it happens that the several different locutions employed to designate the same import are all of them of exactly the same length.
2. Unsteadiness in point of import. Of such unsteadiness, ambiguity is the obvious and almost inseparable consequence.
3. Redundancy. How necessarily productive this imperfection is of overbulkiness, is self-evident; and that it is even generally productive of obscurity, and frequently of ambiguity, will be little less so.
4. Longwindedness. Of this imperfection, in proportion as it prevails, obscurity, it will readily be acknowledged, is the necessary, and ambiguity a natural and frequent consequence.
5. Entanglement. Of this imperfection, obscurity is the obvious, and to a certain degree the necessary—ambiguity, again, the not unfrequent, though but accidental, result.
6. Nakedness in respect of the helps, particularly the customary helps to intellection, ambiguity and obscurity are the imperfections of the first order, to the production of which this imperfection of the second order is most obviously subservient. In the production of overbulkiness its efficiency is still more constant and powerful, and little if at all less obvious. That which with these ordinary helps might be expressed by a figure or two, with or without a word or two, requires, when destitute of them, always a multitude of words, sometimes as many as would suffice to fill a moderate page. By the figure or two, with or without a word or two, the object would be effected in perfection, without of either ambiguity or obscurity any the slightest shade. By the page, if it be compassed at all, the object is never compassed without considerable danger of ambiguity and of obscurity, or constant and most troublesome abundance.
7. Disorderliness. To a general conception it can scarcely be otherwise than sufficiently obvious, that of all the several imperfections of the first order, viz. ambiguity, obscurity, and overbulkiness—disorderliness in all its various modifications, will in proportion to its intensity be a perennial source.
But the most productive form in which it can exist, is that which it assumes by confounding together into one immense chaos the several portions of the matter of law, each of which would on examination of its nature be seen to be, in respect of the demand it presents for cognition and notification, confined to a few classes of persons, of each of which the proportion would not amount to more than the two or three hundredth or thousandth per centage of the whole.
Of the species of nakedness here in question, the only example to be seen—the only example discoverable in the field of law—the only example to be found in the world of letters, in the civilized part of the world, is that which is afforded by English statute law.
It required the union of professional industry and ingenuity with supreme power, to create and preserve, in the country that claims in respect of psychological endowments of all sorts, intellectual and moral, the superiority over every other, a mode and habit of literary intercourse between governors and governed, so peculiarly and manifestly adverse to every honest purpose.
As to the other modes of imperfection—including the three of the first order, and the seven of the second order—though in this same system of law these also are found signally prominent, yet it is only in degree, and not in specie, that they are peculiar to it.
General depravity of the style of English statutes.
For bringing to view and summing up the imperfections of English statute law,—the language employed for the purpose of legislation by English lawyers, no more is requisite than to bring to view and sum up the points by which it is distinguished from the ordinary language of the multitude. Wheresoever it is seen to differ, it will be seen to differ to its disadvantage:—peculiar absurdity the immediate effect—peculiar mischief the result.
This distinction from the ordinary language of the multitude is peculiar to the language of English statute law: foreign laws are clear from it.
It has been among the devices of lawyers to connect with everything that is justly dear to English hearts, the absurdities and the vices in and by which they reap their profit. Fiction—the vice which they are not ashamed to avow and magnify under that name—fiction has never been either more or less than lying, for the purpose of extortion and usurpation:—yet men who ought to have known better, have not been ashamed to stand up and speak of fiction as the foundation and efficient cause, causa sine quâ non of everything that is most valuable in the fabric of the constitution, and the texture of the common law.*
Lying the foundation—the causa sine quâ non, of what is most excellent in law! In what sink of folly and wickedness shall we look for the root of so mischievous a paradox? As if wrong could be converted into right at pleasure by the mere telling of a lie!
Without lies in their mouths, lawyers would not have been suffered to do the mischief they have done:—without lies in their mouths, they would not concur in doing what little good their own particular interest suffered them to concur in doing. But is it to the vice, that the good which they were so forward in employing it about, is to be ascribed? When James was driven from his throne, English lawyers refused to set their hands to the work, unless Parliament would join in the notorious lie, that he was averse to sit on it any longer. This lie,—was it either necessary, or of any the smallest use? In Scotland, no such lie was told, and James was not less effectually expelled from the Scottish throne than from the English.
He had made a bargain with somebody—a bargain to govern well?—he had made no such bargain; he had made no bargain at all about the matter. A bargain necessary to constitute a sufficient reason for good government! a sufficient reason for seeking security against mischief and abuse! What if he had made a bargain to govern badly? Would it then have been the duty of the king to afflict the people with bad government?—would it have been the duty of the people to submit to it?
As well when good, as when mischief is to be done, advantage is taken by them of the public weakness, to cram into the work, in as large a proportion as possible, that mixture of vice and sort of absurdity of which they are the compounders; and to this compound of mischief they ascribe the honour of whatever good is done.
With as much truth, and as much reason and sincerity, might a man slip in, along with the memorials usually buried with the first stone of an edifice, a bridge, or a court of justice,—a rotten egg and a rotten apple, and then set up proclaiming the virtue of rotten eggs and rotten apples. Oh rare rotten eggs! Oh rare rotten apples! No bridges without rotten eggs! No justice without rotten apples!
A rotten egg or a rotten apple is quite as necessary and conducive to the stability of a bridge for the convenience of passengers, or of the edifice in which justice, or what is called by that name, is to be administered, as fiction, legal fiction, ever can have been or ever can be to any good work that may be attempted with it.
But though it is useless to expect that these imperfections will be acknowledged by the long-robed penners of the English statutes, regard for his own intellectual reputation should suffice to prevent the man of law from professing himself not fully conscious of the repugnancy of his style and method to every useful and honest purpose and design of language. The English lawyer, more especially in his character of parliamentary composer, would, if he were not the most crafty, be the most inept and unintelligent, as well as unintelligible of scribblers. Yet no bellman’s verses, no metrical effusion of an advertising oil-shop, were ever so much below the level of genuine poetry, as when, taken for all in all, are the productions of an official statute-drawer below the level of the plainest common sense.
Effects of these imperfections on the faculties and operations of the Legislator himself.
The mind of the subject is not the only mind on which these imperfections in the present established system of legislative penmanship exercise their baleful influence:—another mind, on which their influence is but too conspicuous, is that of the legislator himself. True it is, that at the upshot, it is on the subject that this branch of the mischief falls, and with no less weight than does the other.
“Quidquid delirant reges plectuntur Achivi;”
—but when on its way to the passible faculties of the mind, of which the station is in the lower place, it impinges upon the agible faculties of the mind, whose station is in the higher place, the mischief assumes a different complexion, and requires altogether a different description to bring it to view.
Not that, in thus changing its place, the mischief, meaning always the ultimate mischief, undergoes any very considerable change either in its nature, or thence in its proper name. On the part of the law, non-cognoscibility, or that which comes to the same thing, unintelligibility on the part of the mind, for the cognizance of which the law is destined or pretended to be destined;—of these results the ultimate mischief is in both cases constituted. In the one case, the mind thus darkened is that of the individual, the subject-citizen:—in the other case, it is that of the legislator himself—the very author of the darkness.
By the same causes by which the mind of the individual is prevented from extracting anything like clear conception out of the confused mass of disorderly matter shot down before it, the mind of the legislator is operated upon in the same way and with the same effect. The legislator, and not the individual, is indeed the person by whose feet the dust is raised; but when it is once raised, and all the time it is raising, his own eyes are not less effectually prevented from enabling him to see his way through it, than the eyes of those upon whose back his commands and prohibitions, burthens and restraints and punishments, and all his snares and entanglements, are rained down.
Hence, not only is the individual prevented from knowing and understanding what on this and that occasion the meaning of the legislator is, or was when he wrote,—but in a certain sense the legislator is himself prevented from understanding what he himself is doing while he writes. What may or may not have happened to him is, to know what his own meaning, wish, and intention is at the time:—but that which is sure to happen to him is, not to know what his own wish and intention would have been, if throughout the whole field of action of which he has taken possession, his conception of his subject had been at the same time correct and complete to the degree in which it ought to have been so,—and might have been, and perhaps would have been, if the obstructions which the accustomed system of disorder raised up before him as he advanced had been removed, and his intellectual faculties had received the comfort of those helps, which, on every other part of the field of mental action, are framed, communicated, received, and employed in such salutary abundance.
Of the darkness and confusion of mind of which the effects are so generally conspicuous in the works of English legislators, abundance of examples might be produced. In the examination of one statute, I have found a multitude of such gross palpable grammatical errors, as scarcely any schoolboy, who had made his way to the upper form of any school in which no language was taught besides English, would see himself convicted of without shame.
The penman, whoever he was, did he not know better? No supposition could be more palpably untenable. In the works of Parliament, and nowhere else, are marks of ignorance, thus inconsistent with the most ordinary education, to be found. On any other subject, on any other occasion whatsoever, it may be affirmed with confidence, that not one of them would have been exhibited by this same hand. Scattering words and phrases blindfold, through a wild wilderness of words scattered in the same track by preceding travellers, no wonder that at every other step he should have been losing his way. On no other ground would even these very feet have lost their way. Why? Because on no other ground has any such wild wilderness been raised up.
Innumerable are the oversights that will be seen exhibited in this fertile field—innumerable the instances in which the legislator will be seen to have either fallen short of, overshot the mark, or gone beside it—innumerable the instances in which, in case of non-compliance, execution of the law upon the disobedient would be found impracticable.
Numberless the blunders of all sorts and sizes:—and by what cause produced? By the system of discord which the legislative draughtsman found pre-established, that confusion had first been established in his own mind, which his effusions propagate, and thicken, and increase in other minds.
But the more troubled the waters, the more productive the fishery:—and since such is the effect of error and imperfection, that all the loss goes to the account of others, while all the profit, and that a boundless one, goes to his own account, to expect that by an official lawyer, or any one who hopes to become such, any proposition for the amendment of the legislative style should be regarded with the marks of any more favourable sensation, or any other reception than that of inward horror and outward contempt, would be an expectation about as reasonable as that an individual, who is paid by a per centage on the amount he expends, should be sincerely and unaffectedly desirous of keeping down the amount of such expenses.
Of all the several vices spoken of under the head of imperfections of the first order, the cardinal vice is Uncognoscibility.
Dependent on and proportioned to the notoriety, and hence to the cognoscibility of the rule of action, are whatsoever good effects can have been expected from it:—notoriety, reference, viz. being had to the individual occasion on which, in order to be productive of the good effects looked for, it is necessary that an act of the sort of those which stand commanded by it should be performed:—and the converse, in the case of acts prohibited or permitted.
It is only in proportion as it is thus notorious, that a law can be productive of any the smallest particle of good effect. But of bad effect, without any such notoriety, it is capable of being productive in no inconsiderable degree. Such is the case with it, when in a case of penal law, non-observance has for its effect punishment—and when in the case of law non-penal, non-observance has for its effect burthen or inconvenience in some other shape.
On the part of the mass of law in question, notoriety;—on the part of him who in some way or other is concerned in point of interest to be apprized of it, cognition;—depends partly upon external circumstances, such as the operations, if any, that are performed for the purpose of giving it notoriety,—partly upon internal circumstances—circumstances constitutive of its internal or intrinsic aptitude for being notified.
Uncognoscibility on the part of a mass of legal matter is a quality which may be referable either to a state of things extrinsic and foreign to the law itself, or to the nature and constitution of the law itself.
In so far as it has its origin in a state of things extrinsic to the law itself, it may be termed uncognoscibility ab extra;—in so far as it has its origin in the nature and contexture, the matter, or the form of the law itself, it may be termed uncognoscibility ab intra.
In so far as the imperfection comes under the denomination of uncognoscibility ab extra, it is the result of want of promulgation:—deficiency or inappositeness in respect of the operations necessary to convey it to, and fix it in the minds of the several persons, who on one account or another are in point of interest concerned to be acquainted with its existence and contents.
Uncognoscibility ab intra may have its origin either in the form of the mass of law in question, or in the matter. In so far as it has its origin in the form of the law, it has its origin in one or other of the imperfections of the first order,—viz. ambiguity, obscurity, or overbulkiness.
Overbulkiness may to this purpose be distinguished into absolute and relative,—relation being had to the persons concerned in point of interest in being acquainted with it.
Overbulkiness on the part of a mass of law is absolute, in so far as it cannot be reduced by the mere process of distribution, in which division is necessarily included.
When overbulkiness is relative only, it is capable of being reduced more or less by the mere process of distribution as above;—viz. by taking the whole mass and distributing it among the different persons (viz. individuals or sorts of persons) who are concerned in point of interest in different parts of it:—breaking it down into so many distinct portions as there are sorts of persons, each of whom is concerned with one part only.
Whatsoever portion of legal matter has no existence but in the form of unwritten law, has not, properly speaking, any existence. For it is only in virtue of certain determinate words to which it has been consigned, and of which the expression of it is composed, that a portion of law can be said, properly speaking, to have any existence. Without such words, without such text or tenor, as the phrase is, belonging to it, whatsoever is given as and for a portion of legal matter, exists only by fiction—is a mere figment of the imagination;—and whatsoever has no existence, is effectually and absolutely uncognoscible.
Though on the subject in question there exist not any portion of the real matter of law, a man may be punished, as day by day men are punished, as for disobedience to, or non-compliance with, such law:—but it is not by any such act of power or punishment that a real law can be brought into existence. Punishment is the act of a judge, or any other person who has power to do evil to the party said to be punished: a law is the work of none but a legislator.
In so far as it is in respect of its matter that a mass of law is uncognoscible, it is for want of visible reason—of reason either apparent on the face of it, or made known along with it,—or by apt expression annexed to the text or tenor of it.
In this case, so far as regards the matter as above, the intrinsic uncognoscibility on the part of the mass of law will not, it is evident, be absolute and entire;—it is not to every man, and at all times, that an acquaintance with the nature of its contents, and at the same time with the fact of its existence, will be impossible.
But by indication of the reason, if so it be that it have a reason, such an instrument of fixation will be provided, such an anchor for fastening it in the mind, as cannot by possibility be given to it by any other means.
Ambiguity and Obscurity.
Between ambiguity and obscurity the connexion is close, and almost undistinguishably intimate.
A locution is ambiguous when two significations are presented to view in such manner, that though it be clear to the reader that one of the two was meant by the author to be regarded as his,—yet which of the two it is remains a matter of doubt.
Its etymology considered, by the word ambiguity, if taken strictly, an intimation is conveyed, that of the rival significations in question the number is but two. In the nature of the case, however, as certified by experience, to the possible number of these candidates there are no certain limits. But forasmuch as, for the purpose of comparison, these rival significations may, be they ever so numerous, be taken up, and held in contemplation by pairs, and as the etymology of the word comparison imports, it is only when held up together in pairs, and not in any greater number, that of the points of agreement and difference amongst a number of objects—say accordingly between object and object—any such conception as shall be at once distinct, correct, and complete, can generally, if at all, be formed;—on these considerations, be the number of these rival significations ever so extensive, the terms ambiguous and ambiguity may still be employed in speaking of them.
Obscurity may be resolved into ambiguity, or at least the relation of the one imperfection to the other manifested, by considering the mind, as tossed about, as it were, in case of obscurity amongst a number of rival significations altogether indeterminate and even infinite. For, that in the mind of the author in question, be he who he may (he being in his right mind), no meaning whatsoever was at the time of penning the discourse in question present, cannot seriously be supposed. Some meaning or other, then, he cannot but be supposed to have had;—and therefore, till some determinate meanings in a limited number present themselves to the conception, it will remain wandering in infinite intellectual space, the field, abode, and station of an infinite host of meanings.
Sometimes one single determinate meaning will have presented itself—and still, whether that be the author’s real meaning may remain matter of doubt. This case will be apt to present itself as belonging to the head of obscurity:—if considered as a case of ambiguity, the doubt must be considered as having place between the determinate signification on the one hand, and an infinite number of indeterminate ones on the other.
In a discourse of this sort, when an instance of ambiguity presents itself, the state of dubitation may be either merely temporary, or ultimate and definitive. And so in regard to the case of obscurity.
In the case when it is temporary, a distinction may be made between the case where, by a view of the context, it is corrected without examination, and the case where to the solution of it examination is necessary:—in the first case it may be distinguished by the appellation of momentary—in the other, of permanent.
Of any the slightest and most evanescent degree of ambiguity, even though incapable of being productive of any permanent doubt, the effect upon the mental feelings is unpleasant: it produces upon the mind of the reader a sort of sensation, attended with uneasiness to the mental faculty called taste—an uneasiness which seeks vent by stigmatizing the discourse with the imputation of clumsiness or inelegance.
This sort of inconvenience, such as it is, is one that accompanies the imperfection in question, whatsoever be the species and character of the discourse which is the seat of it.
If, though not definitive, the ambiguity be permanent,—to the slight and evanescent uneasiness produced by the inelegance of the discourse, considered in a general point of view as a discourse, is added the more serious uneasiness, the anxiety which depends upon the nature and character of the particular species of discourse here in question,—the anxiety produced by the consideration of the effects of which it may be productive,—which, in the character of a portion of law, it may have upon the interest of the reader, or of some individual, or aggregate of individuals, whose interest has been bound up with his own by the tie of sympathy.
If the imperfection be not only permanent but definitive, the consequence is, that he is thereby subjected, not merely to the apprehension, but to the danger of some operation more or less prejudicial to his interest (as above explained* ) at the hands of the law: in penale, to some punishment, or else to some privation to which he considers himself as under a prudential obligation of submitting, lest he should subject himself to such punishment: and so in civile, in non-penale, in regard to burthen, an inconvenience in the shape of loss, or any other shape.
When the ambiguity is but of the momentary or evanescent kind, take any individual instance by itself,—the utmost evil—the utmost uneasiness producible by it, will in general be a quantity altogether impalpable, too minute to have any claim to regard. But when repeated and multiplied to the degree in which, in the composition of an entire statute, it is capable of being multiplied—of a statute of that figure and bulk which in the English statute-book is so frequently exemplified, even this slight species of imperfection is not incapable of being swollen into a serious inconvenience. Lay upon a man’s shoulders a burthen of a certain weight,—it may be composed of an impalpable powder, yet the pressure of it will not be the less grievous.
In regard to ambiguity, distinctions productive of practical use may be derived from the consideration of the modifications of which the source or seat of the disease is susceptible.
1. This seat may be in a single term, in a single word,—say in termino—in vocabulo.
2. It may extend itself over a whole phrase, or collection, or series of words, more or less numerous, taken by itself,—say in propositione, or in contextu.
3. Its seat may be, not in any single word or phrase, but in any single word or phrase considered with reference to two others; in which case, the seat of the ambiguity is a compound seat—its elementary parts, the three words or phrases taken together,—in situ, or ex malâ collocatione.
Thus, in the case of a phrase capable of producing the effect of a limitative clause, placed between the other clauses, it may,—how clear soever in itself,—and, moreover, how clear soever each of those two other clauses may be,—be productive of ambiguity, in respect of the doubt to which of the two it was intended to apply itself: temporarily, permanently, or definitively at least, such will be the effect of any such interposed clause, if consistently with apparent common sense, it be in its nature applicable as well to the one of them as to the other.
Of the modes of ambiguity hitherto above brought to view, every discourse, whatsoever be the subject and object of it, is susceptible. To an ulterior mode of ambiguity, discourse, in so far as it possesses the force of law, is liable. This is that which is so apt to have place, when it has happened to the same subject to have been taken in hand by laws of different dates: the question in this case being, this portion of law, in the instrument of earlier date, is it, or is it not, to be considered as superseded by this other portion of law contained in the instrument of more recent date?
To a doubt of this nature, it is only by accident that any interpretation whatever can be afforded by the maxim, Leges priores posterioribus abroguntur. The justness of the maxim is above dispute if, on the part of the legislator of posterior time, there existed any such desire as that of abrogating the provision made by the legislator of anterior time, abrogated it is, and must be deemed to be. But any such desire,—had it really any existence in his mind? A desire to any such effect,—was it really his desire? In that part lies the difficulty. The legislator of earlier time prescribes such or such a mode of doing the thing in question; the legislator of later time prescribes another mode a little different. The option between the two modes,—is it to be considered as left or taken away? and if left, to whom left?
As in the case of ambiguity and obscurity, so in the case of overbulkiness: the most serious part of the evil, the intensely afflictive, and at the same time all-grasping evil, is resolvable into, and coincides with that of uncognoscibility, viz. the chance which, in the character of a cause, the property in question has, in the instance of this or that individual person, of being productive of that effect, with its disastrous consequences.
The condition in life of the individual in question is a circumstance by which the efficiency of this cause will, it is evident, be subjected to modification, and that upon a longextended scale.
The man of law is the sort of person on whose faculties, considering the case in the abstract, the species of burthen ought to be found pressing with the severest pressure: in the shape of law, the burthen that presses upon him being the aggregate of all the several burthens that are to be seen or felt pressing upon any other shoulders.
But this being a sort of burthen which, in that profession, presses not upon any man’s shoulders any further than in consideration of a more than equal retribution it has been his desire and his pleasure to submit them to it; the consequence is, that when the burthen is the most bulky, the suffering produced by it is, in mathematical language, a negative quantity,—in plain language, real suffering there is none, but more or less enjoyment in its place.
It is to this simple circumstance that the body of the law, taken in its totality, is obviously indebted for its present bulkiness. Such as it is, it is the handiwork of the man of law. While to every other class of men it is, according to circumstances, an instrument of pressure, affliction, ruin, death,—to him, and in proportion as to other men it is productive of these evils, it is an instrument of aggrandisement, of opulence, and power.
No wonder if in every country, and in every age, down to the present moment, the whole force of his faculties have been bent, not to the alleviation of this burthen, but to the working it up to, and keeping it up in a state of the most mountainous bulk, and thence of the most consummate uncognoscibility that, under the spur of mighty interest, human ingenuity on the one part could devise, human nature and stupidity on the other part submit to and endure.
It is not merely by its immediate operation, and in the simple ratio of the magnitude of the mass, that bulkiness on the part of a mass of law tends to produce, and so unhappily does become productive of, uncognoscibility. The more there is of the mass, be it what it may, the more there is of that matter of which ambiguity and obscurity are capable of being found the attributes. Moreover, by the same causes by which his exertions have been engaged in endowing this his work with the most enormous degree of bulkiness possible, by the same causes have they been directed to the object of giving existence, perpetuity, and increase, always in the utmost possible degree, to those other vices.
Though of two bodies of law, each professing to be complete, what may easily enough happen is, that not the greater, but the lesser should, taken in its totality, be more ambiguous and obscure, yet nevertheless sure it is, that the greater the bulk of any such mass, the greater, more perfect, and exquisite, is the degree of ambiguity and obscurity which it will be in man’s power to plant in it.
Accordingly, not only in the article of bulkiness, but, under favour of it, in the intimately connected articles of ambiguity and obscurity, there will in the field of law be occasion to witness, under favour of such causes as are not to be matched elsewhere, such effects as are alike incapable of being matched elsewhere.
Bulkiness on the part of the body of the laws may be distinguished into absolute and relative.
Absolutely considered, a body of laws may be said to be inconveniently bulky, when, taking the whole of it in the aggregate, it is considered as pressing in an inconvenient degree upon the faculties of the whole body of the members of the community taken in the aggregate.
Relatively considered, this or that part of the body of the laws may be said to be bulky in an inconvenient degree with relation to this or that part of the whole body of the members of the community considered as loaded with it, when, although if to each one were presented the whole portion with which on one account or other he is concerned,—and thence concerned to be acquainted with,—and no more, the case might be, that the pressure of such portion might not be so great as to be inconvenient to him; yet the case being, that in addition to that portion with which he is concerned, such person is burthened with a quantity of matter, and that to a vast amount, with which he is not concerned,—hence it is, that in a relative sense, the whole aggregate of the body of the laws is, with relation to the whole body, composed of all the members of the community taken together, in a highly inconvenient degree bulky and oppressive.
From this theoretical distinction between bulkiness in an absolute, and bulkiness in a relative sense, results a practical expedient, such as in the character of a corrective remedy will be found of sufficient efficacy to reduce, in the instance of each individual, the amount of the matter pressing upon his shoulders, so as to make it no longer, in the instance of any one individual, a source of considerable sensible inconvenience.
The principle or rule of division, or distribution, is the name by which this practical expedient may from henceforward be distinguished; and the method to be pursued in applying it throughout to the best advantage, will be the subject of consideration in a succeeding Chapter.*
EXPLANATIONS RELATIVE TO THE IMPERFECTIONS OF THE SECOND ORDER.
Unsteadiness in respect of Expression.
This imperfection has place when, and in the degree in which, for the conveyance of one and the same idea, or portion of an idea, different locutions, whether single or many-worded, have been employed.
The imperfections of the first order, to which this imperfection of the second order is indebted for its vicious quality, are ambiguity, or obscurity and bulkiness.
When so it really is, that it is a man’s meaning to express two or more different things, difference in respect of the expression is the sole resource; therefore so it is that, for the moment at least, when two different sets of words are observed to be employed, the notion that not one and the same thing, but two different sets of things, are intended to be expressed in and by the use made of these different sets of words, cannot but present itself.
