Front Page Titles (by Subject) CHAPTER IX.: OF FORMS OF ENACTMENT. - The Works of Jeremy Bentham, vol. 3
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
CHAPTER IX.: OF FORMS OF ENACTMENT. - 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.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
OF FORMS OF ENACTMENT.
The forms of which a law is susceptible are* —1. Integral, or say principal; 2. Fractional, or say modificative—that is to say, modificative of some antecedently enacted principal law: to which may be added a third, under the name of composite,† as being composed of one or more integral laws, with the addition of one or more parcels of modificative matter—modificative, with reference to one or more integral or modificative laws.
By an integral law, understand the entire matter of one command—of one sentence or proposition: sentence, in the sense given to the word in an institutional work on grammar; proposition, in the sense given to the word by logicians in a book on logic.
Example: Thou shalt not, or no person shall commit; or, Let no person commit theft.
By a fractional law, understand a law by the matter of which some modification is applied—that is to say, some interpretation or some variation—to the import of the matter of some law, considered as the correspondent integral, or say principal law.
Example: The act of theft is committed, or, theft has place, where, not believing himself to have a right so to do, a person converts to his own use a moveable subject-matter of property, to the use of which, in the manner in which he so converts it to his own use, he has not any sufficient right—he at the same time being conscious of his not having any such sufficient right, and by concealment or carrying off of the thing so dealt with, or by disguise or subtraction of his own person, using his endeavours to avoid being amenable to law in respect of such his act.
In this example may be seen an example of a fractional law, which is interpretative, or say exponing, with reference to the above-mentioned principal, or say integral law.
In consequence of its familiarity to every ear and every eye it is, that the law expressed by the words, Thou shalt not steal, is herein-above employed as an example; but the form thus exemplified is not the simplest form of which a law relative to this matter is susceptible.
A more simple form is this: Thou shalt not convert to thine own use any moveable thing, or any subject-matter of property, which thou hast not a right so to deal with, as thou hast done. A law expressed in these words belongs to that class of laws which are regularly denominated civil laws, or spoken of as being respectively part and parcel of the aggregate branch of law called the civil branch, or the civil law, or the mass of matter belonging to the civil code. Better, in consideration of the various other senses in which the adjective civil, when applied in conjunction with the substantive law is employed, say, non-penal law, or simply distributive law.
The law expressed in and by these words,—Thou shalt not steal, or, No person shall steal, is in effect, under the guise of a simple integral law, a composite law, as agreeing with the definition above given of a composite law. For in the import of the word theft, as also in that of the word steal,—which is an abridged equivalent, of the words commit an act of theft—is included, though tacitly and thus implicitly, the idea of punishment, as being in some shape or other appointed to be inflicted on the agent, who is so in respect of such act:—which appointment cannot be made without a correspondent law (really existing or fictitious, of which latter case presently) enacted for that purpose, and attached to the integral law first mentioned.
Evil consciousness is the name proposed to be employed for the designation of one of two states, in one or other of which unless a man’s mind have place, punishment not being capable of producing any good effect—but on the contrary, being sure to be productive of bad effect—cannot but be worse than useless:—the other state thus alluded to being that which in Roman law and language has been termed temerity (temeritas), and may in English be rendered by the word heedlessness; that is, want of that strength of attention by which, if bestowed, the commission of the act, the maleficent quality of which is assumed, would have been prevented. For the designation of an act here expressed by the terms an act accompanied with evil consciousness, the words, a malâ fide act, or an act committed in mala fides, are employed in Roman law and language, and thence sometimes in the language employed by English lawyers.
An act accompanied with evil consciousness, as above, is also in Roman law and language said to be accompanied with dolus; or say, dolus is spoken of as being, in the mind of the agent, an accompaniment of the act. Inadequate, however, is this appellative thus used by Roman and Rome bred lawyers. For dolus, in the sense in which it is on any other ocasion employed in Roman language, means deceit, and implies that deception is produced or endeavoured to be produced in the mind of some person on the occasion of the act:—whereas it is as often employed in cases where no such deception is supposed to have been produced or endeavoured to be produced, as in cases in which it is supposed to have been produced,—as in case of a highway robbery or burglary committed by a man who knows that his person is well known to the party on whom and at whose expense the crime is committed.
