The Online Library of Liberty

A project of Liberty Fund, Inc.

• Errata—vol. I.
• General Preface.
• Introduction to the Study of the Works of Jeremy Bentham;
• Section I.: Bentham’s Style and Method of Thinking.
• Section II.: The Greatest-happiness Principle and Its Application to Morals and Legislation.
• Section III.: The Pursuit of Truth.—fallacies.—principles of Evidence.
• Section IV.: System of Government.
• Section IV.: Law Reform.
• Section VI.: Principles of Punishment.
• Section VII.: Poor Laws, Education, and Other Institutions For National Amelioration.
• Section VIII.: International Law.
• Section IX.: Political Economy.
• Section X.: Logic and Metaphysics. †
• An Introduction to the Principles of Morals and Legislation.
• Preface.
• Chapter I.: Of the Principle of Utility.
• Chapter II.: Of Principles Adverse to That of Utility.
• Chapter III.: Of the Four * Sanctions Or Sources of Pain and Pleasure.
• Chapter IV.: Value of a Lot of Pleasure Or Pain, How to Be Measured.
• Chapter V.: Pleasures and Pains, Their Kinds.
• Chapter VI.: Of Circumstances Influencing Sensibility.
• Chapter VII.: Of Human Actions In General.
• Chapter VIII.: Of Intentionality.
• Chapter IX.: Of Consciousness.
• Chapter X.: Of Motives.
• Chapter XI.: Of Human Dispositions In General.
• Chapter XII.: Of the Consequences of a Mischievous Act.
• Chapter XIII. *: of Circumstances Influencing the Degree of Alarm.
• Chapter XIV.: Reasons For Considering Certain Actions As Crimes. *
• Chapter XV.: § 1. General View of Cases Unmeet For Punishment.
• Chapter XVI.: Of the Proportion Between Punishments and Offences.
• Chapter XVII.: Of the Properties to Be Given to a Lot of Punishment.
• Chapter XVIII. § 1.: Classes of Offences.
• Chapter XIX.: § 1. Limits Between Private Ethics and the Art of Legislation.
• I. Essay On the Promulgation of Laws
• Essay On the Influence of Time and Place In Matters of Legislation.
• Introduction. *
• Chapter I.: Principles to Be Followed In Trans Planting Laws.
• Chapter II.: Regard to Be Paid to Subsisting Institutions.
• Chapter III.: Rules Respecting the Method of Transplanting Laws.
• Chapter IV.: Laws Appear the Worse For Being Transplanted.
• Chapter V.: Influence of Time.
• A Table of the Springs of Action:
• A Fragment On Government;
• Preface to the First Edition, Published In 1776.
• Historical Preface, Intended For the Second Edition.
• Three Letters On the Fragment On Governmen
• Letter the First. of an Examination Into the Merits of a Critique On Blackstone’s Commentaries, Lately Published Under the Title of a Fragment On Government.
• Letter the Second. of an Examination Into the Merits of a Critique On Blackstone’s Commentaries, Lately Published Under the Title of a Fragment On Government.
• Letter the Third. By John Lind, Esq. Afterwards Barrister At Law, to D., Author of Two Letters * On a Fragment On Government.
• Introduction. *
• Chapter I.: Formation of Government.
• Chapter II.: Forms of Government.
• Chapter III.: The British Constitution.
• Chapter IV.: Right of the Supreme Power to Make Laws.
• Chapter V.: Duty of the Supreme Power to Make Laws.
• Principles of the Civil Code.
• Introduction.
• Part I.—: Objects of the Civil Law. *
• Chapter I.: Of Rights and Obligations.
• Chapter II.: Distinct Objects of the Civil Law.
• Chapter III.: Relation Between These Objects.
• Chapter IV.: Of Laws Relative to Subsistence.
• Chapter V.: Of Laws Relative to Abundance.
• Chapter VI.: Propositions of Pathology Upon Which the Advantage of Equality Is Founded.
• Chapter VII.: Of Security.
• Chapter VIII.: Of Property.
• Chapter IX.: Answer to an Objection.
• Chapter X.: Analysis of the Evils Resulting From Attacks Upon Property.
• Chapter XI.: Security and Equality—their Opposition.
• Chapter XII.: Security and Equality—means of Reconciliation.
• Chapter XIII.: Sacrifices of Security to Security.
• Chapter XIV.: Cases Subject to Dispute.
• Chapter XV.: Examples of Attacks Upon Security.
• Chapter XVI.: Of Forced Exchanges.
• Chapter XVII.: Power of the Laws Over Expectation.
• Part II.
• Chapter I.: Of Titles Which Confer a Right to Property. *
• Chapter II.: Another Mode of Acquisition—consent.
• Chapter III.: Another Means of Acquisition—succession.
• Chapter V.: Of Wills.
• Chapter V.: Of Rights Respecting Services—means of Acquiring Them.
• Chapter VI.: Community of Goods—its Inconveniences.
• Chapter VII.: Of Distribution of Loss.
• Part III.: Of the Rights and Obligations Attached to Different Private Conditions.
• Introduction.
• Chapter I.: Of Master and Servant.
• Chapter II.: Of Slavery.
• Chapter III.: Of Guardian and Ward.
• Chapter IV.: Of Parent and Child.
• Chapter V.: Of Marriage.
• Appendix.: of the Levelling System. *
• Principles of Penal Law.
• Part I.: Political Remedies For the Evil of Offences.
• Chapter I.: Subject of This Book.
• Chapter II.: Of Direct Methods of Preventing Offences.
• Chapter III.: Of Chronic Offences.
• Chapter IV.: Of Suppressive Remedies For Chronic Offences.
