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CHAPTER VII.: OF LANGUAGE. - 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 Technical Language.
The maximum of notoriety being the object, not only the matter but the form—not only the arrangements themselves, but the language employed in giving expression to them, will, if that object have been attained, have been such as is conducive to it. Considered in this point of view, language used in law is of two sorts—1. Natural; 2. Technical.
The word technical—the appellative by which the denominations employed in designating the names of instruments and operations in the language of English jurisprudence are commonly designated, tends to convey an erroneous conception, pregnant with an error from which there may be a use in keeping the mind upon its guard. It presents an ambiguity, under favour of which the mischievousness of the object will, till it has been exposed to view, in the minds of most, if not all readers, be but too likely to be screened from notice. Not only are the denominations in question liable to be productive of evil, but the evil they are actually productive of is so great as to be beyond calculation.
Of the non-notoriety of the law, the mischievous effects are all-comprehensive; for by it, and in proportion to the extent of it, the law is prevented from being productive of the good effects it is calculated to produce: it is prevented from hindering the bad effects which would not have had existence, had the law been known. The individual who, had he known of the existence, and formed a correct opinion of the purport of the law, would have availed himself of it, if it were a law that gave him a right—or would have abstained from the act, if it were a law by which the performance of such act is prohibited,—loses his right in the one case, and incurs the penalty of the law in the other case.
Now, for every person but the few to whom the import of these denominations styled technical, is made known by a more or less long course of attention, observation, and experience, the existence as well as the tenor of the instrument in question, is by means of this technical language, as it is called, but too effectively and generally concealed.
How then, it may be asked, how is it that the mischievousness of this class of denominations is concealed from ordinary eyes by means of this appellative? Answer—In this way: by confounding this class of words, which belongs exclusively not only to jurisprudence, but in a more especial manner to English jurisprudence, with the corresponding words belonging to other branches of art and science—words from the use of which no effects but what are purely beneficial are produced,—a veil is thrown over the mischief produced by this legal class, and an imputation applicable with exclusive propriety to the words of this noxious class is but too apt to extend itself to the words belonging to those unnoxious and purely useful ones.
The case is, that in the language of every branch of art and science that can be named, a more or less extensive stock of words of a peculiar nature, in addition to all the words in familiar use, is an indispensable appendage: applied to these, what the appellation technical imports is nothing more than peculiar, as above, to some branch of art and science; to wit, in contradistinction to those which, being likewise employed in discourse relative to that same branch of art and science, have nothing to distinguish them from the words in universal use belonging to the common stock of the language;—or the import of them, from the import attributed to those same ordinary words. But the difference between these jurisprudential peculiar words, and the other peculiar words, is this: in the case of the other peculiar words, the deviation from ordinary words is matter of absolute necessity, and on the occasion of framing them the whole attention and skill possessed by the framers was commonly employed in the rendering them as expressive as possible; whereas in the other case, the deviation from ordinary language being as wide commonly as can be imagined,—no attention has been paid to render it expressive, by rendering it as near akin as possible to the words appertaining to that same common stock:—to that end no attention whatsoever was employed, the attention, if any, applied to the subject, having the direct opposite end, viz. that of rendering them as inexpressive as possible, as unlikely as possible to convey correct conception;—the only purposes to which they are applicable or designed to be applied, are either conveying to the persons in question no conception at all, or if any, such as shall have the effect of leading them into error, either productive of burden to the persons thus deceived, or benefit to the deceivers.
Terms of art, jurisprudence must have as well as every other branch of art and science. But in English practice, the terms of art are to what they ought to be, what the terms of astrology are to the terms of astronomy.
In a word, in the case of every other branch of art and science, with few exceptions, and those not belonging to the present purpose, to the words which are peculiar to it, as being known to those individuals alone who are more or less conversant with the matter of it, the appellative technical, which in the original Greek signifies neither more nor less than appertaining to art or science, may, not only with indisputable propriety, but without leading into error, be applied, were it not for the danger of inculcating the conception that these words partake of the noxious quality which belongs to those technical words which are peculiar to jurisprudence—words from which they are essentially different, as well in respect of the effects actually produced, the effects intended to be produced, and the motives by the operation of which the intention was produced: in their effect as expressive as they could possibly be made, and the explanation of them by means of an equivalent expression taken from the body of the language made as extensively notorious as it can be made, and so intended to be;—the motive to which they are indebted for their existence being a desire to render the matter of the art or science to which they belong as extensively known as possible,—and this on account of the honour, or profit, or both, expected in return for the benefit so conferred.