Laws may further be considered as integral or principal, and subsidiary or say effectuative.
Effectuative being a term of reference,—by an effectuative law understand a law the object and function of which is to give effect to some principal law to which it is appended.
No otherwise than by applying to the mind of a person whose conduct it is designed to influence, an inducement of some kind or other, can any law of the effectuative class be productive of the effect intended.
Such inducement will be constituted by the eventual expectation either of the matter of good in some shape, or of the matter of evil in some shape:—of the matter of good in case of compliance, or of the matter of evil in case of compliance; or of the matter of good in case of non-compliance, and the matter of evil in case of non-compliance, in which case, in any event, the one or other will, by the person whose active faculty it is endeavoured thus to influence, be receivable.
If it be of the matter of good that the expectation is thus held out, remunerative is the term by which the effectuative law in question may be designated:—if the matter of evil, penal, punitional, or say punitive.
Legislation has been distinguished into two modes—the direct and the indirect.
In the direct mode, the persons at whose hands obedience is desired, are different in the case of the subsidiary or effectuative law, and in the case of the fractional law. In the case of each of the two species, the remunerative and the punitive, they are, howsoever it may be in regard to the principal law, always the same.
1. In the case of the remunerative subsidiary law,—the persons, whoeoever they happen to be, by whose hands the matter of remuneration is eventually to be transferred into those in whose instance compliance with the desire which gave birth to the principal law has had place, are most commonly, persons belonging to the financial subdepartment of the administration department.
2. In the case of the punitive subsidiary law,—the judge to whom the cognizance of the case belongs.
3. In the case of the principal law, they are persons of any class whatsoever,—persons belonging to any one of the classes all-comprehensive, or short of all-comprehensive,—at whose hands compliance is called for by the general code, and the several particular, or say specific codes,—including the several still more particular, and, as they may be termed, subspecific classes, at whose hands compliance is called for in and by each one of the several particular codes.
In the indirect mode of legislation, separate subsidiary, or say effectuative law, for this particular purpose there is none.
Disguised forms of legislation may be employed, either undesignedly or designedly:—thus by means of a remunerative inducement, there may be created an indirect mandate—under the appearance of a prohibition, there may be an indirect licence.
Indirect mandate, with a remunerative inducement to compliance.
Example: Mass of the matter of wealth to an indefinite amount. Power given to P. (patron) to confer it;—to I. (incumbent) to receive it, retain it, enjoy it:—but on condition precedent, antecedently to be performed; to wit, a declaration of opinions, a declaration by the utterance of which the declarant asserts that he entertains, in relation to a certain subject-matter of opinion thereupon named, an opinion to a certain effect.
Of the utterance of every such mandate, the effect is the production of mendacity on the part of some part, or the whole of the number of those by whom the mass in question is received. How so? Answer: Because, in this case, by a man in whose instance the assertion is mendacious, accompanied with evil consciousness, the matter of good in question, the reward, may be obtained as surely and as safely as by any one in whose instance the assertion stands clear of any such accompaniment.
In the instance of no person can any other person have sufficient ground for regarding it as certain that a declaration of opinion made in the case in question is mendacious. But in the instance of any person, all others will have some ground for entertaining a suspicion to that effect;—that is to say, for regarding such mendacity as being more or less profitable.
The probability of the existence of mendacity in this case, is in the direct ratio of the improbability of the matter of fact, the existence of which is asserted by the declaration in question; and of the perspicacity of the person by whom the declaration is made.
For contributing to the propagation of mendacity on this occasion, in this mode, and by this means, inducements operating on the part of a contributor are the following:—
1. Averting from himself the imputation of mendacity. The persons in whose instance alone this inducement has place, are those by whom the like declaration is known to have been made.
2. Producing on the part of other persons in an indefinite number, a declaration of opinion clear of the imputation of mendacity on the subject in question,—that is, in other words, causing them really to entertain an opinion to the effect in question. How so? Answer: By the force of authority-begotten prejudice.