To the production of the inconvenience of overbulkiness, it is conducive rather by accident than of necessity. When so it is that to the expression of one and the same idea a number of different expressions are successively employed, they will naturally be of different lengths, and the difference between the length of the longest that happens to be employed, and that of the shortest of those by which the same sense would be expressed with equal aptitude, multiplied into the number of the times that, in the discourse in question, this bulkiest expression recurs, gives the maximum of the bulkiness which, by means of this imperfection of the second order, is produced by this same bulkiest of the several synonymous expressions.
Thus suppose, that for the designation of the idea in question, a locution composed of two words would suffice: instead of it, in ten places a locution composed of four words is employed; and in ten others, a locution composed of eight words: were the four-worded locution the only one employed in the twenty instances, the quantity of redundant matter would be equal to the quantity of useful matter: were the eight-worded locution alone employed, the quantity of redundant matter would be to the quantity of useful, as four to one.
Unsteadiness in respect of Import.
Opposite and correspondent to unsteadiness in respect of expression, is unsteadiness in respect of import.
Unsteadness in respect of expression is, where, for the expression of one and the same idea, or part of an idea, divers words or sets of words are employed; unsteadiness in respect of import is, where, in the compass of the same discourse, to the purpose of denoting divers ideas, or portions of ideas, one and the same word or set of words is employed.
Ambiguity is the primary imperfection, towards the production of which, the tendency which this imperfection of the second order possesses, is sufficiently manifest.
It is only by accident that the species of imperfection here in question has found its way into a mass of English statute law; the soil has no particular attraction for it. Instances of it may, however, occasionally be found.
The following are examples of this unsteadiness in the use of terms:—
1. Common law, employed to signify fictitious, judge-made law, as distinguished from real legislator-made law;—
Common law, as distinguished from equity, as employed to distinguish the mode of procedure pursued in the original set of courts, from the mode of procedure in the courts called Equity courts.
2. Civil law, employed as synonymous respectively to non-penal, Roman, non-canon, non-military, admiralty, non-ecclesiastical, non-common law. In the first case it denotes, on the part of the enactments in question (real, in the case of statute-made law—fictitious, in the case of judge-made law), the absence of suffering appointed for the purpose and under the name of punishment. In the case of Roman law, and canon law, it is employed to designate the source from which the rule of action, by the enactments (real or fictitious as above) of which it is composed were derived. In the case of military and admiralty law, the occasion on which, and the purpose to which, the rule of action constituted by it is applied.
Thus it is, that under the existing system on the part of the arrangements themselves, and on the part of the language employed, a correspondent inaptitude, all-pervading and most exemplary, has place.
Redundancy of Matter, i. e. of Words.
The imperfection of the first order, to which this imperfection of the second order presents itself at first sight as conducive, is bulkiness.
In the character of a cause of obscurity, and thence to a greater or lesser extent of uncognoscibility, bulkiness will, even when most indispensably necessary, be ever a matter of just regret.
In so far as it is necessary, and has appropriate utility for its justification, the inconveniences that result from it, be they what they may, find their proportionate compensation.
But where redundancy has place, the redundant matter not having by the supposition any part of it any use, it is by the whole of it a mass of mere mischief.
Another imperfection of the first order, to which on a nearer view this same imperfection of the second order will be seen to be naturally and frequently though not constantly conducive, is obscurity.
Be the subject what it may, the more redundant the scheme or plan of phraseology which it happens to an author to take up and set out upon, the greater the probability and danger is of deficiency—relation being had to the scale upon which he has undertaken thus to operate; for the more ample the task which he has set himself to do, the greater is the quantity by which, in his endeavours to execute the whole of it, he is likely to be deficient.
In the case of the English Act-of-Parliament style, the plan and scale of operation being, when compared with any ordinary discourse, by far more copious and more redundantly copious, the probable amount of deficiency receives a proportionable increase.
A little further on, occasion will be taken to give a sort of analytical view of the principal forms in which, in the contexture of an English act of parliament, this imperfection may be seen to exhibit itself.
But it is from the words, and from the words alone, that their import can be collected; and when, as between locution and locution, a difference—any the slightest difference—is observable in the words, a correspondent difference in the intended import can scarcely ever, for the moment at least, fail to present itself to the reader’s view as a possible cause of such difference in respect of the words. In a word, in the character of an efficient cause of obscurity, unsteadiness in expression has been already brought to view,—and of unsteadiness in expression, the alternation between redundancy and deficiency is one mode.
Be the nature of the mass of literary matter in question what it may—matter of legislation, or any other portion of it,—it may be said to be longwinded in proportion as the line of words is long and protracted, through which the conception has to travel before it can find a resting place.
In the case of an English act of parliament, for example, the whole mass is to appearance cast into sections, in each of which the elementary parts, the words, are in such sort connected, that under pain of not comprehending any one part, the reader finds himself under the continual obligation of gathering up the matter as he advances, and retaining in his mind the whole at one grasp, before he can make himself, or feel as if he had made himself, master of every part of it.
One imperfection of the first order, to which this imperfection of the second order is conducive, is again obscurity.
To the physical eye, the deeper and more protracted any medium is, through which it happens to any object to present itself to view, the deeper the obscurity in which the object appears to be involved: to the mental eye, in like manner, the longer the paragraph, the greater the difficulty of perceiving its meaning, and on all occasions penetrating to the end of it and all through it: to shift the metaphor, the greater the number of the words, the greater the chance that, sinking under the task of picking up the import of them one by one, it may, ere the task is over, let idea after idea drop out of its grasp, and in its anxiety not to lose any, drop more and more, till at last it have lost all possession and command over them, and retain nothing but a dark and indistinct notion of the whole mass, or any part of it,
If mere simple redundancy be of itself a cause of obscurity, longwindedness is a much more powerful one.
As in the case of bodily, so in the case of mental labour—what oppresses a man is not so much the absolute magnitude of the quantity of the work he has to go through, as the shortness of the time he has to do it in,—or rather the quantity which it is necessary for him to go through, before it is in his power to take repose.
In an English act of parliament, in each section the connexion given to the matter is commonly such, that when once the mind has entered upon it, no repose is to be had till it has reached the end of it: no, nor then neither, unless such be the strength of its grasp as to give assurance of its retaining, in a full and distinct point of view, the whole mass of the matter which, parcel after parcel, it had in the course of its progress through the section been taking up.
So much worse than absolute redundancy is longwindedness, that if in any instance, under the oppression produced by longwindedness, it were deemed necessary to seek relief,—relief would in many, and indeed in most instances, scarcely be to be found on any condition other than that of adding to the number of the words.
A bad and inconsiderate sort of economy is among the most productive of the causes by which longwindedness in masses of discourse, in sections and paragraphs and sentences, is produced. One predicate, it is conceived, may be made to serve for two or more subjects; and thus two or more substantives, with their respective complements of attributes, are forced under the governance of one verb. But the masses which the pen thus conjoins, the mind must sever, before it can embrace and make itself master of any one of them; nor of any one such fragment of a proposition can it acquire a steady view, on any other condition than that of making it up into a complete one, and accordingly making up within itself the complement of words necessary to that purpose.
Thus it is, that to dispel the obscurity produced by longwindedness, an addition must be made to the absolute number of words:—an addition by the amount of which, if it did not find the original number defective, it would render the mass of matter redundant.
In an ordinary discourse, it may be not easy perhaps to find an instance of a sentence which, labouring under the imperfection of longwindedness, can be cured of it upon any other terms than that of making additions, and those very considerable ones, to the lengthiness of it. Take up a longwinded sentence in which matter for ten sentences is discernible,—take it in hand and break it down into ten short ones,—scarcely will it happen, that for the composition of these short ones, twice the number of words contained in the original longwinded sentence will suffice.
It is perhaps only in lawyers’ jargon—it is only in the language of an English act of parliament, that instances are to be found in which, upon the breaking down of a long-winded section into its component members, the aggregate of the words contained in the new-moulded parts shall not exceed the aggregate number of the words contained in the original article. The reason of this will be found in the circumstance, that in such a variety of forms, each section embraces so large a quantity of redundant and peccant matter that may be extirpated, not only without prejudice, but with signal benefit to the sense.*
Complexity or Complicatedness;—whence Entanglement.
Entanglement is a natural result, when in one and the same grammatical sentence divers logical propositions are involved and drawn out together.†
One imperfection of the first order, to which this imperfection of the second order is conducive, is obscurity.
Even when clear of entanglement, longwindedness, it has been seen,‡ has obscurity for its proportionate result;—but when to longwindedness, entanglement is added, the obscurity, it is evident, will be apt to be increased in a ratio greater than that of the longwindedness.
In the case even of simple longwindedness, the task given to the apprehensive faculty may be greater than it can effectually comprehend and retain within its grasp: the labour of thus holding the matter it embraces, without letting drop any portion of it, may be more than the intellectual faculty of the individual in question is able to sustain;—and when to this labour is added that of unravelling and disentangling the interwoven threads, the mind cannot but be the more in danger of letting go its hold under such a task.
Another imperfection of the first order, to which this imperfection of the second order will, whether constantly or not, be naturally and frequently conducive, is bulkiness. As the entanglement runs on, the obscurity thickens—as the obscurity thickens, it attracts more and more the attention of the penman:—fearing lest the mass should grow too involved, and through much entanglement too obscure for use, he sets himself to disentangle it—to point out this or that distinction in the provision meant to be made respecting the subjects thus involved. But as by words it was that the matter was entangled, so it is only by words that the disentanglement can be effected, or so much as aimed at: and thus it is, that while increase is given to obscurity, so is it to bulkiness.
Nakedness in respect of helps to Intellection.
The species of imperfection here meant to be brought to view, is that sort of blemish of which no species of discourse is in its nature unsusceptible, but which in England is in point of fact in a manner peculiar to the discourse of the legislator—to that species of discourse in the instance of which the consequences resulting from it are of the most inconvenient and pernicious cast.
To such a degree has been the success with which in this line of sinister industry the labour and ingenuity of the man of law has been attended, that he has kept in a state of depression below the condition of barbarism, not to say of savage life, that part of the means of communication between mind and mind which has been unfortunate enough to fall into his hands.
Of these helps, the most prominent and obviously necessary examples consist of two connected operations:—the one consisting in the making division of the whole mass of literary matter, be it what it may, into a number of parts of a moderate length,—of a length suited to the conceptive and retentive powers of the description of persons for whose eye it is destined; and the other, in giving to each of such parts a name by which it may be called.
Arithmetic—the humble but useful art and science of arithmetic—furnishes a set of names which possess the advantage of being with equal propriety and convenience applicable to any mass whatsoever, physical or psychological, into whatsoever parts it may be found convenient to divide it;—and these denominations, besides being so universally apt, are at the sametime less bulky than any others that could be devised.
Religion has availed itself of these helps to intellection; and of the assemblage of works of which the sacred volume is composed, each one of any length has been divided into numbered chapters, and each chapter into numbered verses.
The interested and crafty bigotry of the man of law has refused to the people an accommodation which the scrupulous piety of the theologian could not refuse. An act of parliament repels the dividing line of the arithmetician with no less horror, than the accursed soil sown with salt rejects the plough of the husbandman, and yields no fruit. A mathematical point has no parts: so neither has the chaos of an act of parliament.
Many are the modern volumes, in each of which the quantity of matter exceeds not the quantity in a single statute. Yet this statute is no less sacredly indivisible than if fine or præmunire had declared it one and undivided.
The licentiousness of the press has indeed divided it into parts called sections; and to each of these sections this same licentiousness has gone so far as to affix a different number;—but in the manuscript on which alone has been imprinted the touch of the legislative sceptre, this conceit has no mark to give warrant or allowance to it. Number it has none—division it has none;—what token of separation is afforded, is afforded not by a black line—a blank instead of a whole line, or instead of the latter part of a line;—still less by any of those numbers by which in the authentic letter-press copy it is introduced. A lot of surplusage, and mostly a lot to the same effect, such as—“And be it further enacted,”—or, “And be it further enacted by the authority aforesaid,” gives commencement to a sentence:—and it is on the reappearance of this useless string of words that the printer finds his only warrant for the arithmetical figure which, to the several successive masses thus distinguished, he has ventured to affix.
None are so deaf as those who will not hear—none so unintelligible as those whose aim and determination is not to be understood.
Obscurity and bulkiness are the closely-connected fruits of which this voluntary nakedness is productive; and they may be seen growing upon the same stalk.
As often as a reference comes to be made, the seat of the matter referred to is either in the act itself from which the reference is made, or in some other act.
1. If in the act itself, to that mode of designation which never fails to be employed, except when misdirection is an object either of study or indifference—viz. designation by the arithmetical name—to that only rational and honest mode of designation, is substituted an intimation that in some part or other of that same act, or at best somewhere or other in the preceding part, or somewhere or other in the succeeding part of that act, that which is meant to be designated—that which the legislator has in contemplation—the matter which the legislator has in his mind, will be to be found. What is the consequence? That in the one case you have to search through and examine into the whole number of the sections, one excepted, contained in the act—in the other case, half that number upon an average.
One hundred and twenty-three is the number of sections in the act herein employed* for an example;—fifty, the number of the folio pages in which these one hundred and twenty-three sections are contained. Here, then, instead of a few arithmetical figures, not occupying all of them together a space greater than that which is occupied by a word of ordinary length, the reader has somewhat more than fifty pages to pore over, and in the other case somewhat more than four and twenty, containing each of them about half as many thousand words; and this double and single labour is imposed several times in the course of this act.
But the passages in which this same subject, be it what it may, is touched upon, are they one or many?—and where is it, or where are they?—and in either case, of each such passage how much is there to the purpose? These are among the questions to which, on any or each occasion, a man may have to find an answer, always at his peril: to the magnitude of which peril no assignable limits can be set but those which are set by death.
2. If it be in another such act that the matter in question is to be sought for, then to the designation of the game to be hunted for, is to be added the designation of the field in which the hunt is to be made. Figures and letters to the amount of the numbers of letters in a word—45 Geo. III. c. 72, for example—are the signs employed for this same purpose by each non-official hand. The title of the act is the only sign which the united power of King, Lords, and Commons, is ever suffered to employ for this same purpose. The title of an act!—and what is this same thing called the title of an act—meaning, of an act of parliament? It is a sentence varying in length, not unfrequently containing in itself the matter of an ordinary page—and this whole page is no more than a sort of compound substantive, forming no more than a part of a grammatical sentence, in the texture of which not unfrequently substantives of this same sort in numbers are combined.
And what is this occasion on which all helps to intellection, all supports to the weakness of the human mind, are so studiously and perseveringly refused? It is precisely that on which such helps to human weakness are at the same time of most importance and most needful;—in which the magnitude of the mischief producible by a false step, and that of the pressure against which the support is needed, are both at the very highest pitch.
To facilitate the communication of knowledge in any inferior department—in the department of school grammar and common arithmetic—no exertions that can be made are thought too great; while in the master science—the science upon which the fate of every other science, and of all to whom it can happen either to teach them or to learn them depends—whatever exertions are made, on the part of the head-master at least, have for their object, not the causing it to be understood, but the keeping it from being understood, or causing it to be misunderstood, and that to as high a degree of perfection in the arts of non-intellection and mis-intellection as possible.
So far, then, as concerns helps to intellection, that which ought to be done by the legislator—and will be done by the legislator as soon as the interests of the whole community at large obtain in his eyes the preference over the separate and sinister interest of a small portion of it,—is not only in the first place to give to the subject-matter in question the benefit of all such helps to intellection as can be found applied to any other subject; but in the next place to look out for all such additional helps, if any, as can be found applicable to the particular subject which stands so much in need of them.†
Unapt Arrangement and disorderly Collocation.
The importance of apt arrangement—its necessity in the character of an instrument of operation, a support to the weakness of the intellectual part of the human frame, is such as, one should have supposed, would have never found so much as a single human being to contest it, if the pretence of being exempt from all need of this support had not found a stock of arrogance adequate to the advancement of it—with a correspondent disposition to regard as imbecile, those by whom their need of it is felt, and as trifling, useless, and thrown away, the toils of those laborious men who employ themselves in the endeavour to improve it.
The more bulky and obscure the subject-matter, the more urgent the need which, in its struggles with the difficulties of the subject, the mind has of this instrument of support.
It is easier to be convinced of the utility of good order in every case, than to give such a definition of good order, such an account of what good order is, as shall be applicable, and be at once seen to be applicable to every case.
Be the subject-matter what it may, its nature and properties will be the more correctly and completely, and thence the more clearly understood, the more correctly and completely the nature of the relation which it bears towards all such other objects as it can be seen to bear any assignable relation to, is understood:—and the more clearly the nature of it is understood, the more clear and pure from the imputation of obscurity will naturally any regulation of which it constitutes the subject-matter, be reasonably expected to be.
What objects ought to be brought into conjunction with each other—what ought to be kept separate from each, will depend upon the particular nature of the particular subject which is on the carpet.
But of bad order some general notion may be given, by descriptions which shall apply to good order, and thence to bad order, whatsoever be the subject.
Good order may be disturbed, bad order produced, either by joining together things that ought not to be joined, or by separating from each other things that ought not to be separated: and in the case of things that ought not to be separated, the order is worse and worse, the greater the mutual distance is to which they are cast.
Nomenclature is classification:—to denominate, wherever the denomination is a general term—to denominate is to classify, to methodize, to put in order, to arrange. By denomination, all individuals, all species, are brought together, brought as it were into contact by being comprehended under the same name.
If in the case of a number of objects brought together by the same name, the dissimilitude be such that no property belonging to each of them be found, then so it is, that of the thing distinguished by that name, nothing can be said that is true.
The greater the number of propositions that can be found to belong to each one of them all without exception, the greater the number of truths that can be predicated of them, and the more serviceable the principle of arrangement of which they constitute the subject.*
Bad order is either that which is such in respect of aggregation or disaggregation, or that which is such in respect of precedence.
In the case of that which is said to be bad in respect of aggregation or disaggregation, the order of precedence between object and object, in the case of such objects as are cast into one group by being brought under the same name, is not considered.
When the scheme of order in question is spoken of as being bad in respect of precedence, the articles with reference to which the topic of precedence is brought to view are considered as being each of them distinguished and made known by a separate name:—and thereupon it is, that in relation to the several objects or articles upon the list, the question arises which shall be placed or spoken of first, which second, and so on through the rest.
In this case, bad order takes place when, relation being had to the purpose or design, whatever it be, which is in view, that object which ought to have stood first, is placed second, or in some lower rank; and so in regard to the rest.
In the case of the English acts of parliament, instances will be found in but too great abundance, in which, reference being had to the purpose or design which was, or at any rate ought to have been, in view, disorder in both its shapes as above distinguished, may be seen to manifest itself.
Of Remedies for Ambiguity.
1. When the ambiguity is in terminis or in vocabulo, the nature of the case admits not any remedy susceptible of universal application. The term must either be changed, or, by such explanation as the nature of the individual case requires, the import of it must be limited and fixed.
2. So where the ambiguity is in propositione or in contextu.
3. Where the ambiguity is in situ, i. e. ex prava collocatione, the case admits of a remedy susceptible of a general description applicable to all cases.
A proposition capable of being understood, for the moment at least, as meant to be applied in the character of a limitative proposition to either of two other propositions, but in reality meant to be applied to only one of them, is inserted between the two. In this situation lies the efficient cause of the ambiguity.
The remedy is simple and effectual. Insert it neither between them both, nor after them both, nor before them both, but in the bosom of one of them; viz. of that one of them to which, and to which alone, it is, in such its limitative character, intended to be understood as applying.
Thus it is when the object in view is to apply a limitative proposition to one single principal proposition, and to that alone, the operation is sure and easy.
But suppose the object to be, to apply one clause in the character of a limitative clause to two or more; say to two principal ones.
Here the rule is, prefix it to both.
1. Do not place it between both; for to do so would be to render it doubtful whether it were meant to apply to both, or to one only—and if to one only, to which?
2. Do not place it at the end of both;—to do so, would be to give occasion to regard as the preferable supposition that it was meant to apply to the last alone, not to the first.
Insert it after the last of the two,—the idea naturally suggested by this position will be, that it was by that last, and that alone, that it was suggested;—that it was the last, that for want of this limitation was too general, and accordingly, but for the limitation so applied, the phrase employed for giving expression to it would have been incomplete;—that in presenting in the first instance the proposition, which by the supposition is too general, too comprehensive, a sort of false step was made, and it was to correct this false step, that in the way of after-thought, the limitative clause was added.
On this occasion, let the state of the author’s mind have been what it may, such is the state of the reader’s mind. The first conception he imbibes is incomplete and incorrect—incorrect by reason of its excess in point of extension, the result of the as yet unsupplied defect in the form of words employed for the expression of it—which defect consists in the absence of the limitative clause that was necessary to render the expression exactly commensurate with the import as it stood in the author’s mind. At the next step, indeed, the mind of the reader imbibes the conception by which he is enabled to correct the momentary error—to retrace the false step which he had made. But as in the progress of the body, so in that of the mind, the sensation of a false step is, however expeditiously and easily retrievable, a sensation of an unpleasant kind, such as by repetition is capable of being rendered seriously disagreeable; and such as even, in any single instance, it would be better to a man to avoid than to experience.
Take now the case where the clause meant for a limitative clause is placed before the first of the clauses which it is meant to limit by it.
Here, in the first place, so far as regards the first of the two principal clauses, all such error as hath just been brought to view is effectually prevented. At the very outset, notice is given, that the proposition which is about to follow is not meant to be given as expressive of the author’s meaning, till after the portion of extent, indicated by the antecedent, the limitative clause which is thus employed to introduce it, has been taken out of it.
Thus it is, that to the reader the unpleasant sensation, the sort of false step in question, is saved.
At the same time, on the part of the author, of that self-possession, that mastery of the subject, that state of complete preparation for the task he has set himself, that indication is given which has been above explained. At the very commencement of the sentence, the conception which it was his own endeavour to convey, was, it is manifest, already formed. Had the powers of the language sufficed for the conveying the conception in its perfect state in one single clause—such single clause, and no more, would have been employed for it. The language not being adequate to the purpose, he found himself under the necessity of employing two clauses—one of them to prune down and correct the other. But under, and notwithstanding, this imperfection in the language, he took care that in the mind of the reader no erroneous conception should be formed. For by giving notice, in the first instance, of the deduction that would come to be made, he took care that the conception should be already pared down to its proper scantling, before it presented itself for admission into the reader’s mind.
Now as to its application to the second of the two clauses which it is designed to limit. Being placed before this second, as well as before the first,—and in placing it before the first, these marks of attention and self-possession which have just been mentioned, being exhibited as above,—the conception will naturally be, that it was to this second that it was meant to apply, as well as to the first.
Either (says the reader to himself) it was the author’s meaning, that the one limitative clause should be applied to both the principal clauses that follow it—to the second, as well as to the first;—or if it had not been his meaning that it should apply to the second, he would have found some means of giving timely notice of the difference; or rather, had such not been his meaning, he would have, by giving the proper turn to the whole group of clauses, have taken sufficient care to prevent any such erroneous conception from being entertained.
Rule.—If you would avoid ambiguity arising from mis-collocation, or ex situ,—if there be but one clause to be limited, insert the limitative clause within it; if there be more than one, place it before them all.
In both these cases, besides obviating a logical disorder, the remedy exhibits a positive beauty. It is in the former point of view that it applies to the species of composition here in question,—viz. to the work of a legislator; in the other point of view, it is susceptible of universal application,—applicable to every discourse, whatsoever be the subject—though in a more particular degree to such as has persuasion for its object.
In the case of the single principal clause, ambiguity on the part of the discourse, probability of doubt on the part of the reader, uncertainty, more or less durable, being the constant result of the unapt collocation—and of the hesitation and uncertainty, a sensation of an unpleasant kind being as constant a concomitant, the not taking the requisite measure for saving him from this unpleasant sensation is a proof of a deficiency in that art—the art of pleasing—of which the very act of a man’s taking upon himself the character of a writer, shows it his wish to be a proficient.
In proportion to the constancy with which that symptom of weakness is avoided, and observed to be so, strength and self-possession, qualities agreeable to be observed, will on the part of the mind of the author be manifested—and on the part of the work, the correspondent agreeable quality, viz. force.
In both cases, the expedient employed is indicative of a mind which has the whole subject under command, and by which it is embraced with a firm grasp.
With respect to ambiguity arising ex vocabulo, the two following rules may be laid down for the avoidance of ambiguity:—
Avoid the use of any locution exclusively legal.
Expound all words of doubtful or varying signification.
Of Remedies for Overbulkiness.
In bringing to view the imperfections incident to the language of legislation, when in the character of an imperfection incident to any mass of legislative matter the vice of overbulkiness came to be placed upon the stage, the distinction between absolute and relative was stated as a distinction which, with a view to practical arrangement, would in a proper place be shown to be an object of prime importance.
The time is now come for inquiring by what means it may be employed in that character to the best advantage.
On casting, in this view, a glance upon the whole mass of legislative matter existing in the political state in question, whatsoever it may be, two observations readily present themselves at first sight. One is, that there is scarcely an individual in the country, at any rate the number of individuals cannot but be comparatively small, by whom, taken in its totality, it is physically possible for so enormous a mass to be borne in mind.
The other is, that taking for this purpose any individual at random, there can be but a comparatively small part of that vast whole, with which, in respect of any private and personal interest of his own, there can be any use in his being acquainted.
Be the bulkiness of the whole ever so great, if there be not any assignable individual with reference to whom it can with propriety be said to be over-bulky, it cannot with propriety be charged with overbulkiness.