• Chapter V.: Of Martial Law
• Chapter VI.: Of the Nature of Satisfaction.
• Chapter VII.: Reasons Upon Which the Obligation to Make Satisfaction Is Founded.
• Chapter VIII.: Of the Different Kinds of Satisfaction.
• Chapter IX.: Of the Quantity of Satisfaction to Be Granted.
• Chapter X.: Of the Certainty of Satisfaction.
• Chapter XI.: Of Pecuniary Satisfaction.
• Chapter XII.: Of Restitution In Kind.
• Chapter XIII.: Of Attestative Satisfaction.
• Chapter XIV.: Of Honorary Satisfaction.
• Chapter XV.: Remedies For Offences Against Honour.
• Chapter XVI.: Of Vindictive Satisfaction.
• Chapter XVII.: Of Substitutive Satisfaction, Or At the Expense of a Third Party.
• Chapter XVIII.: Of Subsidiary Satisfaction At the Expense of the Public Treasure.
• Part II.—: Rationale of Punishment.
• Advertisement.
• Book I.: General Principles.
• Chapter I.: Definitions and Distinctions.
• Chapter II.: Classification.
• Chapter III.: Of the Ends of Punishment.
• Chapter IV.: Cases Unmeet For Punishment.
• Chapter V.: Expense of Punishment.
• Chapter VI.: Measure of Punishment.
• Chapter VII.: Of the Properties to Be Given to a Lot of Punishment.
• Chapter VIII.: Of Analogy Between Crimes and Punishments.
• Chapter IX.: Of Retaliation.
• Chapter X.: Of Popularity.
• Book II.: Of Corporal Punishments.
• Chapter I.: Simple Afflictive Punishments. *
• Chapter II.: Of Complex Afflictive Punishments.
• Chapter III.: Of Restrictive Punishments—territorial Confinement.
• Chapter IV.: Imprisonment.
• Chapter V.: Imprisonment—fees.
• Chapter VI.: Imprisonment Examined.
• Chapter VII.: General Scheme of Imprisonment.
• Chapter VIII.: Of Other Species of Territorial Confinement—quasi Imprisonment—relegation—banishment.
• Chapter IX.: Of Simply Restrictive Punishments.
• Chapter X.: Of Active Or Laborious Punishment.
• Chapter XI.: Capital Punishment.
• Chapter XII.: Capital Punishment Examined. *
• Book III.: Of Privative Punishments, Or Forfeitures.
• Chapter I.: Punishment Analyzed.
• Chapter II.: Of the Punishments Belonging to the Moral Sanction.
• Chapter III.: Forfeiture of Reputation.
• Chapter IV.: Of Pecuniary Forfeitures.
• Chapter V.: Forfeiture of Condition.
• Chapter VI.: Forfeiture of the Protection of the Law.
• Book IV.: Of the Proper Seat of Punishment: Or Say, of Mis-seated Punishment.
• Book V.: Of Complex Punishments.
• Chapter I.: Inconveniences of Complex Punishments.
• Chapter II.: Of Transportation.
• Chapter III.: Panopticon Penitentiary.
• Chapter IV.: Felony.
• Chapter V.: Of PrÆmunire.
• Chapter VI.: Outlawry.
• Chapter VII.: Excommunication.
• Book VI.: Miscellaneous Topics.
• Chapter I.: Choice of Punishments—latitude to Be Allowed to the Judges.
• Chapter II.: Of Subsidiary Punishments.
• Chapter III.: Of Surety For Good Conduct.
• Chapter IV.: Defeazance of Punishment.
• Appendix—: On Death-punishment. ∥ Jeremy Bentham to His Fellow-citizens of France.
• Part III.: Of Indirect Means of Preventing Crimes.
• Introduction.
• Chapter I.: Methods of Taking Away the Physical Power of Injuring.
• Chapter II.: Another Indirect Method—hinder the Acquisition of Knowledge Which May Be Rendered Injurious. †
• Chapter III.: Of Indirect Means of Preventing the Will to Commit Offences.
• Chapter IV.: Problem I. to Divert the Course of Dangerous Desires, and Direct the Inclination Towards Those Amusements Which Are Most Conformed to the Public Interest.
• Chapter V.: Problem II. to Make Such Arrangements, That a Given Desire May Be Satisfied Without Prejudice, Or With the Least Possible Prejudice.
• Chapter VI.: Problem III. to Avoid Furnishing Encouragement to Crimes.
• Chapter VII.: Problem IV. to Augment the Responsibility of Individuals, In Proportion As They Are More Exposed to Temptation to Do Wrong.
• Chapter VIII.: Problem V. to Diminish Sensibility With Regard to Temptation.
• Chapter IX.: Problem VI. to Strengthen the Impression of Punishments Upon the Imagination.
• Chapter X.: Problem VII. to Facilitate the Discovery of Offences Committed.
• Chapter XI.: Problem VIII. to Prevent Offences, By Giving to Many Persons an Interest In Preventing Them.
• Chapter XII.: Problem IX. to Facilitate the Recognition and the Finding of Individuals.
• Chapter XIII.: Problem X. to Increase the Difficulty of Escape For Delinquents.
• Chapter XIV.: Problem XI. to Diminish Uncertainty With Regard to Procedure and Punishment.
• Chapter XV.: Problem XII. to Prohibit Accessory Offences, In Order to Prevent Their Principals.
• Chapter XVI.: Of the Cultivation of Benevolence.
• Chapter XVII.: Employment of the Motive of Honour, Or of the Popular Sanction.
• Chapter XVIII.: Of the Employment of the Religious Sanction.
• Chapter XIX.: Uses to Be Drawn From the Power of Instruction.
• Chapter XX.: Use to Be Made of the Power of Education.
• Chapter XXI.: General Precautions Against the Abuse of Authority.
• Chapter XXII.: Measures to Be Taken Against the Ill Effects of an Offence Already Committed—conclusion of the Subject.