In relation to many points, not to say most, every man finds himself under the necessity of borrowing his opinions from others, grounding his conduct not on any direct opinions of his own relative to the matters of fact in question, but upon the opinions of this or that person, or class or assemblage of persons, whose opportunities of receiving information he regards as more conducive to the end in view, than any of which he himself is in possession.
In this way it is, that by a declaration of opinion made by a man in whose instance it is mendacious, that same opinion is caused to be really entertained, and consequently a declaration made of it clear of mendacity in the instance of other persons in any number.
3. By this means giving strength to the party to which he belongs—a party having for the symbol and evidence of mutual union and co-operation, the entertaining of the same opinion in relation to this or that subject-matter of opinion, no matter what.
Licence presupposes either prohibition or mandate, and has for its effect the removal of the one or the other, in the instance and for the benefit of the individual who is said to be licensed.
In the case of prohibition, the indirect mode is much more effective than the direct. Why? Because prohibition supposes delinquency on the part of him who fails to comply with it; that is to say, who exercises an act of the sort of those for the prevention of which the prohibition issued: prohibition supposes delinquency, and delinquency supposes eventual punishment and suit at law, in this case styled prosecution, for the purpose of inducing the judge to apply the punishment. But for this purpose, evidence is necessary, with time and means of adducing counter-evidence; none of which obstacles have place in the case of indirect prohibition.
The greater the delay, expense, and vexation attendant on prosecution, the greater the excess of efficacy on the part of the indirect in comparison with the direct mode.
In a word, the mode of prohibition is indirect when the portion of good or the portion of evil of which the inducement to abstain from the exercise of the prohibited act is composed, takes place without recourse had by any person to the services of the judge for the purpose of causing it to be received: the portion of good, that is to say, the enjoyment, or the efficient cause of enjoyment—the portion of evil, that is to say, the portion of suffering, or the efficient cause of suffering.
Prohibition, with a punitive inducement to compliance attached in the indirect mode.
Example: A tax imposed on law proceedings—the amount of it payable either to the public, or to a judge, or other member of the judiciary establishment.
Every tax imposed on an object of general desire has the effect of a prohibition; that is to say, a prohibition inhibiting the use of it to all those who have not wherewithal to pay the tax. Now mind the effect of a tax imposed on the faculty of obtaining the services of the judge.
The use of it to those to whom it is of use—the use of it in comparison with the direct mode of endeavouring to prevent that which it is desired to prevent, is the faculty of effecting the prevention without the odium which would attach upon any one who should be seen to join in the application of prohibition in the direct mode.
By a tax on law proceedings, the effect of a licence may be produced.
I. A tax imposed on the operations performed on the plaintiff’s, or say demandant’s side, operates as a licence to wrong in every possible shape, at the charge of every individual who, at the time in question, is unable to defray this factitious expense, in addition to expense in all other shapes, factitious and natural taken together: in this case, to wrong in all shapes through failure of justice, for want of the official services of the judge and his subordinates.
The efficient enactments by which in this case the effect, i. e. the licence, is produced, are these:—1. A mandate addressed to the judge, commanding him eventually to render to each demandant the particular services demanded by the demand, and thereby to impose on the defendant the burthen, whatever it be, the imposition of which is called for by the demand,—eventually, that is to say, if to the satisfaction of the judge it shall have been proved, that by rendering such service, execution and effect will on that individual occasion have been given to some law applying to the case. 2. Applicable to a correspondent portion of the extent covered by that same mandatory enactment, a prohibitory enactment, inhibiting the judge from rendering such a service in every individual case in which the tax in question has not been paid.
II. A tax on judicial operations performed and judicial instruments employed on the defendant’s side, operates not only as a simple licence given to the demandant to inflict wrong on the defendant in every shape in which punishment or other burthen is endeavoured to be imposed by the demand: in this case, not merely is a licence to commit the several enormities given, but by the legislator, at any rate, the judge is rendered an instrument in the hand of the wrongful demandant, in and for the commission of all these several wrongs—an accomplice of the wrongdoer, the wrongful demandant, by whom is reaped the chief profit from these wrongs.