Hence, in the character of a remedy, and that the main remedy against overbulkiness, we have a rule with a corresponding principle.
The rule is: let the whole mass of legislative matter be broken down into parts, carved out in such sort, that in hand, and thence in mind, each man may receive that portion in which he has a personal and peculiar concern, apart from all matter in which he has no concern.
Rule—the rule of distribution;—corresponding principle—the suum cuique principle—to which for this purpose, and in concerns of the sort here in question, reference may henceforward be made.
In the application of this rule and this principle, two points will require to be attended to:—
The first, and the only one of the two which is in a direct way conducive to the object here in question, is to observe and take care that in the collection made for the use of each particular individual or class of individuals, no portion of legislative matter in which such individual or class have not any such personal concern as above, be admitted.
Rule—the rule of purity;—corresponding principle—the nil alienum principle.
The other point is, in making up, for the use of each individual or class of individuals having a separate mass of legislative matter appertaining to himself or themselves as above, let care be taken not to omit any the least part of the aggregate mass of the legislative matter so appertaining to him or them.
Rule—the rule of completeness;—corresponding principle—the unicuique totum principle.
Take any point of time,—if at that point of time, a portion of law to which, at some future point of time, it may happen, to bear upon the interest of the individual in question, does not as yet bear upon his interests, such portion of law is as yet foreign to him.
At the time at which it does begin to bear upon his interest, then it is, and not before, that it concerns him to have it in mind, and to be subjected to the charge, in whatsoever quarter it presses upon him, in purse and in memory, which will be found attached to it.
In this observation may be seen the ground for an ulterior rule of distribution:—in the case of each individual or class, separate from such part of the mass of law as is matter of immediate concernment to him, such part as is but matter of eventual concernment.
Rule—the rule of ulterior purity;—corresponding principle—the nil prœmaturum principle.
To take an example in the general and all-comprehensive field of law:—To him who takes upon him the condition of a husband, and thereby becomes concerned in point of interest to be apprized of and bear in mind the provisions contained in the married man’s code, it may happen in the natural course of things to become a father. If, then, of the assumption of the condition of a husband, paternity were an immediate as well as a certain consequence, the reason for his bearing in mind the provisions relative to the condition of a father would take place at the same moment with the reason for his bearing in mind the provisions relative to the condition of a husband. But there being no such necessary and immediate connexion in the case, but so it is, that of those who become husbands, there are many to whom it never happens to become fathers,—here we see a sufficient reason for keeping the father’s code separate from the husband’s code.
So grievous is the charge imposed upon a man’s faculties, pecuniary and mental together—so grievous, in many cases is it capable of being, and indeed apt to be in some cases, that the reducing of it to its minimum is a duty, the proper discharge of which demands at the hands of the legislator his constant and unremitted care.
On the one hand, the importance of the interest at stake upon the fulfilment or nonfulfilment of the law—on the other hand, the absence or presence, the comparative efficiency or non-efficiency of the forces, whatsoever they may be, which tend to plant and fix the conception of the purport of the law in the mind of him on whom the fulfilment of it depends: upon these two circumstances depends, on the part of the legislator, the urgency of the demand which the nature of the case presents for the application of the legislator’s powers to the effectuation of this object.
Let us now, then, take a view of the different aspects which one and the same law is capable of bearing towards different descriptions of persons—the different ways in which their interests are affected by it—the different accounts on which they are concerned to bear in mind the purport of it.
Mention of the head or denomination of persons under which the portion of law in question will be to be found, together with the number indicative of the subdivision—such as the chapter, or section, or article in which it will be to be found: this, together with a concise intimation of the nature of the contents—(and a very concise one is all that will in any case be found needful)—such is the mode that will be found to serve, and to suffice for securing to each person adequate notice of every portion of law, the contents of which are not inserted at large under the head taken for the denomination of the class of persons to which he belongs.
By means of this additament, the matter of every such personal code will be distinguished into two parcels of matter of very different qualities;—viz. 1. Matter of direction;—this is the sort of matter which in the personal code in question is inserted at large—delivered in terminis. 2. Matter of information;—this is the sort of matter by which information is given of the several other personal codes, in which is to be found whatsoever other matter of direction in one way or other the person in question has concern with
Of the different ways in which the interests of different persons may be affected by one and the same portion of law.
A sort of law may be conceived, by which no more than one person or class of persons is affected in point of interest;—others are to be found, in which, by one and the same law, divers persons, in a number to which there are no determinate limits, are in point of interest affected in different ways.
On the present occasion, these variations will all of them require to be brought to view:—these being the considerations by which, with a view to the most effectual system of notification, whatsoever course is taken with respect to the composition and promulgation of the portion of law in question will require to be regulated.
If, in the case of an imperative, or say obligatory law, the well-being of the whole community or any part of it be the object aimed at, two parties, or at least one party, may be assigned, whose interests are affected by the portion of law in question. One party there cannot but be—the law being of the imperative or obligatory cast—who being bound by the law, may on that consideration be termed the party charged.
In this case, if so it be as by the supposition it is, that this law has for its object the well-being of the community or of some part of it, there must also be in that case some party who in that respect may be termed the party favoured by the law.
A case not without example is, that the party favoured by the law, and the party charged by it, shall be the same party—the same person or class of persons. In domestic life, this is the case with every command addressed by a guardian as such, or by a parent in his quality of guardian, to a child—by a preceptor as such, to his pupil as such.
In public life, this is the case with that whole class of laws which have for their object the enforcing of what is considered as a man’s duty to himself—the prevention of those acts by the commission of which a man is considered as doing an injury to himself, as in the case of drunkenness, prodigality, and so forth.
Even taking the whole mass of law together on the one hand, and the whole mass of the population together on the other hand,—if the principle of utility as above described, be the principle acted upon, the same coincidence between the party or parties charged, and the party or parties favoured, will in this case likewise be observable:—if all are charged by the law, it is to this end alone that they are charged,—viz. that they may all be favoured by it.
Suppose the whole population divided into two parts, of which one part alone is favoured, the other charged without being favoured: it is the case of complete and unrestricted slavery—such as in ancient Sparta seems to have had existence as between the Spartans and the Helotes; but in modern times does not seem to be exemplified in any country, even in those in which domestic slavery is to be seen in its harshest forms;—for in every slave-holding country protection more or less efficient is by law afforded to the slaves; and in so far as it is afforded, two parties may be seen whose interests are in opposite ways affected by such protecting laws,—viz. the slave, who is the party favoured—and the master, who is the party charged by it.
So again, in the case of those laws which have for their object the prevention of those pernicious acts from which, in so far as they are committed, men in general have cause to fear, at the same time that men in general are exposed to the temptation of committing them—such as in a large proportion are those laws by which security to person, and those by which security to property, is endeavoured to be afforded. Murder, theft, and robbery: these, for example, are among the acts which all men are interdicted from performing; why? Only that all men may be saved from suffering by them. Here, then, under laws of this description all men are parties charged, at the same time that all men are, and to the end that all men may be, parties favoured by those laws.
But if particular laws, or portions of law, be taken each by itself, a considerable class will be found, and the most numerous, and occupying in the Pannomion the largest space, in which the whole of the charge is laid upon one person or set of persons, while the whole favour is shown, and to the end that it may be shown, to another. Nor in this sort of partiality, as it may be called, is there any just cause for condemnation or complaint. Laws of that description are, it may be seen, and that in vast abundance, absolutely and indispensably necessary to the adaptation of the whole legal system to its general allcomprehensive and impartial end; and for whatsoever momentary partiality is exhibited by any one such law taken by itself, due and adequate compensation is, or at least ought to be, and may be, made by others.
Of the case last spoken of, the simplest modification is, where by one and the same disposition of law there are two parties concerned, of whom that the one may be charged and another party be favoured, the other is charged.
Thus in the 45th Geo. III. c. 72, certain officers therein named are charged with the duty of keeping hung up in a certain place, papers containing information to a certain effect. To what end? Answer: That certain persons, to whom for the purpose of prosecuting certain pecuniary claims of theirs, the information is useful, and may be necessary,—(viz. seamen, &c. having claim to prize money)—may have it at their command, and know where to meet with it.
Persons charged by the law, those official persons;—favoured by it,—seamen,—viz. such individuals of that class to whom it has happened to possess a claim of the sort there spoken of.
A party who under the provision of law in question is in the case of a party favoured, may be so either for his own sake, or for the sake of some other or others.
If for his own sake, and in so far as it is for his own sake that he is so—i. e. with a view to a benefit which it is intended he should reap—principal is the name given to the character in which he is thus favoured.
If it be for the sake of another, or others,—trustee or agent is the name given to the character in which he is thus favoured.
When for the sake of one set of persons (his principals) powers are given to a trustee to be exercised over another set of persons,—at the same time that in the exercise of those powers, a certain course of action is prescribed to him, and made matter of duty,—in such case, then, it is, that in that one person the characters of party favoured and party charged are combined;—it is, that for the benefit of the party in question, viz. the principal, he may be enabled to perform the service required at his hands, that the right or the power, by the possession of which he is favoured, is conferred as above. Favoured as he is, he is so to no other end than that he may be charged.
In so far as a party is placed in the situation of a party charged, unless the faculties upon which the charge bears are his passive faculties merely, the charge not being in any event liable to fall on his active faculties, the charge cannot be imposed upon him without need of action, on his part;—if not of positive agency, of negative at least—of purposed forbearance, which when purposed is as truly the result of will, as positive agency is, and for its production stands altogether as much in need of appropriate information, viz. notice of the legal arrangements by which the motives for such forbearance are created.
In so far as a party is placed by the law in the situation of party favoured by it, the favour thus afforded to him is afforded to him in some instances not without need of action on his part—in others without need of action on his part, to enable him to reap the benefit of it.
Thus, in so far as for the preservation of men’s dwellings from nocturnal invasion for the purpose of robbery, pains of law are appointed applicable for the punishment of persons guilty of such offences, thus far the favour thus shown to a householder and his inmates is afforded to him without need of action on his part;—and though the existence of the law were never to be known to him, the favour, the protection intended for him, would not be the less received.
But suppose, that for the rendering this protection the more effectual, power be given to this householder to arrest and detain the person of any and every such nocturnal invader—or even, rather than that he should escape, to have recourse to such operations, the result of which may be the depriving him of life,—in such case, the favour shown to him is not afforded to him without need of eventual action on his part;—nor can the favour thus shown to him, the protection thus afforded to him, be of any use to him any further than he has recourse to either, viz. by affording to himself the sort of protection which it thus empowers him to afford.
A portion of law, though to this effect, cannot be in any other case of any use to him any further than either by effectual notification from without he has been apprized, or by reasoning and inference has been led to believe in the existence of a portion of law to this effect.
Of these speculative distinctions the practical use is altogether obvious.
Whatsoever portion of law requires, on the part of a person to whom the favour shown by it is afforded, action, to enable either himself, or such other person for whom the benefit of it is intended, to reap such benefit of this portion of law, it is necessary that by whatsoever efficient measures are taken for planting and fixing the purport of it in his mind, the intimation conveyed to him should be of the correctest and completest kind:—and accordingly, that in the code denominated from the class of persons to which he belongs, the portion of the law here in question should be inserted in terminis.
On the other hand, whatsoever portion of law does not, for the purpose in question, stand in need of any such action on his part,—of the nature and existence of such portion of law, an intimation conveyed in general terms, together with reference to the head under which it may be found in terminis, suffices for every necessary purpose. To make known to him the care which the law in this particular has taken of his interests and his welfare, is all the service which, by the information thus given to him, in this case will be rendered to him. But surely, were it only for the reputation of the law itself, not to speak of the assurance and comfort thus afforded to the individuals, the intimation is of the number of those which neither ought to be, nor are much in danger of being despised.
Case where a number of persons are, in a company or in a string, jointly affected by and concerned in one and the same portion of law.
Numerous and various are the cases in which, to the rendering of a single service to a single person in the character of principal, the services of a multitude of persons in the character of agents or trustees is necessary.
If to the rendering of these intermediate services, the case be such that in the instance of each of them action is called for at the same time, they may be said to act in a group or circle:—if the case be such, that to the production of the ultimate beneficial effect it be necessary that they should act separately and at successive times, they may be said to act in a string or file.
It is in a group or circle that men act, in every case in which they act together in the manner of a political assembly or body-corporate, or a board.
It is in a file or string that they act, when for the transmission of any article whatsoever, such as a sum of money, a letter, or any article of commerce, it is necessary that the operations they respectively perform in relation to it should be performed at several successive points or periods of time.
In so far as it is in groups that men act, one single denomination serves commonly for the whole group—i. e. for all the several persons or sorts of persons of which it is composed.
In the case where it is in strings or files that they act, there will always be two different denominations of persons concerned together—the one to deliver the thing in question, the other to receive it—the deliverer and receiver of the thing in question.
In this case one code would serve for both; and of that one code the denomination should be a compound one, composed of the denomination of these two sorts of persons.
Each having need of action on his part, whether to render or to receive the service, the favour in question,—the intermediate service,—which for the benefit of some person in the character of principal leads on to the final and ultimate service in which the whole string of services finds its termination,—each has need, each has the same need, to have the law planted and fixed in his mind.
But what will in most instances be found to be the case is, that to each of the two classes of persons whose duties are on this or that occasion rendered by both together acting in conjunction,—other duties have been assigned—duties to be performed on different occasions by each of them, in some instances singly, in other instances in conjunction with some other associate.
But to every person in whose instance need of action has place,—in order that the intention of the law may be fulfilled, and the service which it has undertaken to perform be rendered, it is necessary that the law be planted and fixed in his mind: it is therefore necessary, that in the code which receives its denomination from the class of persons to which he appertains, this portion of law should be inserted in terminis.
But—that in this case the burthen imposed by the law on the mind of him to whom, on whatsoever account, it is necessary to be apprized of the duties imposed upon both these classes, and to whose cognizance it is therefore necessary that both these codes be presented, may be reduced to its smallest dimension,—when the portion of law inserted in the code denominated from one of these persons, is also inserted in terminis, and in the same terms, in the code denominated from the other, notice of this identity should in each of these codes be given in a note.
Modes of Notification.
In the case of any given individual or class of individuals, two different modes or degrees of notification must here be brought to view and distinguished.
One is exposition at large—or say, exposition in terminis; viz. where, under the head taken from the denomination of the individual or class in question, the portion of law in question (it being a portion in which, in one of the above-mentioned modes of concernment, he is concerned) is exhibited at length.
The other is by simple indication or reference; viz. when another head, under which the portion of law in question (this being also a portion of law in which, in some way or other, he is concerned) is set forth at length, is referred to.
Under the head taken from the denomination of the class in question, notification in this mode pre-supposes, it is evident, exposition at length, under the head taken from the denomination of some other individual or class. Be the portion of law what it may, under some head or other it is necessary that it should be delivered at length—delivered in terminis; but that it should be thus delivered under more such heads than one—that it should anywhere be repeated in terminis—is not necessary.
Necessity of attending to these distinctions in legislative practice.
The distinctive characters suggested by the suum cuique principle, are such as no man who acts in the character of a legislative draughtsman can be warranted in treating with neglect.
1. The question, what, in the provision or clause in question, is the individual or class of persons concerned in the character of party served, to whose interests it would do service—viz. on his own account—is a question which he can never be warranted in omitting to look at and bear in mind. Why? Because in point of expediency, in this supposed service consists the indispensable warrant for the portion of law in question, including whatsoever charges of an obligatory nature it may, whether in a direct or an indirect way, have the effect of subjecting him to. If no such individual or class can be found, the portion of law in question, be it what it may, is purely mischievous, and completely indefensible.
In the service rendered to some party favoured on his own account, consists on each occasion the legislator’s indispensable warrant:—which warrant will be sufficient or insufficient, according as the portion of law in question is upon the whole beneficial or otherwise—according as a balance on the side of good, or a balance on the side of evil, is the effect of it.
2. The question, what is the individual or class of persons concerned in the character of party charged—viz. in respect of his active faculties—is another question which he can never be warranted in not looking to and bearing in mind. Why? Because on the fact of the laws being actually taken up and borne in mind by each one of the individuals who in that character are concerned in it, depends whatsoever chance such law can have of proving efficient and productive of the service, of the good, in whatsoever shape good can be looked for as being about to be the fruit and consequence of it.
Be the command what it may, it is only in proportion to the degree of correctness with which, at the point of time which on each occasion calls for action on the part of him in whose instance obedience is looked for and meant to be produced, that obedience can be the fruit of it.
True it is, that without his having had it on that or any other occasion in mind, it may have the effect of causing him to suffer, in this or that way, pain in any shape and degree up to the pain of death. And such is the effect, intended or not intended, heeded or unheeded, which to a vast extent the mass of law, with which in mind and in pocket British subjects are actually burthened to so vast an extent, is actually productive.
Without his having had it on that or any other occasion in mind, it may have the effect of pouring money into the pockets of the retainers of the law in one or all their different forms and sizes. And such is the effect, intended or not intended.
Plea in favour of Redundancies—necessary to certainty denied;—and Rules for securing steadiness and certainty.
For this redundancy—for the accummulation of excrementitious matter in all its various shapes, in all that variety of forms that have been passing under review—for all the pestilential effects that cannot but be produced by this so enormous a load of literary garbage,—the plea commonly pleaded—at any rate, the only plea that would or could be pleaded, if men who are above law could be put upon their defence by any pressure from beneath, is, that it is necessary to precision—or, to use the word which on similar occasions they themselves are in the habit of using, certainty.
But a more absolutely sham plea never was countenanced, or so much as pleaded, in either King’s Bench or Common Pleas.
That this redundancy is altogether without use—that it never is in any the smallest degree the effect—that it is too palpably not the effect, or so much as the object,—are propositions that have received not merely a full, but a double proof.
One proof is, that there is another and a very different mode by which such certainty is really attainable:—and that such other mode, so far from being employed, is as it were carefully avoided. But of this presently.
The other proof is afforded by that unsteadiness which is a no less congenial attribute than is the redundancy of this established style.
Say that for the subject-matter in question some established denomination which is not only the most proper but the only proper one: such, for example, as the name given to a company in its charter of corporation. Here would be a reason which, how far soever from being conclusive, would at any rate be a plausible one for the exclusive use of that denomination, how longwinded so ever, as often as the occasion occurred for making mention of it in the statute.
Well, then, this strictness in employing for the designation of the thing in question the only proper designation, is it really observed?—so far from it, that from this only proper standard the departures may be seen to be frequent in a degree of wantonness. By no schoolboy, amidst the distress produced by the obligation of hammering verses out of a refractory subject, is any such profusion of synonyms and equivalent phrases manufactured, as may be seen to grow under the hammer of the parliamentary draughtsman, especially of these times.
The longwinded appellative, or other form of words, to what purpose is it regarded as necessary?
1. To intellection? In no instance is it ever employed, but that some shorter one may always be chosen, which is at least as generally and fully understood, and if there be any difference, more so.
2. To validity? Validity is exemption from nullity—and nullity, the offspring of fraud and absurdity, is the creation of positive law.
Pregnant as it is with injustice as often as it is carried into effect, the habit of injustice is not so extensive but that, if applied to the case here in question, the apprehension of nullity would for the most part be found in vain.
But suppose the case of the number of those in which the apprehension would prove well founded. In the frequent use he makes of the longwinded appellative, the draughtsman would still be without excuse, since the instances of neglect are not less numerous than the instances of observance.
Such, then, is the dilemma on one or other horn of which he will be sure to be impaled. Your longwinded appellative, is it necessary to justice? Violation of justice is rendered frequent and unavoidable by your frequent violations of your own rule. The consumption of words is it unnecessary? The mischief of overbulkiness is without compensation—the sacrifice made of conciseness is without equivalent, the barbarism and deformity without excuse.
Where certainty is really the object, it may be secured, it will be seen, without any addition to bulkiness—without any sacrifice in the article of conciseness.
What is more, the nature of the case will be seen to afford principles and rules, by the adoption and observance of which, the perfections of steadiness and certainty may be combined together.
The principle which requires that throughout the whole body of the law, for the expression of any given import, one and the same word or form of words be, unless for special reason, undeviatingly employed—call it the principle of steadiness.
Correspondent rule, expressed for conciseness and impressiveness in a different language, and that the most concise of languages—the Latin,—eadem natura, eadem nomenclatura.
By proper management adapted to the nature of each case, the principle of steadiness may be rendered a principle of conciseness;—a preservative against redundancy and overbulkiness.
For the avoidance of uncognoscibility and overbulkiness, and for securing to the language of the law the beneficial properties of certainty and conciseness.
Rule: Throughout the whole field of law, look out for such subject-matters or objects as, either by their importance, or by reason of present deficiency of fixed denominations, stand particularly in need of fixed denominations, and form such for them.
The following are among the various modes of exposition adapted to various cases:—
1. When, of a class of persons for which there exists no separate or other authentic denomination, frequent mention is about to be made, instead of employing for the designation of such aggregate a loose and varying description, fix upon some short appellative, if any such appellative there be in common use, and after such exposition in the way of definition as is adapted to the nature of the object, if in its nature it be susceptible of what is commonly understood by the term definition,—the import of it being thus fixed, and certainty so far provided for—for the sake of conciseness, employ on every occasion the short appellative.
Take, for example, the class of persons commonly denominated prize-agents.
In the act 45 Geo. III. cap. 72, in some places mention is made of them simply under that name; but it is not that name that is given to them when mention is made of them in the first instance. The appellation which on that leading occasion is employed for the designation of them, is a longwinded string of words, after which, besides the one concise and popular appellative, and this diffuse technical appellative, they are in different places spoken of under a variety of different descriptions.
In this case, the following are the words that may serve for the expression of the rule:—Definitio semel; definitum, toties quoties.
1. This appellative, whether single-worded or compound, as soon as it has received a definition in form, let it thenceforth, as often as it occurs in the text of the law, of any part of the body of the laws, be distinguished by a peculiar type.
2. The several words thus distinguished, let them be collected together, and printed in the form of an index, each of them with references indicative of the several passages in which they are employed.
3. The peculiar type, its use and signification being universally known, will, in the instance of each word on which it is bestowed, serve as a sort of certificate or memento that the word has a place in this index—that it is, accordingly, of the number of those words to which the attention of the legislator has been in an especial manner directed, and of which, so far as depends upon his endeavours, the import has been fixed.
This type would in different ways be of use to persons in different situations,—to persons in the situation of subjects, and to persons in such situations as bestow upon them a share in the process of legislation:—
(1.) To the subject citizen it would be an advertisement informing him of the fixity that has by competent authority already been given to the word or combination of words in question.
(2.) To the legislator, by conveying to him the same information, it would be a memento and a warning not to loosen and set afloat the import of that same appellative by any fresh and different sense superadded to its precedent original sense, and without due warning of the difference.
2. Where a number of objects present themselves, so connected in such sort as that there is frequent occasion to comprehend them under one and the same provision,—in such case, to avoid the need of continual repetition, with the danger of incomplete repetition, find or frame, if any fit term can be framed, some term of more extensive import, capable of being applied in the character of a common genus, with relation to which they shall be so many species, so many congeners, or congenerical species. This done, employ thenceforward the one generic term, in lieu of the series or string composed of many specific ones.
Thus, in the act before referred to, 45 Geo. III. cap. 72, after some advance made in the act, the word captors comes to be employed. But, for distinguishing the genus or class of persons in question, and meant to be brought to view by and under that name, neither that nor any other generic appellative is employed in the first instance. Instead of that comes a list of congenerical terms, which list, being in different places different, is in some places incomplete.
In the same act occurs, in different places, mention of allowances of money made to persons of the description in question on various accounts, which allowances are in different places characterized by the denominations of prize-money, bounty-money, salvage-money, and seizure-money. Encouragement in the line of military service being the object declared to be aimed at on the occasion of each of these several allowances, encouragement-money is a term capable of being applied to all of them in the character of a generic term,—applied to all of them put together, with no less propriety than their respective abovementioned specific appellatives are in the instance of each.
Accordingly, Nomen genericum cum specificis, semel: Genus per se, toties quoties.
3. In the case where, for the designation of the object in question, there exists an authentic appellative, but that appeilative is many-worded and longwinded,—if a popular appellative can either be found or made for it, provide such concise appellative accordingly;—thereupon, having for the sake of certainty expounded it once for all by its authentic synonym, thenceforward for conciseness sake employ it.
Rule: Nomen vulgare, cum synonymo authentico, semel; idem per se, toties quoties.
Thus, in the act before referred to, 45 Geo. III. cap. 72, in some places the establishment commonly called Greenwich Hospital is designated by a longwinded and more formal name,—the Royal Hospital at Greenwich, &c. But in other places it is designated by a still more longwinded denomination, which has the appearance of being the name by which the governing body is designated in the charter of incorporation, viz. “the Governors and Directors of the Royal Hospital at Greenwich,” &c.
Greenwich Hospital: this name, as often as it occurs, might be understood as denoting the governors, or the establishment of which they are governors. By an intimation of which of these was intended, certainty would to the utmost be provided for, and the embarrassment in which a sentence is involved by a compound and longwinded appellative be avoided. And so in the case of Chelsea Hospital.
In like manner, by preliminary note, “Greenwich Treasurer,” and “Chelsea Treasurer,” are so many short names that may with advantage be substituted to the formal and more compound denomination appertaining respectively to those two official persons.