CHAPTER XIX.

§ 1.

Limits between Private Ethics and the Art of Legislation.

I.

So much for the division of offences in general. Now an offence is an act prohibited, or (what comes to the same thing) an act of which the contrary is commanded by the law: and what is it that the law can be employed in doing, besides prohibiting and commanding? It should seem, then, according to this view of the matter, that were we to have settled what may be proper to be done with relation to offences, we should thereby have settled every thing that may be proper to be done in the way of law. Yet that branch which concerns the method of dealing with offences, and which is termed sometimes the criminal, sometimes the penal, branch, is universally understood to be but one out of two branches which compose the whole subject of the art of legislation; that which is termed the civil being the other.‡ Between these two branches, then, it is evident enough there cannot but be a very intimate connection; so intimate is it indeed, that the limits between them are by no means easy to mark out. The case is the same in some degree between the whole business of legislation (civil and penal branches taken together) and that of private ethics. Of these several limits, however, it will be in a manner necessary to exhibit some idea: lest, on the one hand, we should seem to leave any part of the subject that does belong to us untouched, or, on the other hand, to deviate on any side into a track which does not belong to us.

In the course of this inquiry, that part of it I mean which concerns the limits between the civil and the penal branch of law, it will be necessary to settle a number of points, of which the connection with the main question might not at first sight be suspected. To ascertain what sort of a thing a law is; what the parts are, that are to be found in it; what it must contain in order to be complete; what the connection is between that part of a body of laws which belongs to the subject of procedure, and the rest of the law at large:—All these, it will be seen, are so many problems, which must be solved before any satisfactory answer can be given to the main question above mentioned.

Nor is this their only use: for it is evident enough, that the notion of a complete law must first be fixed, before the legislator can in any case know what it is he has to do, or when his work is done.

II.

Ethics at large may be defined, the art of directing men’s actions to the production of the greatest possible quantity of happiness, on the part of those whose interest is in view.

III.

What, then, are the actions which it can be in a man’s power to direct? They must be either his own actions, or those of other agents. Ethics, in as far as it is the art of directing a man’s own actions, may be styled the art of self-government, or private ethics.

IV.

What other agents, then, are there, which, at the same time that they are under the influence of man’s direction, are susceptible of happiness? They are of two sorts: 1. Other human beings, who are styled persons. 2. Other animals, which on account of their interests having been neglected by the insensibility of the ancient jurists, stand degraded into the class of things.§ As to other human beings, the art of directing their actions to the above end is what we mean, or at least the only thing which, upon the principle of utility, we ought to mean, by the art of government: which, in as far as the measures it displays itself in are of a permanent nature, is generally distinguished by the name of legislation: as it is by that of administration, when they are of a temporary nature, determined by the occurrences of the day.