Opposite in all these several particulars is the case of jurisprudential technical terms:—actual effects, everywhere relative ignorance, or what is worse than ignorance, error. Intended effects the same:—desire by which, in the character of motive, the endeavour was produced, the profit looked for, and but too copiously derived, from the ignorance and error so produced, and the reputation for wisdom which by this artifice the people have been led to ascribe to the inventors of this system, and the benevolence which they have at the same time been led to regard that same wisdom as having for its accompaniment. In a word, of the peculiar language in the case of physical science, the words are expressive, and so intended to be:—in the case of jurisprudential science, the words are either simply inexpressive, thus securing the continuance of ignorance, or what is worse, viz. for the people, but proportionably better for the inventors, productive of error, the effects of which, in so far as they have place, are mischievous.
Of the importance of improvement in Legal Language.
We have already seen that the technical terms of jurisprudence are either inexpressive, or calculated to produce error: the necessity of improvement cannot therefore be denied, except by those who are blinded to its importance by interest, or interest-begotten prejudice.
Proportioned to the uncertainty attaching to the import of the words employed upon legal subjects, will be the uncertainty of possession and expectation in regard to property in every shape, and also the deficiency of political security against evil in every shape: proportioned, therefore, to the fixity given to the import of those same words, will be the degree of security for good in every shape, and against evil in every shape. Until, therefore, the nomenclature and language of law shall be improved, the great end of good government cannot be fully attained.
In medical art and science, improvement is rapid and extensive at all times and in all places: in legislation and jurisprudence, everything is either retrograde, or at best stationary.
The cause is no secret. In medicine it is the interest of every practitioner to promote improvement, and to promote it to the utmost, to make whatsoever addition to the stock his faculties admit of his making:—of no judicial practitioner is this the interest—his interest is directly opposite.
In medicine, not only the nosology of the subject is constantly receiving augmentation, but also the terminology:—in legislation and jurisprudence, everything, to make the best of it, is at a stand.
But he who will not be at the pains of making, nor so much as of adopting, new expressions, must go on with the old ones alone, and consequently with all the errors which, being associated with, are established by the old ones.
And, as amongst other things, all political abuses are thus established and kept on foot and in estimation by these old ones—by that part of the language which has been employed in the establishment of these same abuses; hence, on the part of persons so circumstanced, the horror of innovation in language forms a natural accompaniment to the horror of innovation in law: and hence, on the other hand, all persons desirous of the improvement of legal institutions must also be desirous of the improvement of legal language.
In so far as correct notions are substituted to incorrect ones, denominations in some respects new must of necessity be employed: denominations by which none but incorrect notions have ever been designated and suggested, never can, without alteration, be made to serve for the designation and conveyance of correct ones.
Language has, in the art of healing as applied to the body natural, advantageously received the form of a branch of art and science: it is high time, that by the like operation it should be, as applied to the disorders of the body politic, raised to that same elevation in the scale of dignity.
By an elevation in the scale of art and science, understand anything rather than elevation in the scale of difficulty. Not to maximize difficulty, but to minimize that obstacle to usefulness and human felicity, is the object with every true lover of art and science. But without novelty in language, neither in this nor in any other portion of the field does the nature of things admit of any such elevation, or of any considerable addition to the stock of matter thus elevated; and without closeness and continuity of attention in some proportion to the novelty, it is not possible that anything which is taught—anything, however well taught, as well as deserving to be taught, and held in everlasting remembrance, should be learned.
No new propositions, howsoever useful, can receive expression unless it be by new words, or new application of already established ones;—i. e. by using them on occasions on which they had not been at all, or had not been commonly employed.
Hence a sort of postulate necessary to be put forward in legislative art and science, in imitation, for the first time, of the practice in the posological branch of physical art and science.
Postulate: That all new words and phrases necessary to the substitution of truth to error—of clearness to obscurity or ambiguity—conciseness to verbosity,—be coined, uttered, and received.