4. In some cases, the same office is liable to be filled at different times in different manners: for example, at one time by a single person, at other times by an assemblage of persons, as “Lord High Treasurer,” “Commissioners of the Treasury,” “Lord High Admiral,” “Commissioners of the Admiralty;” at one time by an officer called by one name, at another time by an officer called by another, as “Treasurer of the Navy,” “Paymaster of the Navy.”
In this case, instead of employing on each occasion both or all of these official names, take in the first instance the most simple, and having for certainty subjoined to it whatsoever synonymous or equivalent expressions are in use, for conciseness employ thenceforward the most simple—except it be in such places, if any such there be, in which, by the nature of the occasion or the composition of the context, this or that synonym is rendered more proper or more convenient.
Examples: 1. To Treasury, subjoin Treasury Board, Lord High Treasurer, Lords Commissioners of the Treasury, and so forth: and thenceforward, except as excepted, employ the single-worded appellative Treasury.
2. To Admiralty, subjoin Admiralty Board, and so forth: and thenceforward, except as excepted, employ the single-worded appellative Admiralty. But in this particular case, the word Board may sometimes be necessary to be subjoined; viz. for the purpose of distinguishing this the office of administration so denominated, from the judicatory styled the High Court of Admiralty.
5. It will sometimes happen that an appellative originally employed to designate a class of objects of a certain extent, and exactly fitted to that class, shall have been employed to designate that same class with the addition of another class, to the designation of which other class it is not with equal propriety adapted;—in which case, to save the imposition of a new and unaccustomed name, there may be a convenience in employing for the designation of this new enlarged class, the name which, though before the enlargement strictly proper, is since the enlargement become no longer so.
Rule: The import of an appellative may be ampliated—may be extended by ampliation, giving proper notice.
So again in regard to restriction.
Rule: The import of an appellative may be restricted—narrowed by restriction, giving proper notice.
In the index, after any definition or other exposition which in any other shape has been given of the appellative, add the number of all such ampliations or restrictions, if any, as it has received, making mention of the occasions on which, and referring to the titles under which, those respective operations have been performed.
Example of ampliation: Prize agent—extended to comprehend bounty-money agent, and to salvage and seizure-money agents.
Rules having for their subject the directive*clause, or words of direction in the composition of a statute—and for their object or end in view, the prevention of ambiguity, obscurity, and overbulkiness, by prevention of unsteadiness and redundancies:—
Rule 1.—Command includes permission. To mean to command any act to be done, and not to mean to permit it to be done, is impossible; wheresoever, therefore, there are words intimative of a command to do anything, words intimative of a permission to do the same thing are superfluous and nugatory.
To the evil of redundancy, is apt in this case to be added that of unsteadiness in respect of the useless variety in which this species of imperfection is apt to exhibit itself.
Rule 2.—Where an act is already lawful, no matter of the permissive cast—no words having the effect of a permission, ought to be inserted: for of matter of this cast, the effect is by implication to convey an intimation, that by the law as it stood before the statute with this permission in it was enacted, the act in question stood prohibited;—which by the supposition is not true.
It is a mark of deplorable awkwardness and imbecility on the part of a legislator when he knows not how to make a law of his own, without giving a false and deceptious account of such laws as before his time have already been made by others.
The following masses of literary matter have on this occasion been marked out for omission on the score of surplusage in the act 45 Geo. III. c. 72.
1. Formularies of enactment, all but one; saving upon the 123 sections, 122 out of the 123.
2. The words “provided always.”
3. All non obstante clauses: ex. gr. section 29, “any law, custom, or usage to the contrary thereto, in any wise notwithstanding.”
4. After his Majesty, “his heirs and successors.”
5. After the word shall, the word may, when applied to the same person.
6. After the word required, the word authorized.
7. After the word shall, both authorized and required.
8. Before the word required, both empowered and directed.
9. After every person, all persons.
10. After any person, or persons.*
11. After the word forfeit, the words for every such offence.
12. After the numerical title of a statute, the verbal title.†
13. For, it shall and may be lawful, and, it shall be lawful to and for,—substitute may, making the requisite change in the circumjacent words.
14. Whereas doubtshave arisen;—inserted frequently when the imperfection calling for correction was too manifest ever to have left room for doubt.
15. Whereas it is expedient to enact, &c. as if a persuasion of such expediency on the part of the legislator were not necessarily implied in the operation of enactment. This is one of the many instances of nugation.
16. After shall not do so and so, for example, extend nor be deemed or construed to extend.
To the head of errata may be referred all those peculiarities in the phraseology customarily observed in an act of parliament, whereby the language thus put into the mouth of the legislator is distinguished from that employed by everybody else.
Of these vices the actual fruit is oppression and pillage: what in each instance was in the mind of the draughtsman the intended result, and to the attainment of which his exertions were directed, is a question of psychology never worth resolving, and in general incapable of being resolved.
It would be a great error to suppose that this excrementitious matter is simply useless. The pretended object, and the only object that for the purpose of apology can be assigned to it, is certainty. But of certainty it never is productive—it is, on the contrary, an abundant source of uncertainty.
If on every occasion redundantly copious and wordy forms were employed, yes: then voluminousness on the part of the composition—useless vexation and expense on the part of him whose fate is disposed of by it, would be the only evil. But promiscuously and interconvertibly with this most voluminous formulary, on occasions exactly corresponding, are employed other formularies less and less voluminous. Of the most voluminous what is then the effect? To breed doubts concerning the import or the validity of this or that other formulary which in this or that particular is less voluminous.
In the view, and for the purpose of causing to be made known to divers persons—in divers manners—divers sets of facts, to the end that these persons, objects of his care, may be secured in the receipt of what is respectively their due, great, and assuredly by no means unsuccessful, are the pains which by a correspondently voluminous and various mass of regulations have been taken by the right honourable legislator in the last-recited act.
In the chain of information, amidst and after all this care, one link was left wanting; and that was a means of conveying to their knowledge, and into their hands, in a concise, compact, and, in a word, in a comprehensible and intelligible form, adapted to the state and degree of such intellectual powers as they might on reasonable grounds be expected and presumed to be in possession of, an intimation of what had there been done for them, and what on their parts was necessary to be known and to be done, in order to their reaping the benefit of all this care.
In the elaborate chain in question, this link, I say, is wanting. And why is it wanting?—to what cause is so material a deficiency to be ascribed?
The answer is incontrovertible:—To the sinister interest of the profession of the law.
In this as in every other quarter of the field of legislation, it ever has been, and still continues to be their interest, that the rule of action should be as little known and as ill known as possible—that the conception formed of it may be as imperfect, confused, and erroneous as possible.
On this account it is, that on the part of those masses of discourse which have been occupied in giving expression to it, it has been their interest to nurse and cultivate to the highest degree of perfection those vices, the exemplification of which has on this occasion been in some degree brought to view.
Remedies for Longwindedness.
In the consolidation Prize Act, 45 Geo. III. c. 72, before referred to, an example may be found of longwindedness:—in five contiguous sections, Nos. 43, 44, 45, 46, and 47, and in one other, No. 108, which occurs at sixty sections distance, the general course of procedure in the high court of admiralty and the vice-admiralty courts, in the metropolitan and provincial prize courts, is prescribed.
Of these sections, the first, which is much more than equal to all the other five put together, was evidently, in the date of its formation, antecedent to most if not all the others.
In it the following are among the operations prescribed or brought to view, or spoken of as liable to have place:—
1. The preparatory examination—viz. the usual one; and by this one word usual, the certainty belonging to written law is drowned in the uncertainty inherent in the essence of unwritten law.
2. Monition, again the usual—and this usual monition must be the proper one; 3. Moreover it must be issued by the proper person, be he who he may; and 4. by another proper person executed; 5. but not till after request; 6. Claim; 7. Entry thereof in the usual form; 8. Attestation thereof on oath; 9. Giving of notice after the execution of such monition; 10. Security, giving thereof by the claimant for eventual costs, 11. Production of said preparatory examination; 12. Production of documentary evidence; 13. Eventual oath of non-existence of documentary evidence; 14. Sentence eventual of discharge or condemnation; 15. Giving further time for entering claim; 16. Giving further time for finding security, for something or other, if one could but tell for what; 17. Sentence, giving it once more; 18. Eventual examination of witnesses; 19. Giving in pleadings by the parties; 20. Admission thereof by the judge.
In this list we have twenty operations, but they are not above half the number of operations brought upon the carpet, neither will there be found in this enumeration above half the matter, including a quantity of surplusage, with the quantity of obscurity and ambiguity thereby generated, and thereunto appertaining, contained in this section.
It is an attempt to force together the contents of an entire system of procedure into one sentence. With as much reason, and with similar utility, might the whole of Coke-Littleton have been squeezed into one sentence, or the whole of a Serjeant’s-Inn dinner have been mashed up together into one dish.
Supposing a man either unable or unwilling to make himself understood, but at the same time under an obligation of appearing desirous of making himself understood,—this is one of the ways he would take for effecting his purpose, and a more effectually conducive way it is not in the power of man to take.
The remedy for this longwindedness is to be found in breaking down such complicated enactments into separate parts; but in so doing, it will be found that the length of the whole composition will be increased—the brevity of the parts, and of the whole, antagonize. Perspicuity will, however, be gained by lessening the excess of the grammatical sentence over the logical proposition.
For putting into a rational and intelligible shape the contents of this single section, twenty sections would scarcely suffice, and each would require its full complement of words.
With respect to the structure and length of sentences, the following proposition and rule may be laid down:—
Proposition: The shorter the sentence the better.
Rule: Minimize the length of sentences.
Reasons:—1. The shorter the sentence, the clearer is it to the eyes of the reader:—the clearer, that is to say, the more free from obscurity—the more easily apprehended by the conception—the more easily retained in the memory. 2. The shorter the sentence, the clearer is it in the eyes of the legislator and the judge. For the purpose of eventual supervision and amendment, much clearer will it be to the eyes of the legislator, for the purpose of interpretation to those of the judge.
To be perfectly clear to the conception, the judgment, and the memory, every distinguishable proposition must be presented by itself, unconnected with every other. Exceptions excepted, objects more than one cannot be closely examined at one and the same moment. Exception is, when two objects are to be confronted and compared with one another: in that case, the mind vibrates from the one to the other with the rapidity of thought; and as in musical sounds, before the impression produced in the sensorium by the first has ceased, that produced by the second is commenced.
By the clearness and simplicity thus contended for, no bar is opposed to comprehensiveness; on the contrary, the more comprehensive the sentence or proposition is, the shorter it may be. Whatsoever be the extent to narrow it, addition to the number of words contained in it is necessary.
True it is, the shorter the several sentences, the longer will and must be the aggregate composed of them. Take any sentence or proposition whatsoever,—by the insertion of a single word in it, the effect of another sentence may be produced. Why? Because to compose a sentence, requires the conjunction of divers of the parts of speech; and when once expression has been given to a complete sentence, every word added to it receives as it were the benefit of all the several words which it finds entering into the composition of the sentence to which it is added.
But to the difficulty in respect of conception, judgment, and reminiscence with relation to the whole, no addition is made by the addition made in this way to the voluminousness of it. By an index, the eye is as promptly conveyed to the passage wanted in the largest folio, as in the smallest duodecimo. Just so is it in the case of a dictionary. If by the lettering at the back you are informed, without need of opening and searching the several volumes, in which volume the word, the explanation of which you stand in need of is contained—a dictionary of twenty volumes is not more difficult to consult, than a dictionary of one would be.
When the objects, whatsoever be their multitude, are presented to the mind one by one, the mind finds itself in a state of comparative repose;—there is nothing to hurry it in its course;—for any length of time it gives its undivided attention to each one. When, in the course of a lengthy paragraph or section in an act of parliament, objects, propositions, are presented to view by dozens, scores, or hundreds, it is hurried off by each from every other:—amongst them it finds no rest—it is in a state of bewilderment;—in relation to no one of them can it obtain any clear conception, form any clear judgment, retain any clear reminiscence.
The following rules will further tend to prevent the evil of longwindedness:—
1. Avoid repetitions from habit of useless formulas; as in English practice.
2. Repeat not self-evident propositions:—Ex. “Whereas it is expedient,” &c.
3. Lists of species, once given, form a generic term, which afterwards substitute.
4. Exceptions excepted, let the masculine singular comprehend both genders and numbers.
5. Denominate, enumerate, and tabulate principles. It facilitates reference, and thereby contributes to conciseness.
6. Employ abbreviative words: any such word, explained once for all, if need be by definition, performs in legal language the functions of x and y in algebra. Examples: Maximize, minimize, demoralize, disintellectualize, eulogistic, dyslogistic, and the names of functions.
7. After the verb governing, interpose between it and the list of substantives governed, the words “as follows,” with a punctum;—then give to each item a separate line, preceded by a numerical figure.
Helps to Intellection.
Of making Divisions.
Among the devices employed by the legal tribe for the preservation and increase of uncertainty, and voluminousness, and uncognoscibility,—one is the forbearing to employ division and numeration, on the occasion and for the purpose of reference. Break a law down into parts, and affix a different number to each part,—whatsoever be the part you have occasion to speak of, naming the number by which it is distinguished accomplishes the purpose with the utmost brevity, and at the same time without danger of mistake. To this obvious and most universally practised mode, substitute, as is done in English statute law, an attempt to describe the part in question by words expressive of the subject-matter, or the purport of it,—you send a man on each occasion to hunt over the whole statute for whatever he is in quest of, after which it remains matter of doubt with him, what are the parts that in case of litigation would be understood to be comprised under the necessarily loose description so employed.
The more numerous the statutes thus referred to, and the more voluminous the bulk of each statute, the greater is the uncertainty and the vexation—the greater the unnecessary consumption of time and labour in hunting over them—and the greater the probability that, of all this consumption of time and labour, nothing better than ultimate and irremediable uncertainty may be the fruit.
In the case of the statute 45 Geo. III. c. 72, there are no fewer than fifty of the small and closely printed pages of which the authentic edition of the statutes is composed.
In this statute, in the paragraph marked VIII., it is enacted, “That all regulations herein contained respecting prizes, shall apply to all cases of bounty-money granted by this act, and of salvage upon recaptures from his Majesty’s enemies.” Would you know what those regulations are? Here, instead of a few figures, are no fewer than fifty of these folio pages to pore over, and in these fifty pages, no fewer than 123 sections.*
The choice of the mode of remedying this evil, is not by any means a matter of indifference. Perspicuity and brevity are in no considerable a degree dependent upon it.
The objects which it is desirable should be kept in view in making such division are—1. Facility of reference; 2. Facility of amendment:—of reference by the individual reader, whatsoever may be his place in the community;—of amendment by the legislator.
The more numerous the successive acts of division and subdivision, the more numerous will be the general denominations of those aggregates which are respectively the results, and the more numerous those denominations, the more instructive will be the table of contents formed by the printing on the same surface, and thus presenting to the eye at the same time the aggregate number of them. The more numerous the points of agreement and difference between the several objects, the better will the subject be understood; since it is no otherwise than by means of these points of agreement and difference between its elementary parts, that a subject of this sort is understood.
The process of subdivision cannot be carried too far for use;—for let it be ever so dilated, nothing can be easier than to contract it:—for effecting the contraction, nothing but simple elimination is necessary.
The further it is carried—the narrower and more particular the mass of objects characterized by the denomination given to the aggregate,—the more particular, the nearer it is to individuality—the clearer and more complete is the conception which, to the understanding of the person in question, it will present.
Bonaparte, in his Code, has perhaps gone further in this track than any other legislator; but for understanding the more clearly what in this way has been done by him, it will be of use to wait till an explanation has been given under the next head.
Of Denominating the Results.
On the occasion of each glance there may be a convenience in seeing instantaneously, by means of the several denominations, to what degree the process of subdvision is advanced. For accomplishing this object, the numeration table affords an expedient, and it is the only one.
Rule: Indicate, by a numerical figure, the number of divisional operations by which the result in question is produced—the figure in a broad type struck through by a thin S.
Rule: To divisional denominations substitute the numerical only. The following names are already in use for the denomination of the results of such operations:—section, bisection, trisection, quadrisection, and so on. For the result of the last divisional operation, the word article may be employed, as being now in use.
Rule: When lists require to be given in an article, give each item a numerical denomination, and refer to them by such denomination.
The more numerous the acts of division, the greater the mass of literary matter necessary to the giving expression to the results. Suppose it to have extended to a certain length, so numerous will be the words, that if given at length, a whole line or more may be necessary in one part for referring the reader to this or that single word or matter. Hence comes the practice of substituting to the word at length the first syllable, or the first two or three letters of it. The syllable has the advantage of being capable of being pronounced,—the letters, if they do not form a syllable, fail of putting a reader in possession of this advantage.
§, 2 §, 3 §, 4 §. By this mode of reference, all, it is believed, will be done towards accomplishing the purpose, that the nature of things will allow to be done.
We are now prepared to recur to the consideration of Bonaparte’s codes. The number of the codes is five, besides the code of costs for the judicatory called the Cour Royale de Paris. Of the results of the several acts of division in these codes, the denominations are as follows, in the following order:—1. Livre; 2. Titre; 3. Chapitre; 4. Section;—then comes the unit to which in the text no denomination is given, but which in the references is denominated, 5. Article, or for shortness, Art.
Article is the denomination of the result of the last act of division which has a name; but in some instances, within the article are found divers parts or clauses not denominated, but distinguished from one another by numbers;—and thus also in the Code Pénal, beginning with Art. 402, the article is divided into other parts, to which no denomination is given in words at length, but prefixed to each division is the character usually employed in lieu of the word section, namely, the double S—§.
Applying the last proposed mode of denomination to the results of the several acts of division in this code, the denominations assigned to the several acts of division by the numeration table would be, instead of livre, section, §; instead of titre, bisection, 2 §; instead of chapitre, trisection, 3 §; instead of section, quadrisection, 4 §; instead of article, quinquisection, 5 §.
Instead of any such principle of division being followed in these codes, in each code the articles follow one another in a series, which commences from the first. The numbers of the articles in each code are as follows:—
In each code, only from the first article in the whole code are the ensuing articles numbered:—no fresh series is commenced in any of the subdivisions.
Such is the method, and now for the inconvenience of it.
In a new edition of any of these codes, between the first and second of the articles suppose matter meant to be inserted, and inserted accordingly; and in consequence the several other articles, 2280 in number, the numbers all changed: what would be the consequence? That of all the several references made in the new edition, not one would serve for any preceding edition; so that these editions, whatsoever were their number, would be rendered all of them nearly unfit for use:—nor can any limits be assigned to the practical mischief capable of being produced by the false reference if taken for true.
Of the employment of the substantive-preferring principle.
By the substantive-preferring principle understand that which recommends the employing, in works of the didactic kind, as far as may be, a substantive in preference to the corresponding verb—a substantive, or what comes to nearly the same thing, an adjective with the substantive principle attached to it.
On many occasions a verb of peculiar import, with or without the addition of tense or mood, or both, or a correspondent noun of the same root, accompanied with what may be called a word of common or subservient use, may be indiscriminately employed;—thus we may either say, to give extension to, or to extend—to give denomination to, or to denominate—to straighten, or to make straight,—or give straightness to.
In these cases there is an advantage in employing the noun instead of the verb. Be it the name of what it may—a real entity or a fictitious entity, the noun will in every case be a denomination of something: that something, be it what it may, will on this or that occasion be an object or subject-matter of consideration, and attention, and examination. For this purpose it may be necessary, that by the mind, for a more or less considerable portion of time, it should be kept in view; in the form of a noun—to wit, a noun substantive, it may be kept constantly in view for any length of time that can be required.
Whilst thus in view, it is capable of being taken for the subject of what the logicians call predication:—any quality may be spoken of as existing in it, as belonging to it. Example: extension, fixidity, velocity, beauty, deformity.
In this state, any quality at pleasure, and at leisure, may be spoken of as existing in it, as being given to it or taken from it. In a word, it may be kept in contemplation, may be made an object of study; and if the nature of it be to admit of such an operation, of examination for any length of time.
Not so when the idea is presented in the form of a verb. In this case it is mixed up with other words in the form of a sentence or proposition, more or less complex. The import of it is in such sort covered, disguised, and drowned, that no separate nor continued view can be taken of it. Where a substantive is employed, the idea is stationed as it were upon a rock:—where no substantive is employed, but only a verb, the idea is as it were a twig or a leaf floating on a stream, and hurried down out of view along with it. When you have said, “I will give extension or elevation to an object in question,” I can take up the quality of extension or that of elevation, and give to them respectively whatever consideration and examination the nature of the case admits of, and appears to require: but if what you have said be, “I will extend the object,” there is no extension, no elevation, nothing I can take up or lay hold of.
As a companion to the noun, for the purpose of rendering it a fit substitute for the verb which the purpose of the sentence requires, a particular species of verb has been mentioned: it may be termed an auxiliary verb, by analogy to those fragments of verbs—will, shall, may, can, might, could, would, should,—that are in use to be employed for the like purpose. On the present occasion, the verb to give has been mentioned as one that is in use to be employed for the present purpose. It may be employed as auxiliary, for example, to any substantive expressive of any species of quality, as expressed by the terminations ite, ants, and others of like import.
The employment given to it will not however appear natural, unless the quality present itself as being either desirable, or at any rate an object of indifference. It is natural to speak of giving elevation to an object, or extension—it is not equally so to speak of giving depression to it, or limitation. In this case, you would rather employ the verb to apply, than the verb to give.
A catalogue of this species of auxiliary verbs, accompanied with a catalogue of the nouns substantive to which they are in use to be employed as auxiliaries, is an instrument of elucidation that remains to be constructed, and by its usefulness may perhaps be found to pay for the trouble.
A use somewhat similar may be made of the term function.* Each proposition in which it is employed, is the equivalent of a multitude of propositions of unknown length and ever variable and varying tenor, any one of which might have been employed to the same purpose; but which, if employed, would have exhibited no feature of determinate and apprehensible resemblance one to another.
Of this word it will be seen elsewhere† how useful it is as an instrument of useful arrangement;—to no such use would its equivalents in the verbal form be found applicable. The desirable properties which these forms of expression contribute to discourse are—1. Clearness; 2. Conciseness; 3. Recollectedness—i. e. giving facility to the recollection of the idea designed to be conveyed. These forms of expression are subservient to distinctness, by placing in the clearest light the points of difference and separatedness, as well as the points of resemblance and coincidence between each object and every other.
The way in which the use of the word principle, with the appropriate adjective, is conducive to conciseness, is by substituting those two words to the correspondent rule or rules that may be laid down in explanation of the principle so denominated.
When once explained, these two words serve for the giving expression to one sentence or more. Not less subservient to the purpose of retention is this formula than to the purpose of conception, and expressive for the purpose of communication. You cannot anchor in your mind a sentence, as you can a single term.
The contribution thus made to conciseness is analogous to that made by algebra: i. e. the algebraical mode of expression, on the occasion of those discourses which have for their subject-matter quantity as expressed by number, abstraction made of figure.
Remedies for Miscollocation.
For the prevention of miscollocation, little can be done besides noticing such faults as have been observed, that they may serve as beacons for the avoidance of the like faults in future.
The following are among the cases of miscollocation which have been observed:—
Between a pronoun-relative and its antecedent, interposition of another word capable of bearing also the relation of an antecedent.
Placing a negative adverb in contiguity with a subject-matter other than that to which it is intended to be applied.
Placing a modificative clause so as to be applicable to an unintended principal.
Placing a pronoun-adjective-relative without a preceding substantive: the substantive being left to be imagined and allotted by the reader. Example: This is only, &c., when there is no preceding substantive with which this can combine. Evil resulting,—obscurity, the subject of predication being wanting.
Not presenting to the eye in writing, and to the ear in speaking,‡ in the first place the principal object or subject-matter of the proposition.
Rule: Whatever be the principal object which your sentence is designed to bring to view, bring forward, as early as you conveniently can, the word employed in the expression of it:—if you can make the sentence begin with that same word, so much the better.
If a word expressive of another idea come before it, the mind is in the first instance put upon a wrong scent; and a sort of correction and partial change of conception must have place, before the idea meant to be conveyed is apprehended.
By the first-mentioned mode of collocation, the idea of spiritedness in the discourse is suggested, and the reader, if not set against it by usage, is better satisfied; the idea meant to be conveyed being apprehended on the instant, and without further trouble. In the other case, the idea of insipidity and heaviness in the discourse presents itself: unable for sometime to conceive what it is that is meant to be conveyed to him, the reader finds himself under the necessity of crawling on, and poring on, in quest of it; and till he have arrived at it, either proceeding on a wrong ground in the course of his reflections, or continuing in a state of uncertainty and perplexity.
Rule: Sub-articles excepted, include not in one article two sentences so unconnected as to be understood one without the other.
Reasons: For the reader might consider the two as one proposition, and reference cannot be made to one without the other.
Rule: In a principal proposition, imbed not exceptive or otherwise modicative clauses more than one.
Rule: Of exceptions give notice at the commencement of an article; for this purpose, the formula exceptions excepted may be used.
Reasons: 1. It secures to the general proposition, whatsoever it may be, the most concise and clearly apprehensible expression which the nature of the case admits of.