V.

Now human creatures, considered with respect to the maturity of their faculties, are either in an adult, or in a non-adult state. The art of government, in as far as it concerns the direction of the actions of persons in a non-adult state, may be termed the art of education. In as far as this business is entrusted with those who, in virtue of some private relationship, are in the main the best disposed to take upon them, and the best able to discharge, this office, it may be termed the art of private education: in as far as it is exercised by those whose province it is to superintend the conduct of the whole community, it may be termed the art of public education.

VI.

As to ethics in general, a man’s happiness will depend, in the first place, upon such parts of his behaviour as none but himself are interested in; in the next place, upon such parts of it as may affect the happiness of those about him. In as far as his happiness depends upon the first-mentioned part of his behaviour, it is said to depend upon his duty to himself. Ethics, then, in as far as it is the art of directing a man’s actions in this respect, may be termed the art of discharging one’s duty to one’s self: and the quality which a man manifests by the discharge of this branch of duty (if duty it is to be called), is that of prudence. In as far as his happiness, and that of any other person or persons whose interests are considered, depends upon such parts of his behaviour as may affect the interests of those about him, it may be said to depend upon his duty to others; or, to use a phrase now somewhat antiquated, his duty to his neighbour. Ethics, then, in as far as it is the art of directing a man’s actions in this respect, may be termed the art of discharging one’s duty to one’s neighbour. Now the happiness of one’s neighbour may be consulted in two ways: 1. In a negative way, by forbearing to diminish it. 2. In a positive way, by studying to increase it. A man’s duty to his neighbour is accordingly partly negative and partly positive: to discharge the negative branch of it, is probity: to discharge the positive branch, beneficence.

VII.

It may here be asked, how it is that upon the principle of private ethics, legislation and religion out of the question, a man’s happiness depends upon such parts of his conduct as affect, immediately at least, the happiness of no one but himself: this is as much as to ask, What motives (independent of such as legislation and religion may chance to furnish) can one man have to consult the happiness of another? by what motives, or (which comes to the same thing) by what obligations, can he be bound to obey the dictates of probity and beneficence? In answer to this, it cannot but be admitted, that the only interests which a man at all times and upon all occasions is sure to find adequate motives for consulting, are his own. Notwithstanding this, there are no occasions in which a man has not some motives for consulting the happiness of other men. In the first place, he has, on all occasions, the purely social motive of sympathy or benevolence: in the next place, he has, on most occasions, the semisocial motives of love of amity and love of reputation. The motive of sympathy will act upon him with more or less effect, according to the bias of his sensibility:* the two other motives, according to a variety of circumstances, principally according to the strength of his intellectual powers, the firmness and steadiness of his mind, the quantum of his moral sensibility, and the characters of the people he has to deal with.

VIII.

Now private ethics has happiness for its end: and legislation can have no other. Private ethics concerns every member; that is, the happiness and the actions of every member of any community that can be proposed: and legislation can concern no more. Thus far, then, private ethics and the art of legislation go hand in hand. The end they have, or ought to have, in view, is of the same nature. The persons whose happiness they ought to have in view, as also the persons whose conduct they ought to be occupied in directing, are precisely the same. The very acts they ought to be conversant about, are even in a great measure the same. Where, then, lies the difference? In that the acts which they ought to be conversant about, though in a great measure, are not perfectly and throughout the same. There is no case in which a private man ought not to direct his own conduct to the production of his own happiness, and of that of his fellow-creatures: but there are cases in which the legislator ought not (in a direct way at least, and by means of punishment applied immediately to particular individual acts) to attempt to direct the conduct of the several other members of the community. Every act which promises to be beneficial upon the whole to the community (himself included), each individual ought to perform of himself: but it is not every such act that the legislator ought to compel him to perform. Every act which promises to be pernicious upon the whole to the community (himself included), each individual ought to abstain from of himself; but it is not every such act that the legislator ought to compel him to abstain from.

IX.

Where, then, is the line to be drawn?—We shall not have far to seek for it. The business is to give an idea of the cases in which ethics ought, and in which legislation ought not (in a direct manner at least) to interfere. If legislation interferes in a direct manner, it must be by punishment.† Now the cases in which punishment, meaning the punishment of the political sanction, ought not to be inflicted, have been already stated.‡ If, then, there be any of these cases in which, although legislation ought not, private ethics does or ought to interfere, these cases will serve to point out the limits between the two arts or branches of science. These cases, it may be remembered, are of four sorts: 1. Where punishment would be groundless. 2. Where it would be inefficacious. 3. Where it would be unprofitable. 4. Where it would be needless. Let us look over all these cases, and see whether in any of them there is room for the interference of private ethics, at the same time that there is none for the direct interference of legislation.