Let the mint of the greatest happiness—the mint of reason and utility, be the mint in which they are coined.
What I am far from saying is, that all who are found to start and urge these objections are enemies to human happiness and improvement; but what I do say is, that all who are enemies to human happiness and improvement will be found to start and urge them.
In so far as the conceptions hitherto entertained are inadequate or erroneous, necessary to the communication of correct and adequate ones is a correspondently appropriate and adequate, and therefore unavoidably a novel system of vocabulary.
To the words of which such vocabulary is composed, one condition is at once requisite and sufficient. This is, that without incorrectness, ambiguity, or obscurity, they carry to the conceptive faculty of the reader the idea meant to be conveyed, either at the first mention, antecedently to all definition, or other exposition, or at any rate, after such exposition has been heard or read.
For this purpose it will, generally speaking, be sufficient if, in the case of each word, other words derived from the same root are familiar to the reader in question—familiar, and at the same time expressive of clear conceptions, or if for the explanation other words in a sufficient degree synonymous to them are subjoined.
In what degree, for correct conception, or even for the possibility of obtaining any conception at all of the object in question, men are indebted to aptitude of nomenclature, persons in general are very little aware.
Throughout the whole field of that branch of the mathematics in which forms are put out of consideration, what is therein done, is done altogether by nomenclature—by abridgment given to the signs by which the idea is expressed. Thus, in common arithmetic, by means of the Arabic names of numbers, operations are performed, which, by words at length, without that instrument of abbreviation, could scarcely have been performed; whilst by those instruments of ulterior abbreviation which are afforded by algebra alone, operations are performed which could never have otherwise been performed—results obtained which could never have otherwise been obtained.
True it is, that of all these operations there is not one to the expression of which words and phrases at length are not completely adequate; but in many an instance, such is the quantity of literary matter that would be accumulated, that ere the result could be realized, confusion would ensue, the mind would be bewildered, and conception lost.
In branches of art and science comparatively frivolous, and for the accommodation of those who amuse themselves in the cultivation of these branches,—in a word, in the several branches of natural history,—no scruple is made, not only of introducing new denominations, but of composing a vast nomenclature altogether of such new denominations—fruits of the innovation principle.
For the purpose of morals and legislation united, the number of new denominations requisite is comparatively inconsiderable: these new denominations will mostly be taken from the Latin,—from that language from which most of the words of the languages of the most civilized nations are derived.
In the natural history branch, the language from which the new denominations are borrowed is the Greek—a language with which none except the extremely few have any sort of acquaintance, and which has no root in the language of the people. There ought, therefore, to be less objection to the introduction of new terms into the branches of legislation and morals, than into the branch of natural history: and there would be less, but for that horror of innovation by which the tyranny of the few over the subject-many may be repressed.
Prejudices adverse to improvement in Legal Language obviated.
On this occasion we may remark how disadvantageous is the situation of him whose endeavour it is, in this line of service, to give increase to the greatest happiness of the greatest number, in comparison with that of those whose endeavours are exclusively directed to the giving increase to their own personal greatest happiness, and thence to that of the class to which they belong, at the expense of the greatest happiness of the greatest number; and thence and thereby to the maximizing the defalcation from the aggregate stock of happiness:—in other words, how difficult and disadvantageous the task of the friend of the people, in the character of the would-be improver of the law, is, in comparison with that of the enemy of the people, in the character of the fee-fed practitioner and fee-fed judge.
The nomenclature devised in a barbarous age, by a mixture of stupidity, ignorance, error, and lawyer-craft, has, by force of irresistible power, under favour of interest-begotten and authority-begotten prejudice, been interwoven in the language, and been rendered the subject-matter of instruction to the highest educated classes, and the object of admiration and veneration to all classes:—nay, even the more flagrant its inaptitude, the more intense the veneration: for the more flagrant the inaptitude, the greater the labour necessary to the attainment of that incorrect and incomplete conception of the ideas attached to it, which the nature of them admits of; and the greater the labour a man has bestowed upon any subject-matter, be it what it may, the greater the value which he of course attaches to the fruits of that labour, whatsoever they may happen to be.