The effective enactments by which in this case the effect of the licence, or more than the effect of the licence, is produced, are—
1. A mandate addressed to the judge, commanding him eventually to render to each demandant the services demanded by his demand, and thereby to impose on the defendant the burthen, whatever it be, the imposition of which is called for by the demand:—eventually, that is to say, if to the satisfaction of the judge it shall have been proved, that by rendering such service, execution and effect, will in this indivdual occasion have been given to some legislative-made law at that time in force and applying to the case, or some judge-made law, operating in default of such legislative-made law, and applying to that same case.
2. A correspondent prohibition addressed to the judge, inhibiting him from permitting the defendant to perform this or that operation, the performance of which is necessary,—or from exhibiting this or that written instrument,—exhibition of which is necessary, to his defence: that is to say, to the affording to the judge reasonable ground for being satisfied, that in case of his rendering to the demandant in question the service he demands, execution and effect would not be rendered to any law, but that, on the contrary, by his rendering that same service an offence against some law actually in force would be committed.
Of these two arrangements taken together, the effect is, to command the judge, on the individual occasion in question, to commit an act which in the eyes of the legislator himself is an act of injustice: to bestow upon every person by whom what in his eyes is regarded as an adequate assurance has been obtained, that another individual, on whom he is desirous of imposing a burthen in any shape in which the judge is either commanded or permitted eventually to impose it, that such individual will not be able to raise the money on the payment of which, and not otherwise, he will have purchased the permission to adduce the evidence, and arguments necessary to exempt and preserve him from suffering under the burthen thus wrongfully endeavoured to be imposed,—the effectual power of imposing that same burthen.
When by a law by which, for the declared purpose of preventing the exercise of a species of act regarded as being in a preponderant degree maleficent, a prohibition with a punitive sanction, or say inducement, is established, in such sort, that—while the aggregate amount of the eventual burthen appointed to be borne by a person not complying with the inhibition is fixed, or confined on the side of increase within a certain limit, the nature of the inhibited act is such, that in individual cases more or less numerous, after the offending agent has been subjected to the burthen, a clear benefit, or say a net profit, to an amount more or less considerable, remains in his hands,—instead of the supposed and apparent prohibitory enactment or arrangement, a mandatory enactment and arrangement, with a remuneratory sanction and inducement, has place, to the amount of such clear benefit in each such individual case.
From this theoretical observation follows a practical conclusion of prime importance. Throughout the whole penal code, in the case of every offence, give to the judge the power of searching out and taking from the offender the whole profit of the offence:—this done, and not before that, it comes to be of the nature of any burthen imposed, to contribute in the character of a subsequentially privative remedy to the prevention of offences of the like nature in future.
To the present topic belong in strictness those cases, and those cases alone, in which, at the expense of prohibitive enactments with punitive inducements emanating from the legislative authority, an unannounced, and thence by persons in general unperceived, licence, is granted by that same authority.
But a place may here be found, in which, in the way of allusion, intimation may be given of a species of operation productive of the same effect though performed by other hands; since of the mass of evil thus produced, the intensity and extent are such as can scarcely fail to impress upon every reader’s mind a correspondent sense of its importance.
These other hands are those of the judicial authority: and in the circumstances in which civilized society has everywhere as yet been placed, though in point of fact everywhere the judicial authority is by avowed acknowledgment subordinate to the legislative, and in the very nature of the case cannot but so be,—yet such, on the one hand, has been the cunning and audacity of the members of the judicial establishment, and such the blindness or supineness of the legislative authority, in whatsoever hands placed, that in every country, to a greater or less degree, but in England in a more particular degree and to a greater extent by far than in any other country, the judicial has found means, on various pretexts, to trench upon the authority of the legislative, to destroy the effect of its enactments, and thus, and in so far, usurp its authority.
In another place, the device by which this state of things has been brought about has been designated by the words, decision on grounds avowedly foreign to the merits:* and under this, the practice, or say operation, designated by the appellative of nullification or annulment, has been brought to view, and shown to be the principal instrument of the evil thus accomplished.