X.

1. First, then, as to the cases where punishment would be groundless. In these cases it is evident, that the restrictive interference of ethics would be groundless too. It is because, upon the whole, there is no evil in the act, that legislation ought not to endeavour to prevent it. No more, for the same reason, ought private ethics.

XI.

2. As to the cases in which punishment would be inefficacious. These, we may observe, may be divided into two sets or classes. The first do not depend at all upon the nature of the act: they turn only upon a defect in the timing of the punishment. The punishment in question is no more than what, for any thing that appears, ought to have been applied to the act in question. It ought, however, to have been applied at a different time; viz. not till after it had been properly denounced. These are the cases of an ex-post-facto law; of a judicial sentence beyond the law; and of a law not sufficiently promulgated. The acts here in question then might, for any thing that appears, come properly under the department even of coercive legislation: of course do they under that of private ethics. As to the other set of cases, in which punishment would be inefficacious; neither do these depend upon the nature of the act, that is, of the sort of act: they turn only upon some extraneous circumstances, with which an act of any sort may chance to be accompanied. These, however, are of such a nature as not only to exclude the application of legal punishment, but in general to leave little room for the influence of private ethics. These are the cases where the will could not be deterred from any act, even by the extraordinary force of artificial punishment; as in the cases of extreme infancy, insanity, and perfect intoxication: of course, therefore, it could not by such slender and precarious force as could be applied by private ethics. The case is in this respect the same, under the circumstances of unintentionality with respect to the event of the action, unconsciousness with regard to the circumstances, and mis-supposal with regard to the existence of circumstances which have not existed; as also where the force, even of extraordinary punishment, is rendered inoperative by the superior force of a physical danger or threatened mischief. It is evident, that in these cases, if the thunders of the law prove impotent, the whispers of simple morality can have but little influence.

XII.

3. As to the cases where punishment would be unprofitable. These are the cases which constitute the great field for the exclusive interference of private ethics. When a punishment is unprofitable, or in other words too expensive, it is because the evil of the punishment exceeds that of the offence. Now the evil of the punishment, we may remember,* is distinguishable into four branches: 1. The evil of coercion, including constraint or restraint, according as the act commanded is of the positive kind or the negative. 2. The evil of apprehension. 3. The evil of sufferance. 4. The derivative evils resulting to persons in connection with those by whom the three above-mentioned original evils are sustained. Now with respect to those original evils, the persons who he exposed to them may be two very different sets of persons. In the first place, persons who may have actually committed, or been prompted to commit, the acts really meant to be prohibited. In the next place, persons who may have performed, or been prompted to perform, such other acts as they fear may be in danger of being involved in the punishment designed only for the former. But of these two sets of acts, it is the former only that are pernicious: it is, therefore, the former only that it can be the business of private ethics to endeavour to prevent. The latter being by the supposition not mischievous, to prevent them is what it can no more be the business of ethics to endeavour at, than of legislation. It remains to show how it may happen, that there should be acts really pernicious, which, although they may very properly come under the censure of private ethics, may yet be no fit objects for the legislator to controul.

XIII.

Punishment, then, as applied to delinquency, may be unprofitable in both or either of two ways: 1. By the expense it would amount to, even supposing the application of it to be confined altogether to delinquency: 2. By the danger there may be of its involving the innocent in the fate designed only for the guilty. First, then, with regard to the cases in which the expense of the punishment, as applied to the guilty, would outweigh the profit to be made by it. These cases, it is evident, depend upon a certain proportion between the evil of the punishment and the evil of the offence. Now were the offence of such a nature, that a punishment which, in point of magnitude, should but just exceed the profit of it, would be sufficient to prevent it, it might be rather difficult perhaps to find an instance in which such punishment would clearly appear to be unprofitable. But the fact is, there are many cases in which a punishment, in order to have any chance of being efficacious, must, in point of magnitude, be raised a great deal above that level. Thus it is wherever the danger of detection is, or (what comes to the same thing,) is likely to appear to be, so small, as to make the punishment appear in a high degree uncertain. In this case it is necessary, as has been shown,† if punishment be at all applied, to raise it in point of magnitude as much as it falls short in point of certainty. It is evident, however, that all this can be but guess-work: and that the effect of such a proportion will be rendered precarious, by a variety of circumstances: by the want of sufficient promulgation on the part of the law:‡ by the particular circumstances of the temptation:∥ and by the circumstances influencing the sensibility of the several individuals who are exposed to it.§ Let the seducing motives be strong, the offence then will at any rate be frequently committed. Now and then indeed, owing to a coincidence of circumstances more or less extraordinary, it will be detected and by that means punished. But for the purpose of example, which is the principal one, an act of punishment, considered in itself, is of no use: what use it can be of, depends altogether upon the expectation it raises of similar punishment in future cases of similar delinquency. But this future punishment, it is evident, must always depend upon detection. If then the want of detection is such as must in general (especially to eyes fascinated by the force of the seducing motives) appear too improbable to be reckoned upon, the punishment, though it should be inflicted, may come to be of no use. Here, then, will be two opposite evils running on at the same time, yet neither of them reducing the quantum of the other: the evil of the disease and the evil of the painful and inefficacious remedy. It seems to be partly owing to some such considerations, that fornication for example, or the illicit commerce between the sexes, has commonly either gone altogether unpunished, or been punished in a degree inferior to that in which, on other accounts, legislators might have been disposed to punish it.