2. Being placed at the very commencement of the sentence, it gives a sort of warning which has the effect of anticipating and keeping the door of the mind shut against all those false conceptions, which in the first instance, and for the time, would be among the effect of the proposition, if presented in the first instance, in a degree of extent which was not intended, and which as the sentence advanced would receive contradiction. In the way here proposed, the erroneous conceptions in question are from the first excluded:—in the way ordinarily pursued, they are, in the first place, let in altogether; and then, one after another, ejected.
3. In this way the door is left open, a door of the most simple form, at which in any number successive amendments may be let in: and this without any disturbance offered to any other part of the ordinance. For the purpose of judging of its completeness—judging whether an article to this or that effect might not with advantage be added to it, the list of these exceptions, in conjunction with the general proposition out of which they are taken, may at any time and at all times be surveyed at leisure.
The following mementoes will further tend to secure a good collocation:—
Let the grammatical form of sentences in which statements are conceived be as simple as possible.
Avoid the hypothetical form in the operation of statement;—especially the complex hypothetical form, in which several suppositions are strung together, before the proposition makes its appearance.
Where hypothetical propositions occur, break them down into categorical ones: the following are forms for doing this:—
1. Before the proposition prefix the several suppositions, each by itself, under the head of suppositions. This is where the enumeration of the suppositions precedes the statement of the proposition.
2. Where the proposition comes first, then subjoin the suppositions, with the word case before them; as thus, Case 1, Case 2, &c.—N.B. In this latter mode of statement, the suppositions are put disjunctively,—in the former, conjunctively.
Of Technical Language.
The maximum of notoriety being the object, not only the matter but the form—not only the arrangements themselves, but the language employed in giving expression to them, will, if that object have been attained, have been such as is conducive to it. Considered in this point of view, language used in law is of two sorts—1. Natural; 2. Technical.
The word technical—the appellative by which the denominations employed in designating the names of instruments and operations in the language of English jurisprudence are commonly designated, tends to convey an erroneous conception, pregnant with an error from which there may be a use in keeping the mind upon its guard. It presents an ambiguity, under favour of which the mischievousness of the object will, till it has been exposed to view, in the minds of most, if not all readers, be but too likely to be screened from notice. Not only are the denominations in question liable to be productive of evil, but the evil they are actually productive of is so great as to be beyond calculation.
Of the non-notoriety of the law, the mischievous effects are all-comprehensive; for by it, and in proportion to the extent of it, the law is prevented from being productive of the good effects it is calculated to produce: it is prevented from hindering the bad effects which would not have had existence, had the law been known. The individual who, had he known of the existence, and formed a correct opinion of the purport of the law, would have availed himself of it, if it were a law that gave him a right—or would have abstained from the act, if it were a law by which the performance of such act is prohibited,—loses his right in the one case, and incurs the penalty of the law in the other case.
Now, for every person but the few to whom the import of these denominations styled technical, is made known by a more or less long course of attention, observation, and experience, the existence as well as the tenor of the instrument in question, is by means of this technical language, as it is called, but too effectively and generally concealed.
How then, it may be asked, how is it that the mischievousness of this class of denominations is concealed from ordinary eyes by means of this appellative? Answer—In this way: by confounding this class of words, which belongs exclusively not only to jurisprudence, but in a more especial manner to English jurisprudence, with the corresponding words belonging to other branches of art and science—words from the use of which no effects but what are purely beneficial are produced,—a veil is thrown over the mischief produced by this legal class, and an imputation applicable with exclusive propriety to the words of this noxious class is but too apt to extend itself to the words belonging to those unnoxious and purely useful ones.
The case is, that in the language of every branch of art and science that can be named, a more or less extensive stock of words of a peculiar nature, in addition to all the words in familiar use, is an indispensable appendage: applied to these, what the appellation technical imports is nothing more than peculiar, as above, to some branch of art and science; to wit, in contradistinction to those which, being likewise employed in discourse relative to that same branch of art and science, have nothing to distinguish them from the words in universal use belonging to the common stock of the language;—or the import of them, from the import attributed to those same ordinary words. But the difference between these jurisprudential peculiar words, and the other peculiar words, is this: in the case of the other peculiar words, the deviation from ordinary words is matter of absolute necessity, and on the occasion of framing them the whole attention and skill possessed by the framers was commonly employed in the rendering them as expressive as possible; whereas in the other case, the deviation from ordinary language being as wide commonly as can be imagined,—no attention has been paid to render it expressive, by rendering it as near akin as possible to the words appertaining to that same common stock:—to that end no attention whatsoever was employed, the attention, if any, applied to the subject, having the direct opposite end, viz. that of rendering them as inexpressive as possible, as unlikely as possible to convey correct conception;—the only purposes to which they are applicable or designed to be applied, are either conveying to the persons in question no conception at all, or if any, such as shall have the effect of leading them into error, either productive of burden to the persons thus deceived, or benefit to the deceivers.
Terms of art, jurisprudence must have as well as every other branch of art and science. But in English practice, the terms of art are to what they ought to be, what the terms of astrology are to the terms of astronomy.
In a word, in the case of every other branch of art and science, with few exceptions, and those not belonging to the present purpose, to the words which are peculiar to it, as being known to those individuals alone who are more or less conversant with the matter of it, the appellative technical, which in the original Greek signifies neither more nor less than appertaining to art or science, may, not only with indisputable propriety, but without leading into error, be applied, were it not for the danger of inculcating the conception that these words partake of the noxious quality which belongs to those technical words which are peculiar to jurisprudence—words from which they are essentially different, as well in respect of the effects actually produced, the effects intended to be produced, and the motives by the operation of which the intention was produced: in their effect as expressive as they could possibly be made, and the explanation of them by means of an equivalent expression taken from the body of the language made as extensively notorious as it can be made, and so intended to be;—the motive to which they are indebted for their existence being a desire to render the matter of the art or science to which they belong as extensively known as possible,—and this on account of the honour, or profit, or both, expected in return for the benefit so conferred.
Opposite in all these several particulars is the case of jurisprudential technical terms:—actual effects, everywhere relative ignorance, or what is worse than ignorance, error. Intended effects the same:—desire by which, in the character of motive, the endeavour was produced, the profit looked for, and but too copiously derived, from the ignorance and error so produced, and the reputation for wisdom which by this artifice the people have been led to ascribe to the inventors of this system, and the benevolence which they have at the same time been led to regard that same wisdom as having for its accompaniment. In a word, of the peculiar language in the case of physical science, the words are expressive, and so intended to be:—in the case of jurisprudential science, the words are either simply inexpressive, thus securing the continuance of ignorance, or what is worse, viz. for the people, but proportionably better for the inventors, productive of error, the effects of which, in so far as they have place, are mischievous.
Of the importance of improvement in Legal Language.
We have already seen that the technical terms of jurisprudence are either inexpressive, or calculated to produce error: the necessity of improvement cannot therefore be denied, except by those who are blinded to its importance by interest, or interest-begotten prejudice.
Proportioned to the uncertainty attaching to the import of the words employed upon legal subjects, will be the uncertainty of possession and expectation in regard to property in every shape, and also the deficiency of political security against evil in every shape: proportioned, therefore, to the fixity given to the import of those same words, will be the degree of security for good in every shape, and against evil in every shape. Until, therefore, the nomenclature and language of law shall be improved, the great end of good government cannot be fully attained.
In medical art and science, improvement is rapid and extensive at all times and in all places: in legislation and jurisprudence, everything is either retrograde, or at best stationary.
The cause is no secret. In medicine it is the interest of every practitioner to promote improvement, and to promote it to the utmost, to make whatsoever addition to the stock his faculties admit of his making:—of no judicial practitioner is this the interest—his interest is directly opposite.
In medicine, not only the nosology of the subject is constantly receiving augmentation, but also the terminology:—in legislation and jurisprudence, everything, to make the best of it, is at a stand.
But he who will not be at the pains of making, nor so much as of adopting, new expressions, must go on with the old ones alone, and consequently with all the errors which, being associated with, are established by the old ones.
And, as amongst other things, all political abuses are thus established and kept on foot and in estimation by these old ones—by that part of the language which has been employed in the establishment of these same abuses; hence, on the part of persons so circumstanced, the horror of innovation in language forms a natural accompaniment to the horror of innovation in law: and hence, on the other hand, all persons desirous of the improvement of legal institutions must also be desirous of the improvement of legal language.
In so far as correct notions are substituted to incorrect ones, denominations in some respects new must of necessity be employed: denominations by which none but incorrect notions have ever been designated and suggested, never can, without alteration, be made to serve for the designation and conveyance of correct ones.
Language has, in the art of healing as applied to the body natural, advantageously received the form of a branch of art and science: it is high time, that by the like operation it should be, as applied to the disorders of the body politic, raised to that same elevation in the scale of dignity.
By an elevation in the scale of art and science, understand anything rather than elevation in the scale of difficulty. Not to maximize difficulty, but to minimize that obstacle to usefulness and human felicity, is the object with every true lover of art and science. But without novelty in language, neither in this nor in any other portion of the field does the nature of things admit of any such elevation, or of any considerable addition to the stock of matter thus elevated; and without closeness and continuity of attention in some proportion to the novelty, it is not possible that anything which is taught—anything, however well taught, as well as deserving to be taught, and held in everlasting remembrance, should be learned.
No new propositions, howsoever useful, can receive expression unless it be by new words, or new application of already established ones;—i. e. by using them on occasions on which they had not been at all, or had not been commonly employed.
Hence a sort of postulate necessary to be put forward in legislative art and science, in imitation, for the first time, of the practice in the posological branch of physical art and science.
Postulate: That all new words and phrases necessary to the substitution of truth to error—of clearness to obscurity or ambiguity—conciseness to verbosity,—be coined, uttered, and received.
Let the mint of the greatest happiness—the mint of reason and utility, be the mint in which they are coined.
What I am far from saying is, that all who are found to start and urge these objections are enemies to human happiness and improvement; but what I do say is, that all who are enemies to human happiness and improvement will be found to start and urge them.
In so far as the conceptions hitherto entertained are inadequate or erroneous, necessary to the communication of correct and adequate ones is a correspondently appropriate and adequate, and therefore unavoidably a novel system of vocabulary.
To the words of which such vocabulary is composed, one condition is at once requisite and sufficient. This is, that without incorrectness, ambiguity, or obscurity, they carry to the conceptive faculty of the reader the idea meant to be conveyed, either at the first mention, antecedently to all definition, or other exposition, or at any rate, after such exposition has been heard or read.
For this purpose it will, generally speaking, be sufficient if, in the case of each word, other words derived from the same root are familiar to the reader in question—familiar, and at the same time expressive of clear conceptions, or if for the explanation other words in a sufficient degree synonymous to them are subjoined.
In what degree, for correct conception, or even for the possibility of obtaining any conception at all of the object in question, men are indebted to aptitude of nomenclature, persons in general are very little aware.
Throughout the whole field of that branch of the mathematics in which forms are put out of consideration, what is therein done, is done altogether by nomenclature—by abridgment given to the signs by which the idea is expressed. Thus, in common arithmetic, by means of the Arabic names of numbers, operations are performed, which, by words at length, without that instrument of abbreviation, could scarcely have been performed; whilst by those instruments of ulterior abbreviation which are afforded by algebra alone, operations are performed which could never have otherwise been performed—results obtained which could never have otherwise been obtained.
True it is, that of all these operations there is not one to the expression of which words and phrases at length are not completely adequate; but in many an instance, such is the quantity of literary matter that would be accumulated, that ere the result could be realized, confusion would ensue, the mind would be bewildered, and conception lost.
In branches of art and science comparatively frivolous, and for the accommodation of those who amuse themselves in the cultivation of these branches,—in a word, in the several branches of natural history,—no scruple is made, not only of introducing new denominations, but of composing a vast nomenclature altogether of such new denominations—fruits of the innovation principle.
For the purpose of morals and legislation united, the number of new denominations requisite is comparatively inconsiderable: these new denominations will mostly be taken from the Latin,—from that language from which most of the words of the languages of the most civilized nations are derived.
In the natural history branch, the language from which the new denominations are borrowed is the Greek—a language with which none except the extremely few have any sort of acquaintance, and which has no root in the language of the people. There ought, therefore, to be less objection to the introduction of new terms into the branches of legislation and morals, than into the branch of natural history: and there would be less, but for that horror of innovation by which the tyranny of the few over the subject-many may be repressed.
Prejudices adverse to improvement in Legal Language obviated.
On this occasion we may remark how disadvantageous is the situation of him whose endeavour it is, in this line of service, to give increase to the greatest happiness of the greatest number, in comparison with that of those whose endeavours are exclusively directed to the giving increase to their own personal greatest happiness, and thence to that of the class to which they belong, at the expense of the greatest happiness of the greatest number; and thence and thereby to the maximizing the defalcation from the aggregate stock of happiness:—in other words, how difficult and disadvantageous the task of the friend of the people, in the character of the would-be improver of the law, is, in comparison with that of the enemy of the people, in the character of the fee-fed practitioner and fee-fed judge.
The nomenclature devised in a barbarous age, by a mixture of stupidity, ignorance, error, and lawyer-craft, has, by force of irresistible power, under favour of interest-begotten and authority-begotten prejudice, been interwoven in the language, and been rendered the subject-matter of instruction to the highest educated classes, and the object of admiration and veneration to all classes:—nay, even the more flagrant its inaptitude, the more intense the veneration: for the more flagrant the inaptitude, the greater the labour necessary to the attainment of that incorrect and incomplete conception of the ideas attached to it, which the nature of them admits of; and the greater the labour a man has bestowed upon any subject-matter, be it what it may, the greater the value which he of course attaches to the fruits of that labour, whatsoever they may happen to be.
Thus it is, that while on account of its antiquity the most unapt nomenclature which misplaced ingenuity could devise is an object of favour and veneration, the most apt that well-placed ingenuity can devise will as naturally be an object of aversion and disgust:—inexorably averted from the idea of the new appellatives, the attention of the reader will confine itself to the novelty, and in that novelty will find an adequate as well as an efficient cause for those sentiments in the prevalence of which, instead of reward, punishment will, from the same source, be found the lot and the retributive reward for his labours by the benefactor of mankind.
Necessary, indispensably necessary, to correct, complete, and clear conception, is a correspondently correct, complete, and apposite nomenclature. Never to the purpose of conveying correct and complete ideas can any locution be adapted, by which no ideas but such as are incorrect, incomplete, and confused, have as yet ever been conveyed. To the acquisition of new instruction, necessary, indispensably necessary, to a correspondent extent is on the part of the instructor the framing—on the part of the learner the learning—of a new language.
In every other branch of art and science, universally and without exception is the necessity felt. Esteem and gratitude on the part of the learner is invariably the consequence—invariably part and parcel of the recompense of the teacher.
Take, for instance, the art and science of chemistry, and the improvement made in its nomenclature by Lavoisier. Not less extensive than just was the tribute of admiration and applause bestowed upon that illustrious man, and the no less illustrious partner of his bed, for that rich product of their conjoint labours in that branch of art and science.—Think of what chemistry was before that time—think of what it has become since!
Think of the plight that natural history and natural philosophy would have been in, had a law of the public-opinion tribunal been in force, interdicting the addition of any terms belonging to these branches of art and science, to the stock in use at the time of Lord Bacon. But the employment of the terms then in use in the field of natural history and natural philosophy, is not more incompatible with the attainment and communication of true and useful knowledge in that field, than the employment of the terms now in use in the field of jurisprudence is with the attainment and communication of the conceptions and opinions necessary to the attainment of the only legitimate and defensible ends of government and legislation.
The division of the qualities of plants into hot, cold, moist, and dry, each in a scale of degrees, was not more incompatible with correct, complete, and useful conception of the various properties of the subjects of the vegetable kingdom, than the still established division of offences into treasons, præmunires, unclergyable felonies, clergyable felonies, and misdemeanours.*
The corruption ascribed by the lawyer-branch of the flash-language, to the blood of those whom, on this or that occasion adverse fortune has placed on the losing side in a contest between two candidates for the faculty of sacrificing to the fancied felicity of a single individual the real happiness of twenty or a hundred and twenty millions—as a specimen of this nomenclature, with the atrocious tyranny involved in it, will afford to all posterity a melancholy proof of the state of corruption in the hearts of those who have given creation, preservation, and extension to that tyranny, and in the understandings of the deluded people who could remain unopposing victims of it.
Yes! within the memory of the author of these pages, the population of Great Britain, to the number of about twelve millions, was divided into two not very decidedly unequal halves: the one composed of those whose fondest wishes centred in the happiness of being slaves to a Scotchman of the name of Stuart;—the other of those whose wishes pointed in the same manner to a German of the name of Guelph. Of the twelve millions, six were devoted to extermination by the lawyers on one side;—the other six by the lawyers on the other side. In the aggregate mass of the blood of the whole population, not a drop that was not in those days in a state of corruption, actual or eventual, according to the system of physiology established for the benefit of most religious kings, by learned lords and learned gentlemen.
Scarcely of the whole number of those in whom, according to Blackstone’s language, the capacity of committing crimes had place, would a single one have escaped the having his or her bowels torn out of his or her body, and burnt before his or her face, supposing execution and effect capable of being given, and given accordingly, to the laws made, under pretence of being found ready-made, and declared for the more effectual preservation of loyalty and social order.
To whatsoever particular language the aggregate mass of discourse in question belongs, it will undeniably be in the greater degree apt with reference to the uses of human discourse taken in the aggregate, the more it abounds with words by which ambiguity and obscurity are excluded, or with words by means of which fresh and fresh degrees of conciseness are given to the body of the language.
Every language being the work of the human mind, at a stage of great immaturity, reference had to the present state of it, hence it is, that in every language, the most apt, or say the least unapt, not excepted, the demand for new words cannot but be great and urgent. In some of the departments of the field of language, including the field of thought and action, and the field of art and science, no reluctance at all as to this mode of enrichment has place:—on the other hand, in others such reluctance has place in a degree more or less considerable. Of this field, the portion in regard to which this reluctance seems to be most intense and extensive, is that which belongs to morals in general, and politics, including law and government, in particular;—of this reluctance, the inconsistency, and the evil effects that result from it to the uncontrovertible ends of human discourse, are apparent.
The opposite of that useful quality, the degree of which would be as the multitude of apt words associated with clear ideas—with ideas of unprecedented clearness, and introduced at a still maturer and maturer stage of the human mind, is a quality for the designation of which the word purity has commonly been employed. No sooner is the idea for the designation of which this word is employed brought clearly to view, than it is seen to be that which is aptly and correctly designated by the word indigence. This word indigence, wherefore then is it not employed—for what purpose is the word purity substituted to it? Answer: For this purpose, viz. the causing every endeavour to render the language more and more apt, with reference to the uncontrovertible ends of human discourse, to be regarded with an eye of disapprobation. Purity is of the number of those words to which an eulogistic sense has been attached—words under cover of which an ungrounded judgment is wont to be conveyed, and which are thence so many instruments in the hand of fallacy.
Of the use made of the word purity, the object, and to an unfortunate degree the effect, is—to express, and, as it were by contagion, to produce and propagate a sentiment of approbation towards the state of things, or the practice, in the designation of which it is employed—a sentiment of disapprobation towards the state of things or practice opposite.
On each occasion on which the word purity is employed for the purpose of pointing a sentiment of disapprobation on the act of him by whom a new-coined word is introduced or employed, reference is explicitly or implicitly made to some period or point of time at which the stock of words belonging to that part of the language is regarded as being complete—insomuch that, of any additional word employed, the effect is, to render the aggregate stock—not the more apt, but by so much the less apt, with reference to the ends of language; to wit, not on the score of its individual inaptitude (for that is an altogether different consideration,) but on the mere ground of its being an additional word added to that stock of words which it found already complete—a word introduced at a time subsequent to that at which the language, it is assumed, had arrived at such a degree of perfection, that by any change produced by addition it could not but be deteriorated—rendered less apt than it was with reference to the ends of language.
That as often as conveyed and adopted, any such sentiment of disapprobation is not only ungrounded but groundless, and the effect of it, in so far as it has any, pernicious, seems already to have been, by this description of it, rendered as manifest as it is in the power of words to render it.
An assumption involved in it is, that, so far as regards that part of the language, the perfection of human reason had, at the point of time in question, been already attained. Another assumption that seems likewise involved in it is—either that experience had never, from the beginning of things to the time in question, been the mother of wisdom, or that exactly at that same point of time, her capacity of producing the like offspring had somehow or other been made to cease.
Now as to the causes—the moral, the inward, the secret causes, in which this error—this pernicious mode of thinking, appears to have had its source. Applied to the field of thought and action taken in the aggregate, they appear to be these:—1. Aversion to depart from accustomed habits; in particular, the habit of regarding the stock of the matter of language as applied to the stock of ideas in question as being complete.
2. Love of ease, or say aversion to labour—aversion to the labour of mind necessary to the forming therein, with the requisite degree of intimacy, an association between the idea in question, new or old, and the new word thus introduced, or proposed to be introduced.
3. Where the word is such as appears to convey with it a promise of being of use, more or less considerable, in that portion of the field into which it is thus proposed to be introduced, a sentiment of envy or jealousy, in relation to the individual, known or unknown, on whose part the endeavour thus to make a valuable addition to the stock of the language has been manifested.
4. Of the causes above mentioned, the application wants not much of being co-extensive with the whole field of human discourse: one cause yet remains, the influence of which will naturally be more powerful than that of all the others put together. This cause is confined in its operation to the field of morals and politics—taking, however, the field of opinion on the subject of religion as included in it.
It consists in the opposition made by every such new word,—in proportion to the tendency which it has to add to the stock of ideas conducive to the greatest happiness of the greatest number,—to the particular and sinister interests of those by whom the sentiment of disapprobation, as towards the supposed effect and tendency of the new word in question, stands expressed, and is endeavoured to be propagated.
Of the modes or sources of improvement of language in respect of Copiousness.
Of single words, there are not many by which, in various ways, mischief to a greater amount has been done, than has been done by the word purity, with its conjugate pure:—done in the field of morals, in the field of legislation, and as here, in the field of taste.
In the fields of morals and legislation, purity has for another of its conjugates, a word significative of the opposite quality, impurity:—to the field of language the application of this negative quality does not appear to have extended itself.
The grand mischief here, is that which has been done by the inference that has been made of the existence of moral impurity from that of physical impurity—of impurity in a moral sense, from that of impurity in a physical sense.
In the field of taste, this word has been made the vehicle in and by which the notion is conveyed and endeavoured to be inculcated, that copiousness in language, instead of being a desirable, is an undesirable quality—instead of a merit, a blemish;—purity, being interpreted, is the opposite of copiousness: the less copious the language, the more pure. If ever there were a prejudice, this may assuredly be called one.
In the field of mechanics, when a workman has a new contrivance of any kind upon a pattern of his own to execute, a not uncommon preliminary is the having to contrive and execute accordingly a new tool or set of tools, likewise of his own contrivance, to assist him in the execution of the new work. Such, to no inconsiderable extent, has been the unavoidable task of the author with respect to legal language.*
The following are among the modes in which its improvement in the quality of copiousness may be sought:—
I. Augmentation, not to speak of completion, of the list of conjugates.
Rule 1: From whatsoever root any branch of conjugates already in the language has been derived,—from that branch deduce a root, and from that root deduce every other of the aggregate of the branches of which a complete logical cluster of conjugates is composed.
The operation is analogous to that of the gardener, who, stripping off a twig from a shrub, plants it in the ground, where it takes root, and having so done, forms itself into a perfect shrub, similar to that from which it was stripped off.
Rule 2: Give to every relative appellation its correlative.
Rule 3: Form new words with prefixes and suffixes matching one another.
Rule 4: Whatsoever group of conjugates any one of two opposites has, give also to the other,—to wit, in so far as it remains destitute of them.
II. Augmentation, not to speak of completion, of the list of compound words;—viz. of those in the formation of which the hyphen is employed as an instrument indicative of the junction; for as to compound words in which the junction is formed without the use of this instrument, the list of them will in a great degree coincide with the list of conjugates.
III. Augmentation (here completion is manifestly impossible) of the list of names;—univocal names of things and persons respectively.
In the manufacture of new words the following rules should be observed:—
Rule 1: No new word from any other than an English root, if any such is to be had.
Rule 2: Better from a Latin than a Greek root.
In either case, if there be any one branch already introduced into the English vocabulary, so much the better.
Rule 3: Introduce no species of conjugate of which there is no example as yet in the English language, so long as any one equivalent to it is to be had, of which there is an example in the English language.
When of a species which is familiar, an individual which is not familiar is introduced, for the joint purpose of authority and explanation, at the same time bring to view other individual instances.
English Language—its advantages for the purposes of Legislation.
Greek, Latin, and Teutonic, are the radical languages of the most civilized nations. Among these languages, the Latin is that which affords the richest set of conjugates, and consequently this language is the most apt for morals and legislation, in which the rule should be—ideis iisdem, verba eadem.
Among the Latin-sprung languages, the English is the most apt, as possessing in the highest degree the aggregate of these appropriate qualities, simplicity of texture, ductility, and augmentability.
Its aptitude for the purpose of legislation will appear—
1. As to words singly considered.
2. As to words aggregated into phrases.
It affords facility for the employment of new conjugates upon the pattern of the old. It allows of the employing any substantive as an adjective—viz. by simply prefixing it to another substantive, with relation to which it then becomes an adjective. In this way the names of parliamentary bills are formed. The extent of this facility will be clearly perceived, upon a comparison with the difficulties under which the French language labours in this particular.