It has been seen how it is, that of the principal enactment, whether prohibitory or mandatory, with a punitive inducement, the effect depends upon a corresponding enactment, styled a subsidiary, or say effectuative enactment, commonly, if not always, of the mandatory cast, addressed to the judge. Hence it is, that if in any instance, upon application in ordinary course made to him, the conduct maintained on that individual occasion be, instead of strict compliance as it ought to be, that of downright non-compliance, such act of non-compliance is an act of usurpation, an act of delinquency, in respect of which in every political community in which a degree of anarchy incompatible with general security is not preferred to a consistent mode of governance, without which no adequate degree of general security can have place, every judge thus acting in a state of disobedience to his universally acknowledged superordinate, will be considered as a criminal, and as such dealt with.
In this case, not only does the judge in every instance assume to himself, and exercise the power of frustrating, and pro tanto repealing the enactment of the legislature, but though in an indirect, not in a less efficacious way, with or without being conscious of the evil he is doing, does he impart that same power to other persons in a great variety of situations. For non-compliance with a certain supposed and imaginary enactment, although the act of delinquency of which he stands accused have been proved upon the defendant, and thereby the existence of the corresponding obligation on the part of the judge to make application of the appointed punishment, the judge refuses to make such application.
Now, then, if it were real, this imaginary regulation, what would it be? It would be for example, a regulation enacting that unless in the instrument of accusation (denominated for example an indictment, by which, in so far as regards general ideas, expression is given by a certain assemblage of general words, while for the giving expressions to the individual ideas belonging to the individual case blanks are left), such and such words shall be employed:—employed by whom? by the individual, whoever it is, by whom the words were written, subject to a review performed or not performed, as it may happen, by his employer, a person holding some subordinate situation under the judge,—the punishment enacted by the legislator shall not be inflicted.
Hence, then, by this regulation, a power is given at any rate to some subordinate functionary in an obscure situation, to frustrate any or all enactments of the legislator which come for execution and effect to the judge under whose authority he officiates;—at any rate, to some subordinate clerk of the arraigns or whatever he is called. But in contingency, and always in probability, another person to whom this same power is imparted, is any man whatsoever, who, in the capacity of a copying clerk, happens to be employed by that same subordinate officer.
Of this same maleficence-licence institution, the species of licence here and elsewhere mentioned under the name of the mendacity licence, is a species, or say modification.
In this case, a prohibition is enacted—a prohibition with a punitive sanction and inducement, inhibiting under certain penalties the commission of any act of mendacity—of any act by which expression is given to a false assertion, accompanied with the consciousness of its falsity. But the case to which the application of this prohibition is confined, is the case in which a special engagement to abstain from mendacity has been taken and entered into, by bearing a part in the ceremony styled an oath,—in this case, an affirmative oath.
Thus stands the matter in the case of the mendacity-licence taken at large.
But in the case of the mendacity-licence which has been established, and has place on different occasions throughout the whole course of judicial procedure under the law of England, as also under the law of perhaps most other countries,—to this negative sort of encouragement given, and licence granted, by forbearance to apply prohibition, is added, under English law at any rate, an encouragement of the positive cast, afforded by a mandate with a sanction and inducement of the remunerative kind, addressed to all malâ fide suitors on both sides of the suit, and in particular at the outset to a malâ fide suitor on the demandant’s side.
Utter—says the legislator to every man disposed to be a wrong-doer, to commit depredation or simple oppression at the charge of any individual marked out by him for his victim—utter in customary form and quantity a mass of mendacious assertion;—if the individual at whose charge it is your desire to inflict wrong in this shape, whatsoever it be, have after a certain length of time failed to give utterance in a written form to a correspondent mass of assertory matter, true or false, the wrong it is your desire to commit at his charge shall take effect; the mass of the matter of wealth, whatever it be, which being in his possession it is your wish to get into yours, shall accordingly, upon your carrying on the appropriate series of operations, be placed in your hands, or the oppression which in other shapes it may be your wish to see exercised on him, shall accordingly be exercised.