Thus it is, that while on account of its antiquity the most unapt nomenclature which misplaced ingenuity could devise is an object of favour and veneration, the most apt that well-placed ingenuity can devise will as naturally be an object of aversion and disgust:—inexorably averted from the idea of the new appellatives, the attention of the reader will confine itself to the novelty, and in that novelty will find an adequate as well as an efficient cause for those sentiments in the prevalence of which, instead of reward, punishment will, from the same source, be found the lot and the retributive reward for his labours by the benefactor of mankind.
Necessary, indispensably necessary, to correct, complete, and clear conception, is a correspondently correct, complete, and apposite nomenclature. Never to the purpose of conveying correct and complete ideas can any locution be adapted, by which no ideas but such as are incorrect, incomplete, and confused, have as yet ever been conveyed. To the acquisition of new instruction, necessary, indispensably necessary, to a correspondent extent is on the part of the instructor the framing—on the part of the learner the learning—of a new language.
In every other branch of art and science, universally and without exception is the necessity felt. Esteem and gratitude on the part of the learner is invariably the consequence—invariably part and parcel of the recompense of the teacher.
Take, for instance, the art and science of chemistry, and the improvement made in its nomenclature by Lavoisier. Not less extensive than just was the tribute of admiration and applause bestowed upon that illustrious man, and the no less illustrious partner of his bed, for that rich product of their conjoint labours in that branch of art and science.—Think of what chemistry was before that time—think of what it has become since!
Think of the plight that natural history and natural philosophy would have been in, had a law of the public-opinion tribunal been in force, interdicting the addition of any terms belonging to these branches of art and science, to the stock in use at the time of Lord Bacon. But the employment of the terms then in use in the field of natural history and natural philosophy, is not more incompatible with the attainment and communication of true and useful knowledge in that field, than the employment of the terms now in use in the field of jurisprudence is with the attainment and communication of the conceptions and opinions necessary to the attainment of the only legitimate and defensible ends of government and legislation.
The division of the qualities of plants into hot, cold, moist, and dry, each in a scale of degrees, was not more incompatible with correct, complete, and useful conception of the various properties of the subjects of the vegetable kingdom, than the still established division of offences into treasons, præmunires, unclergyable felonies, clergyable felonies, and misdemeanours.*
The corruption ascribed by the lawyer-branch of the flash-language, to the blood of those whom, on this or that occasion adverse fortune has placed on the losing side in a contest between two candidates for the faculty of sacrificing to the fancied felicity of a single individual the real happiness of twenty or a hundred and twenty millions—as a specimen of this nomenclature, with the atrocious tyranny involved in it, will afford to all posterity a melancholy proof of the state of corruption in the hearts of those who have given creation, preservation, and extension to that tyranny, and in the understandings of the deluded people who could remain unopposing victims of it.
Yes! within the memory of the author of these pages, the population of Great Britain, to the number of about twelve millions, was divided into two not very decidedly unequal halves: the one composed of those whose fondest wishes centred in the happiness of being slaves to a Scotchman of the name of Stuart;—the other of those whose wishes pointed in the same manner to a German of the name of Guelph. Of the twelve millions, six were devoted to extermination by the lawyers on one side;—the other six by the lawyers on the other side. In the aggregate mass of the blood of the whole population, not a drop that was not in those days in a state of corruption, actual or eventual, according to the system of physiology established for the benefit of most religious kings, by learned lords and learned gentlemen.
Scarcely of the whole number of those in whom, according to Blackstone’s language, the capacity of committing crimes had place, would a single one have escaped the having his or her bowels torn out of his or her body, and burnt before his or her face, supposing execution and effect capable of being given, and given accordingly, to the laws made, under pretence of being found ready-made, and declared for the more effectual preservation of loyalty and social order.
To whatsoever particular language the aggregate mass of discourse in question belongs, it will undeniably be in the greater degree apt with reference to the uses of human discourse taken in the aggregate, the more it abounds with words by which ambiguity and obscurity are excluded, or with words by means of which fresh and fresh degrees of conciseness are given to the body of the language.
Every language being the work of the human mind, at a stage of great immaturity, reference had to the present state of it, hence it is, that in every language, the most apt, or say the least unapt, not excepted, the demand for new words cannot but be great and urgent. In some of the departments of the field of language, including the field of thought and action, and the field of art and science, no reluctance at all as to this mode of enrichment has place:—on the other hand, in others such reluctance has place in a degree more or less considerable. Of this field, the portion in regard to which this reluctance seems to be most intense and extensive, is that which belongs to morals in general, and politics, including law and government, in particular;—of this reluctance, the inconsistency, and the evil effects that result from it to the uncontrovertible ends of human discourse, are apparent.