It allows also of combining two words into one. When thus united, if one of them be a substantive employed as a substantive, it becomes the representative of an object capable of being made the subject of predication—a fictitious entity, to which, for the purpose of discourse, any action or quality may be ascribed.
It also contains a multitude of affixes—to wit, prefixes and suffixes—capable of being applied to any root for the formation of conjugates.
OF THE PERFECTIONS OF WHICH THE LEGISLATIVE STYLE IS SUSCEPTIBLE.
Imperfections! What?—nothing but imperfections? And are imperfections all the attributes of which nomography is susceptible? is the whole merit of the work of which the legislator in this point of view is susceptible, confined to so negative and weak a merit, as that of the mere avoidance of imperfections?
Perfections? Is there anything in the nature of legislative discourse which renders it unsusceptible of every quality that can with propriety be realized under that name?
Answer 1. Of the positive points of perfection, of which discourse at large is susceptible, there are none that apply to legislative discourse, in respect of its being legislative discourse,—none that apply to it otherwise than in respect of its being discourse.
2. Those points of perfection that apply to legislative discourse, inasmuch as it is discourse, are in point of importance, in comparison with the negative points of perfection, too inconsiderable to bear being mentioned in the same line. To please—to produce in the mind of the reader a sensation of the agreeable kind, but that a momentary one—such is the only desirable object they are capable of being rendered subservient to—the only good effect of which they are capable of being rendered productive.
3. Of those positive points of perfection of which discourse, inasmuch as it is discourse, is susceptible, will some, if not all, in the case of legislative discourse, be produced without any particular endeavour to give birth to them—produced of course by the remedial operations necessary to secure the existence of certain perfections of the negative kind.
Force and harmony:—to these two expressions all the perfections of the positive cast, applicable with propriety to this particular species of discourse, seem reducible. Force and harmony—two endowments, which if they are not the only perfections of which discourse taken at large is susceptible, are at any rate among those of which discourse at large is susceptible—the only ones which, in the case of the particular species of discourse here in question, can be either given to it, or be attempted to be given to it, without rendering it so much the less adapted to its own peculiar purposes.*
Harmony is a perfection which as such ought of course, in so far as may be, to be given to a legislative discourse, as well as to every other discourse. Harmony has for its object and effect, the affording a sensation of the agreeable kind to the ear; and be the organ or the occasion what it may, pleasure, in so far as it is pleasure, is a good, and the production of it a desirable result.
For this perfection, as for any other, a discourse of the kind in question will, when absolutely considered, be so much the better the greater the degree in which the perfection shall have been attained by it; and the advantage thus produced will be pure and clear, if in the form given to the discourse in question in this view, no imperfection of a more important character—none of those which have for their effects ambiguity, obscurity, or overbulkiness, are introduced into it. And in this pure and neat state, proper care being taken, the perfection in question may, it is supposed, be introduced into legislative as well as into any other species of discourse.
As to force, in so far as pleasure to the ear of the hearer or reader is the result of this quality in the discourse, this perfection may be considered as no more than a particular modification of the other—viz. harmony.
But besides that though in general harmony would perhaps be found an accompaniment of it, it may happen that the harmoniousness of a portion of discourse may be diminished rather than increased by a structure by which the force of it shall be increased: the service rendered to any species of discourse in general, and to this species in a particular degree, by force, is of a more important kind. This is of the number of those cases in which the effect is to suggest the idea of strength, intellectual strength, on the part of the workman. This idea, on all occasions, in so far as it finds place, an agreeable one, is in the present instance useful on a more important account. In a case of this kind, to excite in the mind of the hearer or reader the idea and opinion of the existence of intellectual strength on the part of the author, is to excite in his mind the idea and opinion of the existence of a quality, than which nothing can be more naturally and surely calculated to inspire confidence.
But among the operations which have for their object and effect the operating as remedies to imperfections of the second order, and thence, in other words, to endow the discourse in a proportionable degree with the opposite negative perfections, there are some which in general have also for their natural effect the giving to the composition the quality of vigour or force.
It is this which prevents ambiguity ex situ, ambiguity from bad collocation, by giving in each instance an apt location to every clause the effect of which is to operate in the character of a limitative clause, viz. of that to which it is intended to apply in the character of a principal clause, by inserting it in the bosom of that clause; if it be composed of two or more principal clauses, by placing it at the head of the whole series.†
OF FORMS OF ENACTMENT.
The forms of which a law is susceptible are* —1. Integral, or say principal; 2. Fractional, or say modificative—that is to say, modificative of some antecedently enacted principal law: to which may be added a third, under the name of composite,† as being composed of one or more integral laws, with the addition of one or more parcels of modificative matter—modificative, with reference to one or more integral or modificative laws.
By an integral law, understand the entire matter of one command—of one sentence or proposition: sentence, in the sense given to the word in an institutional work on grammar; proposition, in the sense given to the word by logicians in a book on logic.
Example: Thou shalt not, or no person shall commit; or, Let no person commit theft.
By a fractional law, understand a law by the matter of which some modification is applied—that is to say, some interpretation or some variation—to the import of the matter of some law, considered as the correspondent integral, or say principal law.
Example: The act of theft is committed, or, theft has place, where, not believing himself to have a right so to do, a person converts to his own use a moveable subject-matter of property, to the use of which, in the manner in which he so converts it to his own use, he has not any sufficient right—he at the same time being conscious of his not having any such sufficient right, and by concealment or carrying off of the thing so dealt with, or by disguise or subtraction of his own person, using his endeavours to avoid being amenable to law in respect of such his act.
In this example may be seen an example of a fractional law, which is interpretative, or say exponing, with reference to the above-mentioned principal, or say integral law.
In consequence of its familiarity to every ear and every eye it is, that the law expressed by the words, Thou shalt not steal, is herein-above employed as an example; but the form thus exemplified is not the simplest form of which a law relative to this matter is susceptible.
A more simple form is this: Thou shalt not convert to thine own use any moveable thing, or any subject-matter of property, which thou hast not a right so to deal with, as thou hast done. A law expressed in these words belongs to that class of laws which are regularly denominated civil laws, or spoken of as being respectively part and parcel of the aggregate branch of law called the civil branch, or the civil law, or the mass of matter belonging to the civil code. Better, in consideration of the various other senses in which the adjective civil, when applied in conjunction with the substantive law is employed, say, non-penal law, or simply distributive law.
The law expressed in and by these words,—Thou shalt not steal, or, No person shall steal, is in effect, under the guise of a simple integral law, a composite law, as agreeing with the definition above given of a composite law. For in the import of the word theft, as also in that of the word steal,—which is an abridged equivalent, of the words commit an act of theft—is included, though tacitly and thus implicitly, the idea of punishment, as being in some shape or other appointed to be inflicted on the agent, who is so in respect of such act:—which appointment cannot be made without a correspondent law (really existing or fictitious, of which latter case presently) enacted for that purpose, and attached to the integral law first mentioned.
Evil consciousness is the name proposed to be employed for the designation of one of two states, in one or other of which unless a man’s mind have place, punishment not being capable of producing any good effect—but on the contrary, being sure to be productive of bad effect—cannot but be worse than useless:—the other state thus alluded to being that which in Roman law and language has been termed temerity (temeritas), and may in English be rendered by the word heedlessness; that is, want of that strength of attention by which, if bestowed, the commission of the act, the maleficent quality of which is assumed, would have been prevented. For the designation of an act here expressed by the terms an act accompanied with evil consciousness, the words, a malâ fide act, or an act committed in mala fides, are employed in Roman law and language, and thence sometimes in the language employed by English lawyers.
An act accompanied with evil consciousness, as above, is also in Roman law and language said to be accompanied with dolus; or say, dolus is spoken of as being, in the mind of the agent, an accompaniment of the act. Inadequate, however, is this appellative thus used by Roman and Rome bred lawyers. For dolus, in the sense in which it is on any other ocasion employed in Roman language, means deceit, and implies that deception is produced or endeavoured to be produced in the mind of some person on the occasion of the act:—whereas it is as often employed in cases where no such deception is supposed to have been produced or endeavoured to be produced, as in cases in which it is supposed to have been produced,—as in case of a highway robbery or burglary committed by a man who knows that his person is well known to the party on whom and at whose expense the crime is committed.
Laws may further be considered as integral or principal, and subsidiary or say effectuative.
Effectuative being a term of reference,—by an effectuative law understand a law the object and function of which is to give effect to some principal law to which it is appended.
No otherwise than by applying to the mind of a person whose conduct it is designed to influence, an inducement of some kind or other, can any law of the effectuative class be productive of the effect intended.
Such inducement will be constituted by the eventual expectation either of the matter of good in some shape, or of the matter of evil in some shape:—of the matter of good in case of compliance, or of the matter of evil in case of compliance; or of the matter of good in case of non-compliance, and the matter of evil in case of non-compliance, in which case, in any event, the one or other will, by the person whose active faculty it is endeavoured thus to influence, be receivable.
If it be of the matter of good that the expectation is thus held out, remunerative is the term by which the effectuative law in question may be designated:—if the matter of evil, penal, punitional, or say punitive.
Legislation has been distinguished into two modes—the direct and the indirect.
In the direct mode, the persons at whose hands obedience is desired, are different in the case of the subsidiary or effectuative law, and in the case of the fractional law. In the case of each of the two species, the remunerative and the punitive, they are, howsoever it may be in regard to the principal law, always the same.
1. In the case of the remunerative subsidiary law,—the persons, whoeoever they happen to be, by whose hands the matter of remuneration is eventually to be transferred into those in whose instance compliance with the desire which gave birth to the principal law has had place, are most commonly, persons belonging to the financial subdepartment of the administration department.
2. In the case of the punitive subsidiary law,—the judge to whom the cognizance of the case belongs.
3. In the case of the principal law, they are persons of any class whatsoever,—persons belonging to any one of the classes all-comprehensive, or short of all-comprehensive,—at whose hands compliance is called for by the general code, and the several particular, or say specific codes,—including the several still more particular, and, as they may be termed, subspecific classes, at whose hands compliance is called for in and by each one of the several particular codes.
In the indirect mode of legislation, separate subsidiary, or say effectuative law, for this particular purpose there is none.
Disguised forms of legislation may be employed, either undesignedly or designedly:—thus by means of a remunerative inducement, there may be created an indirect mandate—under the appearance of a prohibition, there may be an indirect licence.
Indirect mandate, with a remunerative inducement to compliance.
Example: Mass of the matter of wealth to an indefinite amount. Power given to P. (patron) to confer it;—to I. (incumbent) to receive it, retain it, enjoy it:—but on condition precedent, antecedently to be performed; to wit, a declaration of opinions, a declaration by the utterance of which the declarant asserts that he entertains, in relation to a certain subject-matter of opinion thereupon named, an opinion to a certain effect.
Of the utterance of every such mandate, the effect is the production of mendacity on the part of some part, or the whole of the number of those by whom the mass in question is received. How so? Answer: Because, in this case, by a man in whose instance the assertion is mendacious, accompanied with evil consciousness, the matter of good in question, the reward, may be obtained as surely and as safely as by any one in whose instance the assertion stands clear of any such accompaniment.
In the instance of no person can any other person have sufficient ground for regarding it as certain that a declaration of opinion made in the case in question is mendacious. But in the instance of any person, all others will have some ground for entertaining a suspicion to that effect;—that is to say, for regarding such mendacity as being more or less profitable.
The probability of the existence of mendacity in this case, is in the direct ratio of the improbability of the matter of fact, the existence of which is asserted by the declaration in question; and of the perspicacity of the person by whom the declaration is made.
For contributing to the propagation of mendacity on this occasion, in this mode, and by this means, inducements operating on the part of a contributor are the following:—
1. Averting from himself the imputation of mendacity. The persons in whose instance alone this inducement has place, are those by whom the like declaration is known to have been made.
2. Producing on the part of other persons in an indefinite number, a declaration of opinion clear of the imputation of mendacity on the subject in question,—that is, in other words, causing them really to entertain an opinion to the effect in question. How so? Answer: By the force of authority-begotten prejudice.
In relation to many points, not to say most, every man finds himself under the necessity of borrowing his opinions from others, grounding his conduct not on any direct opinions of his own relative to the matters of fact in question, but upon the opinions of this or that person, or class or assemblage of persons, whose opportunities of receiving information he regards as more conducive to the end in view, than any of which he himself is in possession.
In this way it is, that by a declaration of opinion made by a man in whose instance it is mendacious, that same opinion is caused to be really entertained, and consequently a declaration made of it clear of mendacity in the instance of other persons in any number.
3. By this means giving strength to the party to which he belongs—a party having for the symbol and evidence of mutual union and co-operation, the entertaining of the same opinion in relation to this or that subject-matter of opinion, no matter what.
Licence presupposes either prohibition or mandate, and has for its effect the removal of the one or the other, in the instance and for the benefit of the individual who is said to be licensed.
In the case of prohibition, the indirect mode is much more effective than the direct. Why? Because prohibition supposes delinquency on the part of him who fails to comply with it; that is to say, who exercises an act of the sort of those for the prevention of which the prohibition issued: prohibition supposes delinquency, and delinquency supposes eventual punishment and suit at law, in this case styled prosecution, for the purpose of inducing the judge to apply the punishment. But for this purpose, evidence is necessary, with time and means of adducing counter-evidence; none of which obstacles have place in the case of indirect prohibition.
The greater the delay, expense, and vexation attendant on prosecution, the greater the excess of efficacy on the part of the indirect in comparison with the direct mode.
In a word, the mode of prohibition is indirect when the portion of good or the portion of evil of which the inducement to abstain from the exercise of the prohibited act is composed, takes place without recourse had by any person to the services of the judge for the purpose of causing it to be received: the portion of good, that is to say, the enjoyment, or the efficient cause of enjoyment—the portion of evil, that is to say, the portion of suffering, or the efficient cause of suffering.
Prohibition, with a punitive inducement to compliance attached in the indirect mode.
Example: A tax imposed on law proceedings—the amount of it payable either to the public, or to a judge, or other member of the judiciary establishment.
Every tax imposed on an object of general desire has the effect of a prohibition; that is to say, a prohibition inhibiting the use of it to all those who have not wherewithal to pay the tax. Now mind the effect of a tax imposed on the faculty of obtaining the services of the judge.
The use of it to those to whom it is of use—the use of it in comparison with the direct mode of endeavouring to prevent that which it is desired to prevent, is the faculty of effecting the prevention without the odium which would attach upon any one who should be seen to join in the application of prohibition in the direct mode.
By a tax on law proceedings, the effect of a licence may be produced.
I. A tax imposed on the operations performed on the plaintiff’s, or say demandant’s side, operates as a licence to wrong in every possible shape, at the charge of every individual who, at the time in question, is unable to defray this factitious expense, in addition to expense in all other shapes, factitious and natural taken together: in this case, to wrong in all shapes through failure of justice, for want of the official services of the judge and his subordinates.
The efficient enactments by which in this case the effect, i. e. the licence, is produced, are these:—1. A mandate addressed to the judge, commanding him eventually to render to each demandant the particular services demanded by the demand, and thereby to impose on the defendant the burthen, whatever it be, the imposition of which is called for by the demand,—eventually, that is to say, if to the satisfaction of the judge it shall have been proved, that by rendering such service, execution and effect will on that individual occasion have been given to some law applying to the case. 2. Applicable to a correspondent portion of the extent covered by that same mandatory enactment, a prohibitory enactment, inhibiting the judge from rendering such a service in every individual case in which the tax in question has not been paid.
II. A tax on judicial operations performed and judicial instruments employed on the defendant’s side, operates not only as a simple licence given to the demandant to inflict wrong on the defendant in every shape in which punishment or other burthen is endeavoured to be imposed by the demand: in this case, not merely is a licence to commit the several enormities given, but by the legislator, at any rate, the judge is rendered an instrument in the hand of the wrongful demandant, in and for the commission of all these several wrongs—an accomplice of the wrongdoer, the wrongful demandant, by whom is reaped the chief profit from these wrongs.
The effective enactments by which in this case the effect of the licence, or more than the effect of the licence, is produced, are—
1. A mandate addressed to the judge, commanding him eventually to render to each demandant the services demanded by his demand, and thereby to impose on the defendant the burthen, whatever it be, the imposition of which is called for by the demand:—eventually, that is to say, if to the satisfaction of the judge it shall have been proved, that by rendering such service, execution and effect, will in this indivdual occasion have been given to some legislative-made law at that time in force and applying to the case, or some judge-made law, operating in default of such legislative-made law, and applying to that same case.
2. A correspondent prohibition addressed to the judge, inhibiting him from permitting the defendant to perform this or that operation, the performance of which is necessary,—or from exhibiting this or that written instrument,—exhibition of which is necessary, to his defence: that is to say, to the affording to the judge reasonable ground for being satisfied, that in case of his rendering to the demandant in question the service he demands, execution and effect would not be rendered to any law, but that, on the contrary, by his rendering that same service an offence against some law actually in force would be committed.
Of these two arrangements taken together, the effect is, to command the judge, on the individual occasion in question, to commit an act which in the eyes of the legislator himself is an act of injustice: to bestow upon every person by whom what in his eyes is regarded as an adequate assurance has been obtained, that another individual, on whom he is desirous of imposing a burthen in any shape in which the judge is either commanded or permitted eventually to impose it, that such individual will not be able to raise the money on the payment of which, and not otherwise, he will have purchased the permission to adduce the evidence, and arguments necessary to exempt and preserve him from suffering under the burthen thus wrongfully endeavoured to be imposed,—the effectual power of imposing that same burthen.
When by a law by which, for the declared purpose of preventing the exercise of a species of act regarded as being in a preponderant degree maleficent, a prohibition with a punitive sanction, or say inducement, is established, in such sort, that—while the aggregate amount of the eventual burthen appointed to be borne by a person not complying with the inhibition is fixed, or confined on the side of increase within a certain limit, the nature of the inhibited act is such, that in individual cases more or less numerous, after the offending agent has been subjected to the burthen, a clear benefit, or say a net profit, to an amount more or less considerable, remains in his hands,—instead of the supposed and apparent prohibitory enactment or arrangement, a mandatory enactment and arrangement, with a remuneratory sanction and inducement, has place, to the amount of such clear benefit in each such individual case.
From this theoretical observation follows a practical conclusion of prime importance. Throughout the whole penal code, in the case of every offence, give to the judge the power of searching out and taking from the offender the whole profit of the offence:—this done, and not before that, it comes to be of the nature of any burthen imposed, to contribute in the character of a subsequentially privative remedy to the prevention of offences of the like nature in future.
To the present topic belong in strictness those cases, and those cases alone, in which, at the expense of prohibitive enactments with punitive inducements emanating from the legislative authority, an unannounced, and thence by persons in general unperceived, licence, is granted by that same authority.
But a place may here be found, in which, in the way of allusion, intimation may be given of a species of operation productive of the same effect though performed by other hands; since of the mass of evil thus produced, the intensity and extent are such as can scarcely fail to impress upon every reader’s mind a correspondent sense of its importance.
These other hands are those of the judicial authority: and in the circumstances in which civilized society has everywhere as yet been placed, though in point of fact everywhere the judicial authority is by avowed acknowledgment subordinate to the legislative, and in the very nature of the case cannot but so be,—yet such, on the one hand, has been the cunning and audacity of the members of the judicial establishment, and such the blindness or supineness of the legislative authority, in whatsoever hands placed, that in every country, to a greater or less degree, but in England in a more particular degree and to a greater extent by far than in any other country, the judicial has found means, on various pretexts, to trench upon the authority of the legislative, to destroy the effect of its enactments, and thus, and in so far, usurp its authority.
In another place, the device by which this state of things has been brought about has been designated by the words, decision on grounds avowedly foreign to the merits:* and under this, the practice, or say operation, designated by the appellative of nullification or annulment, has been brought to view, and shown to be the principal instrument of the evil thus accomplished.
It has been seen how it is, that of the principal enactment, whether prohibitory or mandatory, with a punitive inducement, the effect depends upon a corresponding enactment, styled a subsidiary, or say effectuative enactment, commonly, if not always, of the mandatory cast, addressed to the judge. Hence it is, that if in any instance, upon application in ordinary course made to him, the conduct maintained on that individual occasion be, instead of strict compliance as it ought to be, that of downright non-compliance, such act of non-compliance is an act of usurpation, an act of delinquency, in respect of which in every political community in which a degree of anarchy incompatible with general security is not preferred to a consistent mode of governance, without which no adequate degree of general security can have place, every judge thus acting in a state of disobedience to his universally acknowledged superordinate, will be considered as a criminal, and as such dealt with.
In this case, not only does the judge in every instance assume to himself, and exercise the power of frustrating, and pro tanto repealing the enactment of the legislature, but though in an indirect, not in a less efficacious way, with or without being conscious of the evil he is doing, does he impart that same power to other persons in a great variety of situations. For non-compliance with a certain supposed and imaginary enactment, although the act of delinquency of which he stands accused have been proved upon the defendant, and thereby the existence of the corresponding obligation on the part of the judge to make application of the appointed punishment, the judge refuses to make such application.
Now, then, if it were real, this imaginary regulation, what would it be? It would be for example, a regulation enacting that unless in the instrument of accusation (denominated for example an indictment, by which, in so far as regards general ideas, expression is given by a certain assemblage of general words, while for the giving expressions to the individual ideas belonging to the individual case blanks are left), such and such words shall be employed:—employed by whom? by the individual, whoever it is, by whom the words were written, subject to a review performed or not performed, as it may happen, by his employer, a person holding some subordinate situation under the judge,—the punishment enacted by the legislator shall not be inflicted.
Hence, then, by this regulation, a power is given at any rate to some subordinate functionary in an obscure situation, to frustrate any or all enactments of the legislator which come for execution and effect to the judge under whose authority he officiates;—at any rate, to some subordinate clerk of the arraigns or whatever he is called. But in contingency, and always in probability, another person to whom this same power is imparted, is any man whatsoever, who, in the capacity of a copying clerk, happens to be employed by that same subordinate officer.
Of this same maleficence-licence institution, the species of licence here and elsewhere mentioned under the name of the mendacity licence, is a species, or say modification.
In this case, a prohibition is enacted—a prohibition with a punitive sanction and inducement, inhibiting under certain penalties the commission of any act of mendacity—of any act by which expression is given to a false assertion, accompanied with the consciousness of its falsity. But the case to which the application of this prohibition is confined, is the case in which a special engagement to abstain from mendacity has been taken and entered into, by bearing a part in the ceremony styled an oath,—in this case, an affirmative oath.
Thus stands the matter in the case of the mendacity-licence taken at large.
But in the case of the mendacity-licence which has been established, and has place on different occasions throughout the whole course of judicial procedure under the law of England, as also under the law of perhaps most other countries,—to this negative sort of encouragement given, and licence granted, by forbearance to apply prohibition, is added, under English law at any rate, an encouragement of the positive cast, afforded by a mandate with a sanction and inducement of the remunerative kind, addressed to all malâ fide suitors on both sides of the suit, and in particular at the outset to a malâ fide suitor on the demandant’s side.
Utter—says the legislator to every man disposed to be a wrong-doer, to commit depredation or simple oppression at the charge of any individual marked out by him for his victim—utter in customary form and quantity a mass of mendacious assertion;—if the individual at whose charge it is your desire to inflict wrong in this shape, whatsoever it be, have after a certain length of time failed to give utterance in a written form to a correspondent mass of assertory matter, true or false, the wrong it is your desire to commit at his charge shall take effect; the mass of the matter of wealth, whatever it be, which being in his possession it is your wish to get into yours, shall accordingly, upon your carrying on the appropriate series of operations, be placed in your hands, or the oppression which in other shapes it may be your wish to see exercised on him, shall accordingly be exercised.
Thus pregnant with absurdity and mischief upon an all-comprehensive scale, would be this practice—this institution (if such it may be called), if the facts assumed by it really had place; namely, the existence of a standard of conformity set up by competent authority, and warning given of the practical consequence that would be grounded on want of conformity to such standard—namely, the frustration, and pro tanto the repeal of the punitive, subsidiary, or say effectuative law, attached by the legislative authority to the principal prohibitive law. So much for what in a certain supposed case would have been the state of things. But this same state of things, what is it in reality? Answer: Throughout the whole of the portion of the field of law over which this licence extends its baleful influence, the existence of any such standard, and consequently of the warning pointing to it, is a mere fiction. It is for not having done that which to the knowledge of these judges was impossible,—the impossibility being of their own creation, that the suffering inflicted by the frustration of the legislative-made law is inflicted by them.
Suffering thus inflicted by a judge, and that without so much as a pretence of maleficence or delinquency in any shape,—on his part in any shape?
Oh yes, so it is. For whatsoever may have been the expense, not to speak of vexation in other shapes, experienced by the prosecutor in the course of his endeavours to cause execution and effect to be given to the enactment of the legislature, the suffering produced by it is left to rest on his shoulders without compensation; while, by the delinquent, be his maleficence ever so enormous, in no shape (in addition to the vexation) is suffering produced, other than by such expense as he is subjected to by the proceedings carried on by him on the occasion and for the purpose of his defence.
By the legislator orders are given to the judge to inflict punishment on the delinquent. This same judge,—what does he in consequence? In so far as depends upon him, the criminal he leaves unpunished, securing to him at the sametime whatsoever was the expected profit of his crime—the goods, for example, abstracted in the way of theft, highway robbery, or housebreaking: on the party in whose breast the suffering was produced by the crime—in spite of the legislator, in the very teeth of his ordinance—he heaps additional suffering.