Thus pregnant with absurdity and mischief upon an all-comprehensive scale, would be this practice—this institution (if such it may be called), if the facts assumed by it really had place; namely, the existence of a standard of conformity set up by competent authority, and warning given of the practical consequence that would be grounded on want of conformity to such standard—namely, the frustration, and pro tanto the repeal of the punitive, subsidiary, or say effectuative law, attached by the legislative authority to the principal prohibitive law. So much for what in a certain supposed case would have been the state of things. But this same state of things, what is it in reality? Answer: Throughout the whole of the portion of the field of law over which this licence extends its baleful influence, the existence of any such standard, and consequently of the warning pointing to it, is a mere fiction. It is for not having done that which to the knowledge of these judges was impossible,—the impossibility being of their own creation, that the suffering inflicted by the frustration of the legislative-made law is inflicted by them.
Suffering thus inflicted by a judge, and that without so much as a pretence of maleficence or delinquency in any shape,—on his part in any shape?
Oh yes, so it is. For whatsoever may have been the expense, not to speak of vexation in other shapes, experienced by the prosecutor in the course of his endeavours to cause execution and effect to be given to the enactment of the legislature, the suffering produced by it is left to rest on his shoulders without compensation; while, by the delinquent, be his maleficence ever so enormous, in no shape (in addition to the vexation) is suffering produced, other than by such expense as he is subjected to by the proceedings carried on by him on the occasion and for the purpose of his defence.
By the legislator orders are given to the judge to inflict punishment on the delinquent. This same judge,—what does he in consequence? In so far as depends upon him, the criminal he leaves unpunished, securing to him at the sametime whatsoever was the expected profit of his crime—the goods, for example, abstracted in the way of theft, highway robbery, or housebreaking: on the party in whose breast the suffering was produced by the crime—in spite of the legislator, in the very teeth of his ordinance—he heaps additional suffering.
Of insubordination thus exemplified, too much there is in the legal system of every civilized country on the face of the globe; into the mass of power belonging to the master legislator, to which, as in duty bound, he gives execution and effect, this cunning servant contriving everywhere to slip in a portion of power clandestinely, to add to his own use a portion of power, to which he gives most sure execution and effect, to his own use and to his own advantage, at the expense of the power of the sovereign and the comfort of the subject-citizens. After the pattern set by Rome-bred law, à peine de nullité, you see in Buonaparte’s codes:—the like in the same language, or some other language, you may see in other codes. And the punishment thus inflicted by the utterance of the word nullité, or its equivalent, on whom is it inflicted? On the guilty author of the injury? No, not in any instance: but on him who, in respect of the injury, is not only innocent, but injured. Of the suffering produced in the case of the most mischievous crime, committed by a man who in common language is aggregated to the all-comprehensive and reproachful denomination of malefactors, what is the quantity compared with that produced by the judge with the word nullity, or this or that one of its kindred for a pretence?
Thus stands the matter hitherto, even in that code of that government, the practice of which, in this respect, is least exposed to reprobation. But it is in England and English law that injustice in this shape triumphs and reigns, with a degree of flagrancy which leaves the highest of that exemplified in any other country far behind.
A sportsman who, with or without a crown or a judge’s wig upon his head, taking his station within shot of the entrance of a bridge, should amuse himself in shooting men and women instead of partridges and hares, might serve as the emblem of the judge with the words null and void, instead of shot; laying low at the command of his caprice the passengers as they presented themselves, aiming at them without any other care as to the selection, than that of bringing down the party robbed or hurt, instead of the malefactor by whom the robbery or the outrage had been committed.
Another exemplification of unauthorized legislation has elsewhere been brought to view; to wit, that practised by individuals in the situation of jurymen.* Throughout English law, if, on the part of any class of public functionaries, misconduct in any shape receives a palliation, it is by misconduct on the part of the same or some other class of public functionaries. Thus the veto put as above in individual cases by judges on all laws, the most salutary and indispensable, receives a sort of palliative, and the mischief of it a sort of counteraction and correction, in the veto, which also, in individual cases, juries have the power of putting upon mischievous ones. Weak, indeed, would be the palliative, scanty the compensation, were the mischief, which an English juryman by his veto has it in his power to prevent, no greater than that which an English judge, with the words null and void in his mouth, has it in his power to propagate.