XIV.

Second, with regard to the cases in which political punishment, as applied to delinquency, may be unprofitable, in virtue of the danger there may be of its involving the innocent in the fate designed only for the guilty. Whence should this danger, then, arise? From the difficulty there may be of fixing the idea of the guilty action; that is, of subjecting it to such a definition as shall be clear and precise enough to guard effectually against misapplication. This difficulty may arise from either of two sources: the one permanent, to wit, the nature of the actions themselves: the other occasional, I mean the qualities of the men who may have to deal with those actions in the way of government. In as far as it arises from the latter of these sources, it may depend partly upon the use which the legislator may be able to make of language; partly upon the use which, according to the apprehension of the legislator, the judge may be disposed to make of it. As far as legislation is concerned, it will depend upon the degree of perfection to which the arts of language may have been carried; in the first place, in the nation in general; in the next place, by the legislator in particular. It is to a sense of this difficulty, as it should seem, that we may attribute the caution with which most legislators have abstained from subjecting to censure, on the part of the law, such actions as come under the notion of rudeness, for example, or treachery, or ingratitude. The attempt to bring acts of so vague and questionable a nature under the controul of law, will argue either a very immature age, in which the difficulties which give birth to that danger are not descried; or a very enlightened age, in which they are overcome.*

XV.

For the sake of obtaining the clearer idea of the limits between the art of legislation and private ethics, it may now be time to call to mind the distinctions above established with regard to ethics in general. The degree in which private ethics stands in need of the assistance of legislation, is different in the three branches of duty above distinguished. Of the rules of moral duty, those which seem to stand least in need of the assistance of legislation, are the rules of prudence. It can only be through some defect on the part of the understanding, if a man be ever deficient in point of duty to himself. If he does wrong, there is nothing else that it can be owing to, but either some inadvertence† or some missupposal,† with regard to the circumstances on which his happiness depends. It is a standing topic of complaint, that a man knows too little of himself. Be it so: but is it so certain that the legislator must know more?‡∥ It is plain, that of individuals the legislator can know nothing: concerning those points of conduct which depend upon the particular circumstances of each individual, it is plain, therefore, that he can determine nothing to advantage. It is only with respect to those broad lines of conduct in which all persons, or very large and permanent descriptions of persons, may be in a way to engage, that he can have any pretence for interfering; and even here the propriety of his interference will, in most instances, lie very open to dispute. At any rate, he must never expect to produce a perfect compliance by the mere force of the sanction of which he is himself the author. All he can hope to do, is to increase the efficacy of private ethics, by giving strength and direction to the influence of the moral sanction. With what chance of success, for example, would a legislator go about to extirpate drunkenness and fornication, by dint of legal punishment? Not all the tortures which ingenuity could invent would compass it: and, before he had made any progress worth regarding, such a mass of evil would be produced by the punishment, as would exceed, a thousand-fold, the utmost possible mischief of the offence. The great difficulty would be in the procuring evidence; an object which could not be attempted, with any probability of success, without spreading dismay through every family,* tearing the bonds of sympathy asunder,† and rooting out the influence of all the social motives. All that he can do, then, against offences of this nature, with any prospect of advantage, in the way of direct legislation, is to subject them, in cases of notoriety, to a slight censure, so as thereby to cover them with a slight shade of artificial disrepute.

XVI.

It may be observed, that with regard to this branch of duty, legislators have, in general, been disposed to carry their interference full as far as is expedient. The great difficulty here is, to persuade them to confine themselves within bounds. A thousand little passions and prejudices have led them to narrow the liberty of the subject in this line, in cases in which the punishment is either attended with no profit at all, or with none that will make up for the expense.

XVII.

