Front Page Titles (by Subject) CHAPTER VI.: OF REMEDIES. * - The Works of Jeremy Bentham, vol. 3
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CHAPTER VI.: OF REMEDIES. * - 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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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.
[* ]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.