Front Page Titles (by Subject) CHAPTER III.: PROPER END IN VIEW. - The Works of Jeremy Bentham, vol. 3
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CHAPTER III.: PROPER END IN VIEW. - 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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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.
[* ]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.