The mischief of this sort of interference is more particularly conspicuous in the article of religion. The reasoning, in this case, is of the following stamp. There are certain errors, in matters of belief, to which all mankind are prone: and for these errors in judgment, it is the determination of a Being of infinite benevolence, to punish them with an infinity of torments. But from these errors the legislator himself is necessarily free: for the men who happen to be at hand for him to consult with, being men perfectly enlightened, unfettered, and unbiassed, have such advantages over all the rest of the world, that when they sit down to inquire out the truth relative to points so plain and so familiar as those in question, they cannot fail to find it. This being the case, when the sovereign sees his people ready to plunge headlong into an abyss of fire, shall he not stretch out a hand to save them? Such, for example, seems to have been the train of reasoning, and such the motives, which led Lewis the XIVth into those coercive measures which he took for the conversion of heretics, and the confirmation of true believers. The ground-work, pure sympathy and loving-kindness: the superstructure, all the miseries which the most determined maevolence could have devised.‡ But of this more fully in another place.∥

XVIII.

The rules of probity are those, which in point of expediency stand most in need of assistance on the part of the legislator, and in which, in point of fact, his interference has been most extensive. There are few cases in which it would be expedient to punish a man for hurting himself: but there are few cases, if any, in which it would not be expedient to punish a man for injuring his neighbour. With regard to that branch of probity which is opposed to offences against property, private ethics depends, in a manner, for its very existence upon legislation. Legislation must first determine what things are to be regarded as each man’s property, before the general rules of ethics, on this head, can have any particular application. The case is the same with regard to offences against the state. Without legislation there would be no such things as a state: no particular persons invested with powers to be exercised for the benefit of the rest. It is plain, therefore, that in this branch the interference of the legislator cannot any where be dispensed with. We must first know what are the dictates of legislation, before we can know what are the dictates of private ethics.§

XIX.

As to the rules of beneficence, these, as far as concerns matters of detail, must necessarily be abandoned in great measure to the jurisdiction of private ethics. In many cases the beneficial quality of the act depends essentially upon the disposition of the agent; that is, upon the motives by which he appears to have been prompted to perform it: upon their belonging to the head of sympathy, love of amity, or love of reputation; and not to any head of self-regarding motives, brought into play by the force of political constraint: in a word, upon their being such as denominate his conduct free and voluntary, according to one of the many senses given to those ambiguous expressions.* The limits of the law on this head seem, however, to be capable of being extended a good deal farther than they seem ever to have been extended hitherto. In particular, in cases where the person is in danger, why should it not be made the duty of every man to save another from mischief, when it can be done without prejudicing himself, as well as to abstain from bringing it on him? This, accordingly, is the idea pursued in the body of the work.†

XX.

To conclude this section, let us recapitulate and bring to a point the difference between private ethics, considered as an art or science, on the one hand, and that branch of jurisprudence which contains the art or science of legislation, on the other. Private ethics teaches how each man may dispose himself to pursue the course most conducive to his own happiness, by means of such motives as offer of themselves: the art of legislation (which may be considered as one branch of the science of jurisprudence) teaches how a multitude of men, composing a community, may be disposed to pursue that course which upon the whole is the most conducive to the happiness of the whole community, by means of motives to be applied by the legislator.

We come now to exhibit the limits between penal and civil jurisprudence. For this purpose it may be of use to give a distinct though summary view of the principal branches into which jurisprudence, considered in its utmost extent, is wont to be divided.

§ 2.

Jurisprudence, its Branches.

XXI.

Jurisprudence is a fictitious entity: nor can any meaning be found for the word, but by placing it in company with some word that shall be significative of a real entity. To know what is meant by jurisprudence, we must know, for example, what is meant by a book of jurisprudence. A book of jurisprudence can have but one or the other of two objects: 1. To ascertain what the law‡ is: 2. To ascertain what it ought to be. In the former case, it may be styled a book of expository jurisprudence: in the latter, a book of censorial jurisprudence; or, in other words, a book on the art of legislation.

XXII.

A book of expository jurisprudence is either authoritative or unauthoritative. It is styled authoritative, when it is composed by him who, by representing the state of the law to be so and so, causeth it so to be; that is, of the legislator himself: unauthoritative, when it is the work of any other person at large.

XXIII.

Now law, or the law, taken indefinitely, is an abstract and collective term; which, when it means any thing, can mean neither more nor less than the sum total of a number of individual laws taken together.∥ It follows, that of whatever other modifications the subject of a book of jurisprudence is susceptible, they must all of them be taken from some circumstance or other of which such individual laws, or the assemblages into which they may be sorted, are susceptible. The circumstances that have given rise to the principal branches of jurisprudence we are wont to hear of, seem to be as follow: 1. The extent of the laws in question in point of dominion. 2. The political quality of the persons whose conduct they undertake to regulate. 3. The time of their being in force. 4. The manner in which they are expressed. 5. The concern which they have with the article of punishment.