The opposite of that useful quality, the degree of which would be as the multitude of apt words associated with clear ideas—with ideas of unprecedented clearness, and introduced at a still maturer and maturer stage of the human mind, is a quality for the designation of which the word purity has commonly been employed. No sooner is the idea for the designation of which this word is employed brought clearly to view, than it is seen to be that which is aptly and correctly designated by the word indigence. This word indigence, wherefore then is it not employed—for what purpose is the word purity substituted to it? Answer: For this purpose, viz. the causing every endeavour to render the language more and more apt, with reference to the uncontrovertible ends of human discourse, to be regarded with an eye of disapprobation. Purity is of the number of those words to which an eulogistic sense has been attached—words under cover of which an ungrounded judgment is wont to be conveyed, and which are thence so many instruments in the hand of fallacy.
Of the use made of the word purity, the object, and to an unfortunate degree the effect, is—to express, and, as it were by contagion, to produce and propagate a sentiment of approbation towards the state of things, or the practice, in the designation of which it is employed—a sentiment of disapprobation towards the state of things or practice opposite.
On each occasion on which the word purity is employed for the purpose of pointing a sentiment of disapprobation on the act of him by whom a new-coined word is introduced or employed, reference is explicitly or implicitly made to some period or point of time at which the stock of words belonging to that part of the language is regarded as being complete—insomuch that, of any additional word employed, the effect is, to render the aggregate stock—not the more apt, but by so much the less apt, with reference to the ends of language; to wit, not on the score of its individual inaptitude (for that is an altogether different consideration,) but on the mere ground of its being an additional word added to that stock of words which it found already complete—a word introduced at a time subsequent to that at which the language, it is assumed, had arrived at such a degree of perfection, that by any change produced by addition it could not but be deteriorated—rendered less apt than it was with reference to the ends of language.
That as often as conveyed and adopted, any such sentiment of disapprobation is not only ungrounded but groundless, and the effect of it, in so far as it has any, pernicious, seems already to have been, by this description of it, rendered as manifest as it is in the power of words to render it.
An assumption involved in it is, that, so far as regards that part of the language, the perfection of human reason had, at the point of time in question, been already attained. Another assumption that seems likewise involved in it is—either that experience had never, from the beginning of things to the time in question, been the mother of wisdom, or that exactly at that same point of time, her capacity of producing the like offspring had somehow or other been made to cease.
Now as to the causes—the moral, the inward, the secret causes, in which this error—this pernicious mode of thinking, appears to have had its source. Applied to the field of thought and action taken in the aggregate, they appear to be these:—1. Aversion to depart from accustomed habits; in particular, the habit of regarding the stock of the matter of language as applied to the stock of ideas in question as being complete.
2. Love of ease, or say aversion to labour—aversion to the labour of mind necessary to the forming therein, with the requisite degree of intimacy, an association between the idea in question, new or old, and the new word thus introduced, or proposed to be introduced.
3. Where the word is such as appears to convey with it a promise of being of use, more or less considerable, in that portion of the field into which it is thus proposed to be introduced, a sentiment of envy or jealousy, in relation to the individual, known or unknown, on whose part the endeavour thus to make a valuable addition to the stock of the language has been manifested.
4. Of the causes above mentioned, the application wants not much of being co-extensive with the whole field of human discourse: one cause yet remains, the influence of which will naturally be more powerful than that of all the others put together. This cause is confined in its operation to the field of morals and politics—taking, however, the field of opinion on the subject of religion as included in it.
It consists in the opposition made by every such new word,—in proportion to the tendency which it has to add to the stock of ideas conducive to the greatest happiness of the greatest number,—to the particular and sinister interests of those by whom the sentiment of disapprobation, as towards the supposed effect and tendency of the new word in question, stands expressed, and is endeavoured to be propagated.
Of the modes or sources of improvement of language in respect of Copiousness.