Of insubordination thus exemplified, too much there is in the legal system of every civilized country on the face of the globe; into the mass of power belonging to the master legislator, to which, as in duty bound, he gives execution and effect, this cunning servant contriving everywhere to slip in a portion of power clandestinely, to add to his own use a portion of power, to which he gives most sure execution and effect, to his own use and to his own advantage, at the expense of the power of the sovereign and the comfort of the subject-citizens. After the pattern set by Rome-bred law, à peine de nullité, you see in Buonaparte’s codes:—the like in the same language, or some other language, you may see in other codes. And the punishment thus inflicted by the utterance of the word nullité, or its equivalent, on whom is it inflicted? On the guilty author of the injury? No, not in any instance: but on him who, in respect of the injury, is not only innocent, but injured. Of the suffering produced in the case of the most mischievous crime, committed by a man who in common language is aggregated to the all-comprehensive and reproachful denomination of malefactors, what is the quantity compared with that produced by the judge with the word nullity, or this or that one of its kindred for a pretence?
Thus stands the matter hitherto, even in that code of that government, the practice of which, in this respect, is least exposed to reprobation. But it is in England and English law that injustice in this shape triumphs and reigns, with a degree of flagrancy which leaves the highest of that exemplified in any other country far behind.
A sportsman who, with or without a crown or a judge’s wig upon his head, taking his station within shot of the entrance of a bridge, should amuse himself in shooting men and women instead of partridges and hares, might serve as the emblem of the judge with the words null and void, instead of shot; laying low at the command of his caprice the passengers as they presented themselves, aiming at them without any other care as to the selection, than that of bringing down the party robbed or hurt, instead of the malefactor by whom the robbery or the outrage had been committed.
Another exemplification of unauthorized legislation has elsewhere been brought to view; to wit, that practised by individuals in the situation of jurymen.* Throughout English law, if, on the part of any class of public functionaries, misconduct in any shape receives a palliation, it is by misconduct on the part of the same or some other class of public functionaries. Thus the veto put as above in individual cases by judges on all laws, the most salutary and indispensable, receives a sort of palliative, and the mischief of it a sort of counteraction and correction, in the veto, which also, in individual cases, juries have the power of putting upon mischievous ones. Weak, indeed, would be the palliative, scanty the compensation, were the mischief, which an English juryman by his veto has it in his power to prevent, no greater than that which an English judge, with the words null and void in his mouth, has it in his power to propagate.
But the utmost mischief which the judge is likely to add to the will, the power to do, on any individual occasion, does not go beyond that which is the result of letting loose upon society a murderer or two: as when, not long ago, the man who had cut a child’s head off, was saved by a judge from punishment, because some clerk or other had written in a paper a line or a word which the judge said was a wrong one. Whereas nothing can be more clear, that were it not for the power which juries possess of nullifying, amongst other portions of judge-made law, that by which all free discussion of the conduct of public functionaries is constituted a crime, and as such declared to be and endeavoured to be made punishable, the condition of the people of England would long ago have been rendered undistinguishable from that of the people of Spain and Portugal.
Instead of the child as above, suppose the person to whom the amputated head had belonged a king—and suppose, as would be the case, the name given to the crime to be,—not murder, as in that case,—but treason. As to the judge, there would be no great apprehension of his granting in this case the licence granted as in that case, to the crime. Not altogether so in the case of the juror: to him it might seem that the people would be better off without the king in question in particular, or without any king whatsoever, than with one; and in that persuasion, pronouncing the words not guilty, he might by perseverance force into the eleven other mouths those same words, with the perjury which English piety has added as if for a relish. And thus it is, that when the corruption of the English government has swelled to such a pitch as to render the whole amount of it a no longer endurable nuisance, a few jurors, with these two words on their lips, have it at their option to accomplish the dissolution of it; whereupon sooner or later a new government in some shape or other will take place, and be established: and as to any other equally bad with the present, it is what the most timid need not be apprehensive of; seeing that it is not in virtue of the form of government, but in spite of the form of government, that that measure of felicity, whatever it be, by which England stands distinguished to its advantage from any other nation, is produced.
In effect, the power thus exercised as above by judges, jurymen, and attorneys’ clerks, has it not a name? Oh yes;—a name it has;—and that name is pardon. Everywhere, on the footing on which it stands at present, the power thus denominated is a relic of primeval barbarism: it is the power of frustrating the declared will of the legislator. The folly on which it stands in a monarchy styled limited, is different from that on which it stands in an avowedly absolute monarchy. In an absolute monarchy, in which it is in the single person of the monarch that the whole power of legislation is vested, neither in the possession nor in the exercise of the power of pardoning has contradiction in any shape or degree place: in the individual occasion in question—in the individual instance in question, the will of the sovereign is different from that which has place in all cases without distinction. To take away the effect of the law in every future individual instance without exception, is altogether at all times in his power, and frequently in his practice: and in comparison with this, how small is the power of pardoning an individual, supposing the occasion on which it is exercised ever so improper, and the effect of it ever so mischievous?
Very different is the folly on which the case stands, when the monarch, having no more than a share in the exercise of the legislative power, so called, has in his own single hand the power of frustrating the effect of any enactment, howsoever salutary, howsoever necessary to public security.
How much greater the folly for any legislature to leave the power of frustrating its enactments in the hands of jurors, judges, and copying clerks.
Logical arrangements, which have served as so many nova organa, or instruments of invention or discovery to Jeremy Bentham, in the composition of his several works.
To enable himself to take a commanding view (says Bolingbroke) of the field of law and legislation, there are two principal vantage grounds, on which it is necessary for a man to mount, viz. history and metaphysics.
The observation is Lord Bolingbroke’s, and it has been quoted from him by Hume, or some other author of the first eminence.
To that one of the two vantage grounds which is offered by history, the road is smooth and flowery;—and of those who have ascended to it, and taken post upon it, there has been no want.
To that which belongs to the region of metaphysics, the road is rugged, and full of thorns. Few are they who have attempted to gain this height; and of those few, still fewer who have succeeded in reaching it, and placing themselves in any such station as hath afforded them any clear and extensive view of the regions stretched out at their feet.
In the following sketch, an enumeration is given of the several monticules which, in the course of his travels on the vantage ground of metaphysics—to call it by the name given to it by Bolingbroke—or, as some would say, of logic—were descried by the mind of the author, and on which, from time to time, it has taken its station, for the purpose of the surveys it has, for different purposes, had occasion to take of that extensive field which is occupied below, in common by ethics or morals, law, and legislation.
If their position merely be regarded—the post they occupy in the intellectual regions—these objects may, according to the figure of speech employed by Bolingbroke, be considered merely as so many stations or resting-places in that more arduous one of his two vantage grounds.
If the purposes and uses to which they have been applied be the object of regard, there will be a convenience in changing the figure, and considering them, with Lord Bacon, as so many engines or instruments, by the aid of which the different works that have been undertaken have been either accomplished, or at least laboured at and attempted.
In most instances, the instrument thus employed by the author was constructed by himself alone,—no part having been borrowed from any other hand;—in other instances, the instrument was found by him, in part at least, ready made; but either enlarged by himself, or applied to uses to which it had not been observed by him to have been applied by any one else. As often as the hand from which he thus received it could be determined and recollected, mention has been made of it.
New ideas derived from Logic.
I. Division of entities into real and fictitious; or say, division of nouns-substantive into names of real entities, and names of fictitious entities:—
By the division and distinction thus brought to view, great is the light thrown upon the whole field of logic, and thereby over the whole field of art and science, more especially the psychical, and thence the ethical or moral branch of science.
It is for want of a clear conception of this distinction that many an empty name is considered as the representative of a correspondent reality:—in a word, that mere fictions are in abundance regarded as realities.
D’Alembert is the author in whose works* the notion of this distinction was first observed by me;—être fictif is the expression employed by him for the designation of the sort of object, for the designation of which the appellation fictitious entity has ever since been employed.
In speaking of the faculties of the mind, the same distinction will also be found occasionally brought to view in the philosophical works of Voltaire.
By attention to this distinction it is, that I was enabled to discover and bring to view, in the case of a numerous class of words, their incapacity of being expounded by a definition in the ordinary form, viz. the form per genus et differentiam, which form of definition it has, with how little success and benefit soever hitherto, perhaps universally been the practice to bestow upon them; and at the same time to bring to view the only instructive and useful exposition of which the words of this class are susceptible, viz. the exposition by paraphrasis—the only form of exposition by which the import attached to them is capable of being fixed, and at the same time placed in a clear and determinate point of view.
See, in particular, the class of political, including legal, fictitious entities,† in respect to which, by indication of the relation which the import of the word in question bears in common to the fundamental ideas of pain and pleasure, a distinct and fixed meaning is thus given to a numerous tribe of words, of which, till that time, the meaning had been floating in the clouds, and blown about by every blast of doctrine:—words to the which, in the mind of many a writer, no assignable ideas, no fixed, no real import, had been annexed.
II. Division of entities, real and fictitious together, into physical and psychical:—
By means of this arrangement, considerable has been the light thrown upon the field of psychical entities, and the origin and formation of language: the connexion between the nomenclature of psychical and that of physical entities has been clearly pointed out. There is no name of a psychical entity, which is not also the name of a physical entity, in which capacity alone it must have continued to have been employed, long before it was transferred to the field of psychical entities, and made to serve in the character of a name of a psychical, and that most commonly a fictitious entity.
III. Relations between the import of the word happiness, and that of the words pleasure and pain:—
Sole positive element of happiness, alias felicity, alias well-being—pleasures, and those determinate ones: sole negative element of happiness, exemption from pains, and those equally determinate ones.
Determinate import thereby given to the word utility, a word necessarily employed for conciseness sake, in lieu of a phrase more or less protracted, in which the presence of pleasures and the absence of pains would be brought to view.
An action may be considered and spoken of as useful, as conducive to general utility, in proportion to the value of any pleasures which it is its tendency to produce, or of any pains which it is its tendency to avert.
Whether there ever were a time at which the word happiness failed of presenting to my mind the character of an aggregate, or compound, of which pleasures, and the exemption from corresponding pains, were the sole elements, is more than at present I can recollect. The satisfaction I remember to have experienced at the observation of this interpretation, as given to it in the first place by Helvetius,‡ and afterward by Hartley,∥ affords some presumption of its being at the first of these times new to me. But perhaps the cause of that satisfaction was not the novelty of the notion in relation to my own conceptions, but the circumstance of seeing the confirmation given to them in these works.
IV. Elements or dimensions of value in regard to pleasures and pains:—
It was from Beccaria’s little treatise on crimes and punishments that I drew, as I well remember, the first hint of this principle, by which the precision and clearness and incontestableness of mathematical calculation are introduced for the first time into the field of morals—a field to which in its own nature they are applicable with a propriety no less incontestable, and when once brought to view, manifest, than that of physics, including its most elevated quarter, the field of mathematics.
The elements or dimensions of value, in regard to pleasures and pains, are—1. Intensity; 2. Duration: these belong to it whether considered as past or as future; and of these two taken together, its magnitude is composed. To these come to be added, but in the case only in which it is considered as not yet past—3. The certainty or probability of its arrival; 4. Its proximity, propinquity, or remoteness.
Thus far it is considered as confined to the breast of a single individual: if considered as seated, or capable of being seated, in a number of different breasts, it is then considered as existing under a fifth dimension, viz. Extent,—which extent has for its measure the number of the individuals who are considered as being thus affected;—the greater that number, the more extensive it is; the less, the less extensive.
Two other conceivable elements of value remain still to be ascribed to it, viz. 6. Fecundity; 7. Purity. Of these elements, neither, it is true, can be considered as belonging to the value of a pleasure or a pain when considered by itself: in both instances, it is considered inasmuch as it is capable of being accompanied or followed by sensations of the same or a different kind. If by sensations of the same kind, i. e. if, being a pain, by a pain—or being a pleasure, by a pleasure, it be considered as accompanied or followed, it may, in proportion to the number of such concomitant or consequent sensations, be termed fruitful or unfruitful, prolific or unprolific:—if by sensations of an opposite kind, it may, in proportion to the number of such concomitant or consequent sensations, be termed impure, in proportion to the number of those which it escapes or fails being accompanied with, pure.
For bringing to view in a concise form these elements, seven in number, the following memoriter verses, awkward as verses of that class naturally are, may for the present serve:—
Less awkward verses I cannot but suppose may one day be found, and substituted to these with advantage, by some person who is more in use to dress up language in the garb of poetry.
V. Extension of the use made of the word matter, from the field of physics to the whole field of psychics, or psychology, including ethics and politics:—
1. In the higher, or more general quarter of them; viz. in the phrases matter of good, matter of evil.
2. In the department of law in general, and of penal law in particular,—matter of satisfaction or compensation, matter of punishment, matter of reward; matter of punishment being neither more nor less than the matter of evil applied to a particular purpose;—matter of reward, the matter of good applied to one particular purpose;—matter of satisfaction, the matter of good applied to another particular purpose.
3. In political economy—matter of wealth and its modifications; viz. the matter of subsistence, and the matter of opulence or abundance; each of these being neither more nor less than so many modifications of the matter of wealth; and in so far as, through the medium of exchange, interconvertibility as between them has place, with no other difference than what corresponds to the difference in the purposes to which that common matter comes to be applied.
Correctness, completeness, and consistency of the views taken of these large portions of the field of thought and action,—conciseness in the sketches made or to be made of them:—such are the desirable effects which this locution presented itself as capable of contributing in large proportion to the production of.
By this means, for the first time, were brought to view several analogies, which have been found of great use in practice;—a clearer, as well as a more comprehensive view of all these objects, having thereby been given, than in the nature of the case could, or can have been given by any other means.
The matter of good, as to one-half of it—one of the two modifications of which it is composed—viz. the negative—being the same thing as the matter of evil; one and the same object—viz. pain—having by its presence the effect of evil, by its absence or removal the effect of good;—the matter of good being, in its positive modification, composed of pleasures, and their respective causes—in its negative modification, or form of exemptions, i. e. exemptions from pain, and their respective causes.
In like manner, the matter of evil being as to one-half of it—as to one of the two portions of which it is composed, viz. the negative—the same thing as the matter of good; one and the same object—viz. pleasure—having by its presence the effect of good, by its absence, when considered as the result of loss, the effect of evil: the matter of evil being, in its positive form, composed of pains, and their respective causes—in its negative form, of losses corresponding to the different species of pleasures capable of being acquired and possessed, or lost, and their respective causes.
From this correspondency and interconvertibility, a practical result—in the hands of whosoever is able and willing to turn the observation to advantage—is the prevention of excess and waste in the application of both these portions.
A position which by this means is placed in the clearest and strongest point of view, is—that by whatsoever is done in any shape, in and by the exercise of the powers of government, is so much certain evil done, that good may come.
Though the matter of reward, and the matter of satisfaction (viz. for injuries sustained) are in themselves so much of the matter of good, yet it is only by coercion, and that in a quantity proportioned to the extent to which that coercion is applied, that the matter of good thus applied can be extracted.
That when, on the score of and in compensation for injury sustained, the matter of good is, in the character of matter of satisfaction, extracted from the author of the injury, it operates, in and by the whole amount of it, in the character of punishment, on the person from whom it is extracted: and whatsoever may be the quantity of punishment inflicted in this shape, in that same proportion is the demand for punishment satisfied; and whatsoever may be the amount of it in this shape, by so much less is the demand, if any, that remains for it in any other.
Operating in any such way as to produce, on the part of the party operated upon, an act or course of conduct adverse in any way upon the whole to the interest of the community in question—ex gr. a particular class or district or other division of the political state, the whole of the political state in question, or mankind at large—the matter of good and evil becomes the matter of corruption.
It may be either the matter of good or the matter of evil: but it is the matter of good that most frequently presents itself in that character.
The breast in which the matter of corruption is thus operating may be that of any individual at large; but the case which affords the most frequent occasion for speaking of the matter of good, as operating in this character, is that in which the person thus operated upon is regarded as occupying the situation of a trustee—of a trustee, whatsoever be the party regarded, as the correspondent principal, or, as the English lawyers say, using remnants of an obsolete jargon borrowed from France, cestuy que trust; whether another individual, or assemblage of determinate individuals, a subordinate community, composed of an assemblage of individuals, individually indeterminate, or the whole political state.
To operate in the character of matter of corruption, the matter of good and evil requires not to be actually applied by this or that hand in the character of a corrupting hand. Of itself, and without any such application, the matter of good and evil, especially in the form of good, keeps operating, in so far as, being at the disposal of any individual, or assemblage or division of individuals, the interest of such parties is adverse to the interest of a greater number of individuals.
In every political state, in the shape of the matter of wealth, a quantity, more or less considerable, of the matter of good and evil lies, and a still greater quantity is expected to be at the disposal of the several persons in whose hands the business of the administrative department is lodged. In every state, in so far as in these same hands the disposal of it is left free, it is in the power of these trustees of the public so to dispose of it in favour of other trustees of the public in the other departments of government—viz. the legislative and the judicial—as well as to those belonging to that same department, the administrative—as to cause them to be subservient to the particular interest of these depositaries of the public stock, at the expense of the public at large.
Accordingly, in proportion to the quantity of this matter being or expected to be at the disposal of these hands, and the facility with which it is capable of being applied to this sinister purpose, will be the force with which, in the character of the matter of corruption, the matter of good and evil will be operating—operating upon all persons, according to the degree in which, partly by situation, partly by disposition, they stand exposed to its sinister influence.
VI. Good and evil of the first, second, and third orders, i. e. Effects similar or opposite, producible in society by the operation of one and the same act at different stages of its progress:—effects in some cases homogeneous with reference to each other, in other cases heterogeneous, are produced in the way of good and evil by the influence of one and the same act in the course of its progress in and through society.
1. In the case of delinquency,—effects in the way of good and evil producible by an offence.
In the first stage comes a portion of the matter of good; viz. the advantage, whether in the shape of pleasure or of exemption from pain, the prospect of which was, in the character of a motive or inducement, the cause of the commission of the pernicious act.
At the next stage comes, in some cases, an effect of an opposite nature—a portion of the matter of evil; viz. if the pernicious act be of the number of those by which a determinate suffering is produced in the breast of an assignable individual or individuals;—here we have one portion of the matter of evil—call this portion the evil of the first order.
An ulterior, and in every respect perfectly distinct lot of evil, produced in some cases from the same cause, has been termed the evil of the second order. It consists partly of the alarm produced in other breasts by the apprehension of finding themselves among the sufferers from other pernicious acts, that appear likely to be produced by the individual offence in question, in the event of its having been found in its issue favourable to the offender.
Of the mass of evil capable of being produced by an act of delinquency, or at any rate by a multitude of acts of delinquency of the same nature, that portion which comes in at the third and last stage of its progress, is of a sort which, under any tolerably well-established government, is rarely, to any considerable extent, exemplified. It is that which has place, in so far as such being the effects of the alarm produced by the apprehension of continually recurring repetitions of the species of injury in question, the mischief has, from the passive and sensitive faculties of the persons thus threatened, extended itself to their active faculties, compelling them, as it were, to render themselves, by their own inactivity, instruments of their own ruin.
In that modification of delinquency and injury which is composed of acts of the predatory class, may be seen the clearest and strongest exemplification of this case.
In Asia and Africa, many are the instances in which spots, which though situated within the demesne of regular governments, and at one time kept accordingly in regular cultivation, have successively been to such a degree infested by the predatory incursions of neighbouring tribes, as to have at length been abandoned by their inhabitants, and left in a state of perfect desolation.
Under any European government instances are scarcely to be met with where, in its progress over the community, the evil produced by private delinquency has made so great an advance as to have arrived at this third stage.
Unfortunately, of evil, which having been the result of the misconduct of the rulers themselves, has extended itself so far as to make its appearance in the character of an evil of the third order, examples are by no means rare.
2. In the case of public punishment, i. e. of evil purposely produced by the powers of government, to the end that it may operate in the way of punishment,—in the first place comes a portion of the matter of evil. But as among the last effects of an act of delinquency was the operating upon the active faculties of the persons in question, in such sort as to restrain and prevent them from doing that good to themselves and others which otherwise they would have done; so of a lot of evil produced for the purpose of punishment, the earliest effect is of the nature of good, consisting in this, viz. that they who otherwise would, in the shape in question, have done evil to others, are, by the experience or apprehension of the like evil to themselves, restrained, and so thus prevented from doing it.
3. In the case of public reward—i. e. of a portion of the matter of good administered at the expense of government, and thence at the expense of the community, to the end that, in the character of matter of reward, it may have the effect of giving birth to public service, which in some shape or other is regarded as more than equivalent in value to the expense in the shape of the matter of reward. In the first place comes the evil necessarily attendant on the coercive measures employed for the extraction of this precious matter. But in the next place comes the good—i. e. the pleasures—which whether the application made of the matter be well or ill contrived, is necessarily produced on the receipt of this precious matter;—in which good we see the good which is of the first order, and applies itself to the passive, and to no other than the passive, faculties of the persons to which it applies itself.
Effects of the first order, evil as above: effect of the second order, good,—and that of the first order as above, pleasure enjoyed by the individual by whom the matter of reward in question has actually been received. Effect of the third order, good, and good of the second order,—pleasure expectation, with the consequent proportionable alacrity in the breasts of all those to whom, from observation made of the cause for which, and manner in which, the matter of reward has been bestowed in this instance, it may happen to deduce an expectation of obtaining for themselves from the like service, similar reward in return for similar service. Effect of the fourth order, good, and that good of the third order, active service performed accordingly: and here, in the last stage, we see the application of the precious matter, invigorating and exciting the active faculty, as in the case of delinquency at the same stage we see the active faculty debilitated, and perhaps paralyzed and struck motionless.
Extensive and important are the practical inferences that present themselves as following from this theory.
In the case of evil, the evil of the first order is next to nothing in comparison with the evil of the second order—not to speak of a stage of evil so unfrequently exemplified as the evil of the third order.
Of the four classes into which the whole mass of delinquency may be divided,—viz. offences against persons individually assignable—offences against a man’s own welfare—offences prejudicial to a particular class of persons—offences prejudicial to the whole community at large,—in the second of these classes, viz. offences against a man’s self, the principal element of the evil of the second order, viz. the alarm, is altogether wanting.
VII. Springs of actions,—appetites—desires—motives—interests.
Explanation of these psychical fictitious entities of the pathematic class, by that connexion which is common to them with pleasures and pains in the several shapes of which they are susceptible.*
VIII. Sanctions or sources of obligation and inducement, five in number, viz.—
1. The physical sanction.
2. The moral or popular sanction.
3. The political, including the legal sanction.
4. The religious sanction.
5. The sanction of sympathy, limited in its application to a particular class of cases.
In so far as the word sanction is employed, what is thereby brought to view is, not the species of pleasure or pain by the prospect of which the influence on human will is exercised, and the effect produced, but only the source whence the pleasure and pain in question is expected to flow.
1. In the case of the physical sanction, the source or root of the pleasure or pain is in the pre-established nature of things, and not in human agency.
Thus, in respect of intoxicating liquors, in respect of the pain resulting from the drinking of them when pursued to excess, the tendency of the force of the physical sanction tends in a certain degree to restrain a man from giving into such excess.†
2. In the case of the moral or popular sanction, the source or root of the pleasure or pain regarded as eventually about to have place, is in the good or ill offices of mankind at large; that is, of such of its members to whom the knowledge of the incident or transaction in question may happen to come—viz. in the degree of estimation in which, on the occasion in question, the agent is regarded as likely to be held—or in other words, in the opinion, good or bad, favourable or unfavourable, likely to be entertained in relation to him: thence in the mental sensations, pleasant or unpleasant, of which the idea of the act is likely to be productive in his mind:—thence in the good or ill offices;—in the case of good, commonly expressed likewise by the word services.
Popular.—For the employing of the word popular, as the designation of the sort of sanction here in question, what (it may be asked) is the ground or warrant? Answer: In this consideration, viz. that the people at large, without distinction of persons, are the persons at whose hands the good and evil in question are respectively expected: the good and evil,—viz. of the good, whatsoever may be the result of the good offices which the people at large, freely and without coercion, may on the consideration in question respectively feel themselves especially disposed to render:—of the evil, whatsoever may be the result of such evil offices as the same persons are under, and by this and the several other sanctions left free to render to the persons on whose conduct the force of the sanction here in question is considered as applying itself.
Moral.—For the employing of the word moral on this same occasion, and to this same purpose, what is the ground or warrant? Answer: In this consideration,—viz. that for the performance of such acts, positive and negative together, as though not sanctioned by the political sanction, nor on the occasion in question by all persons considered as sanctioned by the political sanction, and yet at the same time are considered as obligatory, the moral sanction, or the sanction of morality, is the term by which the source of the obligation seems commonly to have been designated.
3. In the case of the political, including the legal sanction, the source or root of the pleasure or pain regarded as eventually about to have place, is in the good or ill offices of that portion of mankind in whose hands, in the political state in question, the powers of government are lodged, and who in consequence have at their disposal an unlimited proportion of the matter of good and of the matter of evil, capable of being employed and applied at pleasure in the character of matter of reward and matter of punishment.