But the utmost mischief which the judge is likely to add to the will, the power to do, on any individual occasion, does not go beyond that which is the result of letting loose upon society a murderer or two: as when, not long ago, the man who had cut a child’s head off, was saved by a judge from punishment, because some clerk or other had written in a paper a line or a word which the judge said was a wrong one. Whereas nothing can be more clear, that were it not for the power which juries possess of nullifying, amongst other portions of judge-made law, that by which all free discussion of the conduct of public functionaries is constituted a crime, and as such declared to be and endeavoured to be made punishable, the condition of the people of England would long ago have been rendered undistinguishable from that of the people of Spain and Portugal.
Instead of the child as above, suppose the person to whom the amputated head had belonged a king—and suppose, as would be the case, the name given to the crime to be,—not murder, as in that case,—but treason. As to the judge, there would be no great apprehension of his granting in this case the licence granted as in that case, to the crime. Not altogether so in the case of the juror: to him it might seem that the people would be better off without the king in question in particular, or without any king whatsoever, than with one; and in that persuasion, pronouncing the words not guilty, he might by perseverance force into the eleven other mouths those same words, with the perjury which English piety has added as if for a relish. And thus it is, that when the corruption of the English government has swelled to such a pitch as to render the whole amount of it a no longer endurable nuisance, a few jurors, with these two words on their lips, have it at their option to accomplish the dissolution of it; whereupon sooner or later a new government in some shape or other will take place, and be established: and as to any other equally bad with the present, it is what the most timid need not be apprehensive of; seeing that it is not in virtue of the form of government, but in spite of the form of government, that that measure of felicity, whatever it be, by which England stands distinguished to its advantage from any other nation, is produced.
In effect, the power thus exercised as above by judges, jurymen, and attorneys’ clerks, has it not a name? Oh yes;—a name it has;—and that name is pardon. Everywhere, on the footing on which it stands at present, the power thus denominated is a relic of primeval barbarism: it is the power of frustrating the declared will of the legislator. The folly on which it stands in a monarchy styled limited, is different from that on which it stands in an avowedly absolute monarchy. In an absolute monarchy, in which it is in the single person of the monarch that the whole power of legislation is vested, neither in the possession nor in the exercise of the power of pardoning has contradiction in any shape or degree place: in the individual occasion in question—in the individual instance in question, the will of the sovereign is different from that which has place in all cases without distinction. To take away the effect of the law in every future individual instance without exception, is altogether at all times in his power, and frequently in his practice: and in comparison with this, how small is the power of pardoning an individual, supposing the occasion on which it is exercised ever so improper, and the effect of it ever so mischievous?
Very different is the folly on which the case stands, when the monarch, having no more than a share in the exercise of the legislative power, so called, has in his own single hand the power of frustrating the effect of any enactment, howsoever salutary, howsoever necessary to public security.
How much greater the folly for any legislature to leave the power of frustrating its enactments in the hands of jurors, judges, and copying clerks.
[* ]A law is also susceptible of a categorical, or a hypothetical form. It may be expressed thus:—“Every man who, &c. shall suffer,” &c.; or it may be expressed thus:—“If any man, &c. he shall suffer,” &c. The distinction expressed by the two terms categorical and hypothetical has place in reference to propositions in the logic of the understanding: equally has it place in the logic of the will. The categorical is the form employed in enactive propositions in every country except the British Isles, and some, though not all, of its distant dependencies. The hypothetical is a form peculiar to English legislation:—the evil consequences resulting from it are lengthiness, and consequent and proportionate obscurity. On the occasion of each article, in a chain to the length of which there is no limit, scraps of sentences, to none of which there is any conclusion, are strung on, one upon the tail of another, before so much as a single sentence in a complete state makes its appearance. It has for its effect (and when has it failed to have had for its object?) the maximizing the difficulty of comprehending the enactment.
[† ]Composite, so termed in allusion to the order termed the composite in architecture.
[* ]Petition for Justice. See Vol. V. p. 476.
[* ]See Principles of Procedure, Vol. II. Ch. XXIII.; and Elements of the Art of Packing, Vol. V.