Of single words, there are not many by which, in various ways, mischief to a greater amount has been done, than has been done by the word purity, with its conjugate pure:—done in the field of morals, in the field of legislation, and as here, in the field of taste.
In the fields of morals and legislation, purity has for another of its conjugates, a word significative of the opposite quality, impurity:—to the field of language the application of this negative quality does not appear to have extended itself.
The grand mischief here, is that which has been done by the inference that has been made of the existence of moral impurity from that of physical impurity—of impurity in a moral sense, from that of impurity in a physical sense.
In the field of taste, this word has been made the vehicle in and by which the notion is conveyed and endeavoured to be inculcated, that copiousness in language, instead of being a desirable, is an undesirable quality—instead of a merit, a blemish;—purity, being interpreted, is the opposite of copiousness: the less copious the language, the more pure. If ever there were a prejudice, this may assuredly be called one.
In the field of mechanics, when a workman has a new contrivance of any kind upon a pattern of his own to execute, a not uncommon preliminary is the having to contrive and execute accordingly a new tool or set of tools, likewise of his own contrivance, to assist him in the execution of the new work. Such, to no inconsiderable extent, has been the unavoidable task of the author with respect to legal language.*
The following are among the modes in which its improvement in the quality of copiousness may be sought:—
I. Augmentation, not to speak of completion, of the list of conjugates.
Rule 1: From whatsoever root any branch of conjugates already in the language has been derived,—from that branch deduce a root, and from that root deduce every other of the aggregate of the branches of which a complete logical cluster of conjugates is composed.
The operation is analogous to that of the gardener, who, stripping off a twig from a shrub, plants it in the ground, where it takes root, and having so done, forms itself into a perfect shrub, similar to that from which it was stripped off.
Rule 2: Give to every relative appellation its correlative.
Rule 3: Form new words with prefixes and suffixes matching one another.
Rule 4: Whatsoever group of conjugates any one of two opposites has, give also to the other,—to wit, in so far as it remains destitute of them.
II. Augmentation, not to speak of completion, of the list of compound words;—viz. of those in the formation of which the hyphen is employed as an instrument indicative of the junction; for as to compound words in which the junction is formed without the use of this instrument, the list of them will in a great degree coincide with the list of conjugates.
III. Augmentation (here completion is manifestly impossible) of the list of names;—univocal names of things and persons respectively.
In the manufacture of new words the following rules should be observed:—
Rule 1: No new word from any other than an English root, if any such is to be had.
Rule 2: Better from a Latin than a Greek root.
In either case, if there be any one branch already introduced into the English vocabulary, so much the better.
Rule 3: Introduce no species of conjugate of which there is no example as yet in the English language, so long as any one equivalent to it is to be had, of which there is an example in the English language.
When of a species which is familiar, an individual which is not familiar is introduced, for the joint purpose of authority and explanation, at the same time bring to view other individual instances.
English Language—its advantages for the purposes of Legislation.
Greek, Latin, and Teutonic, are the radical languages of the most civilized nations. Among these languages, the Latin is that which affords the richest set of conjugates, and consequently this language is the most apt for morals and legislation, in which the rule should be—ideis iisdem, verba eadem.
Among the Latin-sprung languages, the English is the most apt, as possessing in the highest degree the aggregate of these appropriate qualities, simplicity of texture, ductility, and augmentability.
Its aptitude for the purpose of legislation will appear—
1. As to words singly considered.
2. As to words aggregated into phrases.
It affords facility for the employment of new conjugates upon the pattern of the old. It allows of the employing any substantive as an adjective—viz. by simply prefixing it to another substantive, with relation to which it then becomes an adjective. In this way the names of parliamentary bills are formed. The extent of this facility will be clearly perceived, upon a comparison with the difficulties under which the French language labours in this particular.
It allows also of combining two words into one. When thus united, if one of them be a substantive employed as a substantive, it becomes the representative of an object capable of being made the subject of predication—a fictitious entity, to which, for the purpose of discourse, any action or quality may be ascribed.
It also contains a multitude of affixes—to wit, prefixes and suffixes—capable of being applied to any root for the formation of conjugates.
[* ]The distinction of clergyable and unclergyable was abolished by 7 & 8 Geo. IV. c. 28, § 6.—Ed.
[* ]See Appendix, “Logical Arrangements.”