The case, and the only case, in which the adjunct legal is applicable to the sort of sanction here in question, is that in which, under the authority of the legislative department of government, the matter of good and evil is disposed of, and applied in the express and declared view of operating in the character or matter of reward, or matter of punishment, thereby giving or endeavouring to give direction to those to whom application is actually made of the matter itself, or the prospect and expectation of it.
In this department, it is principally to the avowed purpose of giving to men’s conduct in the character of subjects, that direction by which they are made to abstain from such acts, principally positive acts, as are treated on the footing of offences, principally in consideration of the mischief of which they are regarded as productive, or threatening to be productive, that the matter of good and evil is applied, and that accordingly principally in the shape of matter of punishment. But in so far as, in the shape of matter of wealth or any other shape, it is applied; although it be not declaredly in the character of reward or in that of punishment, that application is made of it by persons invested with the powers belonging to the administrative department of government, the matter of good and evil operates not less in this than in the other case;—the matter of good and evil is capable of being made to operate in the character of a sanction, in such sort as to give to men’s conduct, in the character of subjects, such direction as, whether in the pursuit of those public ends which in that department of government are avowedly the objects of pursuit, or in pursuit of the personal or other private ends of those in whose hands the public powers in question are reposed.
In this case, in so far as the ends in pursuit of which the matter of good and evil is administered are of the personal or other private and therefore sinister ends just mentioned, it is in the character of matter of corruption that it operates:—but how ill soever the design and effect is, with which it is thus made to operate towards the giving to men’s conduct the direction so endeavoured to be given, the effect of which it is productive is not the less the same, as where, being in the character and under the name of a sanction, it is avowedly employed to the giving to men’s conduct the sort of direction above mentioned as endeavoured to be given to it when employed in the name and character of matter of punishment or matter of reward.
By the Treasury Board, under the direction of the First Commissioner, suppose an office given or promised to be given to a Member of Parliament, for the purpose of engaging him on all occasions to give his vote according to the direction prescribed by that member of the administration department:—the sanction, by the force of which the direction in question is thus given to the conduct of the functionary in question, cannot with propriety be termed the legal sanction; but to its being termed the political sanction, no objection seems capable of being made.
4. In the case of the religious sanction, the source or root of the pleasure or pain regarded as eventually about to have place, is in the good or ill offices of an almighty, but to man an invisible being: in whichsoever state of existence, whether the present or the future, considered as about to be rendered.
5. Lastly, In the case of the sanction of sympathy, or sympathetic sanction, the occasion on which any pleasure or pain appertaining to this sanction is capable of being experienced is, when of some act which the person in question has it in contemplation to exercise, a consequence about to result is pleasure or pain, in any shape, as the case may be, in the breast of some other person in whose well-being the person in question experiences an interest, produced by the force of the sympathetic affection. In this case, in the joint proportion to the force with which this affection operates in his breast, added to the magnitude of the pleasure or pain which is regarded by him as about to result to the object of this his affection, in the event of his exercising the act in question, is the force with which, by this sanction, he is urged to exercise, or to forbear to exercise, such act—to exercise it in so far as it appears likely to be productive of pleasure, or an equivalent good; to forbear exercising it in so far as it appears likely to be productive of pain, or an equivalent evil, appears likely to be the result of it.
In this case, the pleasure or pain, by the idea and contemplation of which human conduct is operated upon and liable to be determined, being the immediate result of the conduct of the person in question, produced, and regarded as about to be eventually produced, without the intervention of any exterior will—of any will exterior to his own—it follows that, when considered in this point of view, this sanction falls within the description of the physical sanction. But between these two cases the difference seemed considerable enough to indicate the propriety of representing the conduct in question as being in the two cases the result of two different sanctions:—so great is the difference between self-regarding and sympathetic affection—between the case where the pleasure or pain by the consideration of which a man’s conduct is determined is his own purely and immediately, and the case when it is his own no otherwise than in consequence of a correspondent pleasure or pain being regarded as experienced or about to be experienced, by another person—between the case where the pleasure or the pain is his own purely and directly, and the case in which it comes to him no otherwise than as it were by reflection, and through the medium of a portion of pleasure or pain of a different nature, regarded as having place in another breast.
Taken in the aggregate, the four preceding sanctions may, with reference and in contradistinction to this sanction—to the sympathetic sanction—be termed purely self-regarding ones.
The influence of the sympathetic sanction—i. e. of the pleasures and pains belonging to this sanction—corresponds to, and is coextensive with, that of all the purely self-regarding ones. A person dear to me, presents himself to my conception as suffering or eventually about to be made to suffer pain: by the love I bear to him, I am impelled to do what may be in my power towards relieving or exempting him from it. That pain may be a pain inflicted by the power of any one of those four sanctions, or an evil composed of so many distinguishable pains inflicted by the powers of every one of them.
Take, for example, the habit of drunkenness. By that habit it may happen to the same man to be subjected to bodily suffering in a great variety of forms, all comprehended under the general denomination of ill health:—here we have the pain of the physical sanction. It may happen to him to be exposed to public shame, and by that means to sink in the esteem of his friends and his acquaintances:—here we have the pain of the popular or moral sanction. It may happen to him to lose some office, more or less lucrative or honourable, of which he is in possession or expectation:—here we have the pain of the political sanction. Either for the scandal of the exposure, or for some injuries done to individuals, or other excesses committed in some paroxysms produced by intoxication, it may happen to him to be subjected to punishment at the hands of the law:—here we have the pain of the legal branch of the political sanction. It may happen to him to be tormented with apprehension of punishment about to be administered to him by the hands of the Almighty in a life to come:—here we have the pain of the religious sanction.
That, in comparison with the several other moral forces to which the name of sanction has here been given, the force here termed the sympathetic sanction is in general very weak, is not to be denied: but, for the omitting it from the list of sanctions, this weakness, were it greater than it is, would not afford any sufficient warrant. Of itself, i. e. without assistance from any of the other sanctions, it is every now and then seen productive of very considerable effects. It is to the force of this sanction that the principle of utility (understand of general utility) stands indebted for whatsoever reception it meets with, other than that which it may happen to any other articles in the list of sanctions to be instrumental in procuring for it. Under the guidance of the principle of utility it operates in alliance with the several other sanctions: under the same guidance it may not unfrequently be seen operating in opposition to them, and checking them in those sinister courses of maleficence into which, in opposition to the dictates of general utility, they are all of them more or less apt to be led by the political sanction, whether under its own guidance, or under the guidance of the religious sanction. Equally steady and efficient in its action with any of those self-regarding sanctions it cannot be said to be; but a force, howsoever weak and unsteady, is still not the less a force: and were it not for the operation of this sanction, no small portion of the good, physical and moral, which has place in human affairs, would be an effect without a cause.
In exact proportion to the efficiency of this principle would be the error committed by him who, on the occasion of any calculation made of the result of the moral forces on the sum or balance of which an effect depends, the production or prevention of which had become the object of human endeavour, should leave out of his calculation the operation of this cause.
Origin of the Theory of the Five Sanctions.
In speaking of law, viz. the internal law of any political state (internal, I say, in contradistinction to international), Blackstone, by whom it is, by an appellative not very appropriate, termed municipal, after Puffendorf and others, divides it into four parts, one of which he terms the sanction, or sanctionative part. The sanction or sanctions of law is accordingly an expression of not unfrequent occurrence. So likewise the sanction or sanctions of religion: and accordingly this or that portion is spoken of as being confirmed by, or having received, the sanction of law or the sanction of religion. But as to that which, as above, is here termed the popular or moral sanction, I have no recollection, general or particular, of ever having seen it employed. To the sanction termed political, and employed in contradistinction to the legal sanction, viz. in so far as the whole of anything stands distinguished from a part of it, the same observation may also be extended.
In fine, so may it to the physical and the sympathetic: for, in relation to all these several sources of action, two things have, as above, and it is hoped not unsatisfactorily, been shown,—viz. that they are each of them distinct from all the rest, and that they are all of them what they are here termed sources of action; viz. motives, or sets of motives, derived in each of these five instances from so many different sources: to which may be added, that each of them is, according to circumstances, susceptible of such a degree of force as may prove sufficient, perhaps even the weakest of them, to enable it to overpower any one or more of the rest, i. e. to give determination to human conduct, even while all those others are operating in opposition to it.*
IX. Conditions requisite for the accomplishment of any object, in so far as depends upon human means:—
Qualifications, both of them necessary, and together sufficient, on the part of the agent or agents in question, for the due accomplishment of any object whatsoever, and in particular for the due discharge of every political obligation, and thence for the due execution of every public trust,—appropriate will, and appropriate power.
Power is either power ab extra, or power ab intra. Power ab extra is correspondent to, and its efficiency proportionate to the extent and degree of compliance on the part of those over whom it is considered as being said to be exercised. Power ab intra will be in proportion to the degree of relative or appropriate knowledge, and the degree of appropriate active talent, on the part of him by whom the exercise of it comes to be made.
In so far as operation or co-operation towards the accomplishment of the object is considered as matter of duty or moral obligation, to possess the appropriate will or inclination is to possess the virtue of probity—relative probity: and when put in contrast and contradistinction with this requisite state of the will, appropriate knowledge has been termed intelligence.
Wisdom, probity, and power,—of these three, on attending Blackstone’s lectures, and afterwards reading them when in print, under the name of Commentaries on the Laws of England, I observed the concurrent existence laid down by him as conditions necessary to, and at the same time sufficient to insure, in any given political community, the existence of good government.
With reference to government in the highest stations,—and in these alone, are these conditions and qualifications brought to view by Blackstone,—neither by him is anything done to show the relation borne to each other, as above, by these associated fictitious entities, or towards satisfying the reader that the division thus exhibited is of the exhaustive kind.
With the help of such amendments as seemed requisite, the enumeration and division appeared to me capable of being, with equal propriety and utility, applied in the political line to all subordinate stations; in the next place, to the accomplishment of any object whatsoever in the ascending or more comprehensive line.
X. Obligation and Right:—
Explanation of these moral, including political, fictitious entities, and of their relation to one another, by showing how they are constituted by the expectation of eventual good and evil, i. e. of pleasures and pains, or both, as the case may be, to be administered by the force of one or more of the five sanctions, as above; viz. the physical, the popular, or moral; the political, including the legal; the religious, and the sympathetic.
Of either the word obligation or the word right, if regarded as flowing from any other source, the sound is mere sound, without import or notion by which real existence in any shape is attributed to the things thus signified, or no better than an effusion of ipse dixitism.
XI. Proper Ends of the distributive branch of law:—
Ends or purposes, the fulfilment or accomplishment of which this branch of law ought to have for its principal objects,—security, subsistence, abundance, and equality.
In the mention made of security, a tacit but necessary reference is made to the several classes of injuries against individuals other than the man himself, to which every individual stands exposed. Security is security against mischief—against evil from whatever quarter it may happen to it to come, and against whatsoever of a man’s possessions, or vulnerable part of a man’s frame, it may happen to it to be directed or to strike.
On this occasion the great difficulty consists in tracing the lines of distinction by which these several factitious entities are separated from each other. Subsistence and abundance have one and the same matter—the matter of wealth: of security, that same matter is itself a main instrument and means whereby all other instruments of security may be obtained.
In the case both of subsistence and abundance, over the relation they bear to security there is some obscurity. Security has several branches—as many branches as there are distinguishable objects exposed to deterioration or destruction; and in the list of these objects are comprised that matter, the matter of wealth, which is common to subsistence and abundance—security against mischief to human life, person, reputation, property (i. e. the matter of wealth, considered as lodged in the hands of the individuals, or assemblages of individuals in question) and condition in life. Security is again divisible into as many branches as there are different sorts of offences, or pernicious acts, by which, pro tanto, security is destroyed or endangered.
All these objects are, with relation to each other, so many antagonizing forces. In some instances, by the measure by which one is attained, so are one or more of the others: in other instances, one cannot be attained, or endeavoured to be attained, but by the relinquishment, or, pro tanto, the sacrifice of one or more of the others.
Equality, in particular, finds in each of the other three a rival and an antagonist—and in security and subsistence, rivals and antagonists, of which the claims are of a superior order, and to which, on pain of universal destruction, in which itself will be involved, it must be obliged to yield. In a word, it is not equality itself, but only a tendency towards equality, after all the others are provided for, that, on the part of the ruling and other members of the community, is the proper object of endeavour.
At the same time, in proportion as the subject is inquired into, it will be found that in all good systems of law, and even in all systems, the very worst not excepted, more or less regard is paid to equality; that in the aggregate of the body of laws in every state, all these others are constantly aimed at, are the objects of constant care, solicitude, and active operation; and that in fact the laws have no other objects or ends in view, but which, short as it is, are comprehended in this list; and that in all bodies of law, the great and constant difficulty is on each occasion, in so far as the competition has place, to decide to which of them the greatest portion of favour is due,—for which, in preference to the rest, provision is to be made.
These things considered, of the ends or objects of the distributive branch of the law, how with propriety could any list, more or less ample, differently composed, have been given?
XII. Formation of an uniform and mutually correspondent set of terms, for the several modifications of which the creation, extinction, and transfer of subjects of possession, whether considered as sources of benefit or as sources of burthen, are susceptible:—and thence of a mutually connected and correspondent cluster of offences, consisting of the several possible modes of dealing as above with such subjects of possession, in the case in which they are considered as wrongful, and as such prohibited by statute law, or considered and treated as prohibited by judiciary alias judge-made law.
1. Collation; 2. Ablation. In the case, and at the point of time, at which the subject-matter is for the first time brought into existence, collation has place without ablation: if it be already in existence, then collation and ablation have place together, and of their union translation is the result: in so far as ablation has place without collation, then not translation, but extinction, is the result.
Performed in favour of the collator himself, collation is self-collation:—if regarded as wrongful, it is wrongful self-collation; or in one word, usurpation is the name by which it has been, and at any time may be, designated.
Performed by the ablator himself, ablation is abdication:—if by the laws regarded or treated as wrongful,—wrongful abdication is accordingly the name by which it may be designated.
XIII. Division of offences,—by which is meant all such acts as on the score of their reputed mischievousness are fit or have been or are likely to be regarded as fit to be,—viz. by the application of punishment—converted into offences,—from the consideration of the person or persons, with reference to whom, in the first instance, they are regarded as being or likely to be mischievous, into offences against others—i. e. regarded as prejudicial to others, and offences against a man’s self—i. e. regarded as prejudicial to a man’s self.
Division of offences regarded as prejudicial to others, into offences against assignable individuals, alias private offences—offences against the unassignable individuals belonging to this or that class, or this or that local district, alias semi-public offences—and offences against the unassignable individuals of whom is composed the population of the whole political state.
From the distinction thus brought to view have been deduced diverse conclusions of no inconsiderable importance with reference to practice:—offences so far as the mischief, if any, which they have for their result is confined to the author of the offence, are no fit objects of controul by punishment and penal laws.
Of the offence which in this case is regarded as mischievous—the mischief, if any, being by the supposition confined to the offender himself—the consequence is, that no sooner is it felt,—viz. by him the offender,—than by the whole amount of it, it operates upon him in the character of so much punishment.
Division of offences into positive and negative; or rather observation made, that in the nature of the case, for every offence committed by a positive act, there is room for a correspondent offence committed by a negative act. The case of a positive offence, that where the mischief of the offence, as above, has for its cause a positive act—an act of commission: the case of a negative offence, that in which the mischief has for its cause a negative act—an act of omission: an act which consists in a man’s omitting to do that which it was in his power to do towards the prevention of a mischief, which for want of such positive and preventive act on his part, either actually did take place, or at any rate would have taken place, but for some preventive obstacle, in the application of which he had not any share.
The principle of division here brought to view, extends itself over the whole field of delinquency—be the positive act what it may—the opposite negative act is alike conceivable—is alike capable of being exemplified. If in the case of the positive act any mischief seem to flow, the correspondent negative act can never be altogether unproductive of the like consequence.
As to the difference between the mischief of the one and of the other, it consists altogether of the mischief of the second order; for as to the mischief of the first order, if it have place in both cases, it is exactly the same in both cases. But in the case of the negative offence, the mischief of the second order—the alarm and the danger—is next to nothing. On the part of the offender, all endeavours to prevent the mischief, which in the instance in question was actually produced, were wanting. True; but it follows not that he will at any time employ any exertions in the endeavour to produce a similar mischief.
In respect of punishment, cases there are in which, under the laws perhaps of all civilized nations, the negative act is put exactly upon the same footing as the positive act. In these cases, for example, viz. when one person having another in his power, keeps him without sustenance till he dies—by a mother or nurse, a new-born child—a jailor, one or more of his prisoners. In respect of punishment, the negative course of conduct, of which in these cases loss of life is the result, is commonly put upon a footing little if any thing different from that which has place where the mischief has for its cause a positive act. So in case of a design hostile to the person or power of the sovereign, or this or that member of the sovereignty in a state, the negative offence, which in the case of a person by whom the existence of the design is known, is committed by omission to give information of it to the competent authorities, is commonly punished, not perhaps with exactly the same punishment as that which is appointed for him by whom an active part is taken in that same design, but yet with some other punishment which does not fall much short of it.
Wheresoever the obligation, considered as imposed by the law, is of a positive nature the only sort of offence which the nature of the case renders possible is of the negative kind: and in this whole class of cases, the concomitancy of the two forms of delinquency fails. The sort of offence commissible by non-payment of taxes may serve by way of example. But in every other case, little has been the notice as yet taken of it.
XIV. Ends of Political Economy:—
These are the same as those of the distributive branch of law. Wherein, then, lies the difference? Answer: In so far as political economy is the object, so it is, that to two of those objects, viz. subsistence and abundance, a more particular and direct attention is paid, than either to security or to equality.
By distributive law, is declared what on as many occasions as shall happen to have been taken into view, shall be each man’s own. By political economy, is endeavoured to be ascertained how far, and for what particular purposes, chiefly for the general purposes of abundance and subsistence (i. e. security for subsistence), the use which otherwise under distributive law each man might make of his own, shall, for the more effectual fulfilment of these several ends, be directed and restricted.
XV. Limits applied to the quantity and productions of Industry, by the quantity of the necessary instruments of production which at the place in question—at the time in question, are in existence.
These instruments are—
1. The aggregate mass of existing capital.
2. The aggregate mass of capacity for labour.
That no end can be successfully pursued to any point beyond the productive power of the aggregate mass of means of all sorts necessary to the pursuit and attainment of it, is a self-evident, not to say an identical proposition: any proposition inconsistent with it would be a contradiction in terms.
Yet from this theoretical aphorism, follow divers practical inferences, which though they will scarcely be found to admit of denial, have found great difficulty in obtaining assent.*
[* ]Set the loaf on the table;—put coals on the fire;—open the window:—in these commands may be seen so many examples of the laws of which a private family is the scene;—and in seeing these laws, what will also be seen is the integrality of their character.
[† ]For the several distinguishable faculties perceptible in the mental frame, consult Chrestomathia.
[‡ ]On this subject the most ancient treatise which has reached the present time, is, under the name of Logic, to be found among the works attributed to the great philosopher Aristotle.
[* ]In the session of 1810, the Earl of Stanhope is reported to have stated in his place in the House of Lords, that he had with his own eyes read through the statutes at large from beginning to end. Without much danger of error, it might be affirmed that perseverance (not to speak of time and money) adequate to such a task has not, in the instance of any other individual, professional men included, been realized for at least this century past. After omission of repealed and expired statutes to a vast amount, the present price of the last edition of the statutes exceeds the average annual income of any individual of the labouring classes in England.
[* ]See one of Lord Grenville’s speeches on the regency question, January 1811.
[* ]See the head of Uncognoscibility.
[* ]Chapter VI. § 2.
[* ]Of all instruments of longwindedness, the most unmerciful is that which is called a Preamble. It is a sort of excrescence growing out of the head of a section. If it be a part, it never forms any more than a part of a section, or even so much as a grammatical sentence. When the preamble is concluded, the principal part of the sentence is not yet begun.
[† ]Examples in prize act 1805, 45 Geo. III. c.72, High and Vice-Admiralty legislated together.
[‡ ]Section 4, Longwindedness.
[* ]45 Geo. III. c. 72.
[† ]During the administration of the late Mr. Pitt, a person by whose habits the language of statutes as well as of reports had been rendered familiar to him, happening to be in treaty with government, was encouraged to draw up with his own hand the draught of the law necessary to carry the treaty into effect. Desirous of making to his country the best return in his power for the benefit in which it was his hope to participate, it occurred to him to endeavour to take advantage of the opportunity, and apply it to the purpose of planting in the statute-book, for the chance of its serving one day as a precedent, a literary composition in which these helps to intellection should find a place, which, be its importance ever so considerable or ever so inconsiderable, every man that writes endeavours to the best of his ability to infuse into every other.
[* ]In and for the purpose of another work,† a systematical view was endeavoured to be given of the aggregate body of offences—meaning, of sorts of human actions, in relation to which, in respect of the mischiefs of which they respectively threatened to be productive, it naturally would, on the part of a legislator, come to be proposed for consideration, and in general had been matter of consideration among legislators, whether it might not be advisable to render them objects of prohibition and punishment, or something that should have the effect of punishment.
[* ]As these remedies apply, each of them, to several imperfections at once, they cannot be made to follow the order of the imperfections.
[* ]A portion of the matter of law, considered merely in respect of the expression given to the side or aspect presented by the will of the legislator to the species of act which it takes for its object, may be distinguished into—1. Matter of a directive nature; 2. Matter of a sanctionative nature.
[* ]With regard to the two numbers, the singular and the plural,—whether both shall be employed, and which, is a fit subject for grammatical rules, which might easily, and ought to be given by authority once for all.
[† ]In other words, to the verbal title substitute the numerical.
[* ]By the reference thus made to the number of sections, a contradiction will naturally appear to be given to the general proposition which it is employed to exemplify and illustrate. But it is only a contradiction in appearance. True it is, by somebody or other, nobody knows who, before each paragraph, in the printer’s sense of the word paragraph, a number is prefixed; but for any such purpose as the one here in question, the number might as well not be there. It is no part of the act. It has not received the mysterious touch of the sceptre.
[* ]It has thus been employed throughout the Constitutional Code, which may be referred to as an example of the use capable of being made of this form of speech.
[† ]Constitutional Code.
[‡ ]In speaking, placing the accent or emphasis upon a syllable other than that which constitutes the characteristic part of the word. In pronunciation deviating from analogy without use.
[* ]The distinction of clergyable and unclergyable was abolished by 7 & 8 Geo. IV. c. 28, § 6.—Ed.
[* ]See Appendix, “Logical Arrangements.”
[* ]1. Richness in collateral matter brought to view in the way of allusion; 2. Splendour (calculated to operate on the imagination;) 3. Pathos (calculated to operate on the affection.)
[† ]See Chapter V. § 7.
[* ]A law is also susceptible of a categorical, or a hypothetical form. It may be expressed thus:—“Every man who, &c. shall suffer,” &c.; or it may be expressed thus:—“If any man, &c. he shall suffer,” &c. The distinction expressed by the two terms categorical and hypothetical has place in reference to propositions in the logic of the understanding: equally has it place in the logic of the will. The categorical is the form employed in enactive propositions in every country except the British Isles, and some, though not all, of its distant dependencies. The hypothetical is a form peculiar to English legislation:—the evil consequences resulting from it are lengthiness, and consequent and proportionate obscurity. On the occasion of each article, in a chain to the length of which there is no limit, scraps of sentences, to none of which there is any conclusion, are strung on, one upon the tail of another, before so much as a single sentence in a complete state makes its appearance. It has for its effect (and when has it failed to have had for its object?) the maximizing the difficulty of comprehending the enactment.
[† ]Composite, so termed in allusion to the order termed the composite in architecture.
[* ]Petition for Justice. See Vol. V. p. 476.
[* ]See Principles of Procedure, Vol. II. Ch. XXIII.; and Elements of the Art of Packing, Vol. V.
[* ]Melanges de Literature et de Philosophie.
[† ]Obligation—right—power—privilege, &c.
[‡ ]In his book De L’Esprit.
[∥ ]In his Treatise on Man, or rather the Abridgment of it.
[* ]For a full explanation of these elements or dimensions, see Introduction to Morals and Legislation, Vol. I. p. 15. Chap. IV., Value of a lot of pleasure or pain, how to be measured.
[* ]See Table of Springs of Action, Vol. I. pp. 193-219.
[† ]In respect of the pleasure produced by the drinking of the liquors in question, when not carried to any such degree as to produce sensible ill effects, may it not be said, and without impropriety, that in the case of a person to whom such potations are productive of agreeable sensations, it is by the force of the physical sensation that he is invited or excited to such acts?
[* ]The list of sanctions was afterwards enlarged by Bentham, see Note. Introduction to Morals and Legislation, Vol. I. p. 14.
[* ]The last sheet of the MSS. from which the foregoing sketches are taken, is dated 21st Oct. 1814, Ford Abbey: at the foot of this sheet there is a pencil mark Go on, but no traces have been found of the subject having been resumed.
[* ]In and for the purpose of another work,† a systematical view was endeavoured to be given of the aggregate body of offences—meaning, of sorts of human actions, in relation to which, in respect of the mischiefs of which they respectively threatened to be productive, it naturally would, on the part of a legislator, come to be proposed for consideration, and in general had been matter of consideration among legislators, whether it might not be advisable to render them objects of prohibition and punishment, or something that should have the effect of punishment.
[†]See Introduction to Morals and Legislation, Chap. XVIII. Vol. I. p. 96.