XXIV.

In the first place, in point of extent, what is delivered concerning the laws in question, may have reference either to the laws of such or such a nation or nations in particular, or to the laws of all nations whatsoever: in the first case, the book may be said to relate to local; in the other, to universal, jurisprudence.

Now of the infinite variety of nations there are upon the earth, there are no two which agree exactly in their laws: certainly not in the whole; perhaps not even in any single article: and let them agree to-day, they would disagree to-morrow. This is evident enough with regard to the substance of the laws: and it would be still more extraordinary if they agreed in point of form; that is, if they were conceived in precisely the same strings of words. What is more, as the languages of nations are commonly different, as well as their laws, it is seldom that, strictly speaking, they have so much as a single word in common. However, among the words that are appropriated to the subject of law, there are some that in all languages are pretty exactly correspondent to one another: which comes to the same thing nearly as if they were the same. Of this stamp, for example, are those which correspond to the words power, right, obligation, liberty, and many others.

It follows, that if there are any books which can, properly speakin, be styled books of universal jurisprudence, they must be looked for within very narrow limits. Among such as are expository, there can be none that are authoritative: nor even, as far as the substance of the laws is concerned, any that are unauthoritative. To be susceptible of an universal application, all that a book of the expository kind can have to treat of, is the import of words: to be, strictly speaking, universal, it must confine itself to terminology. Accordingly the definitions which there has been occasion here and there to intersperse in the course of the present work, and particularly the definition hereafter given of the word law, may be considered as matter belonging to the head of universal jurisprudence. Thus far in strictness of speech: though in point of usage, where a man, in laying down what he apprehends to be the law, extends his views to a few of the nations with which his own is most connected, it is common enough to consider what he writes as relating to universal jurisprudence.

It is in the censorial line that there is the greatest room for disquisitions that apply to the circumstances of all nations alike: and in this line, what regards the substance of the laws in question is as susceptible of an universal application, as what regards the words. That the laws of all nations, or even of any two nations, should coincide in all points, would be as ineligible as it is impossible: some leading points, however, there seem to be, in respect of which the laws of all civilized nations might, without inconvenience, be the same. To mark out some of these points will, as far as it goes, be the business of the body of this work.

XXV.

In the second place, with regard to the political quality of the persons whose conduct is the object of the law. These may, on any given occasion, be considered either as members of the same state, or as members of different states: in the first case, the law may be referred to the head of internal; in the second case, to that of international* jurisprudence.

Now as to any transactions which may take place between individuals who are subjects of different states, these are regulated by the internal laws, and decided upon by the internal tribunals, of the one or the other of those states: the case is the same where the sovereign of the one has any immediate transactions with a private member of the other: the sovereign reducing himself, pro re natâ, to the condition of a private person, as often as he submits his cause to either tribunal; whether by claiming a benefit, or defending himself against a burthen. There remain, then, the mutual transactions between sovereigns as such, for the subject of that branch of jurisprudence which may be properly and exclusively termed international.†

With what degree of propriety, rules for the conduct of persons of this description can come under the appellation of laws, is a question that must rest till the nature of the thing called a law shall have been more particularly unfolded.

It is evident enough, that international jurisprudence may, as well as internal, be censorial as well as expository; unauthoritative as well as authoritative.

XXVI.

Internal jurisprudence, again, may either concern all the members of a state indiscriminately, or such of them only as are connected in the way of residence, or otherwise, with a particular district. Jurisprudence is accordingly sometimes distinguished into national and provincial. But as the epithet provincial is hardly applicable to districts so small as many of those which have laws of their own are wont to be, such as towns, parishes, and manors; the term local (where universal jurisprudence is plainly out of the question) or the term particular, though this latter is not very characteristic, might either of them be more commodious.*

XXVII.

Third, with respect to time. In a work of the expository kind, the laws that are in question may either be such as are still in force at the time when the book is writing, or such as have ceased to be in force. In the latter case, the subject of it might be termed ancient; in the former, present or living jurisprudence: that is, if the substantive jurisprudence, and no other, must at any rate be employed, and that with an epithet in both cases. But the truth is, that a book of the former kind is rather a book of history than a book of jurisprudence; and, if the word jurisprudence be expressive of the subject, it is only with some such words as history or antiquities prefixed. And as the laws which are any where in question are supposed, if nothing appears to the contrary, to be those which are in force, no such epithet as that of present or living commonly appears.

Where a book is so circumstanced, that the laws which form the subject of it, though in force at the time of its being written, are in force no longer, that book is neither a book of living jurisprudence, nor a book on the history of jurisprudence: it is no longer the former, and it never was the latter. It is evident that, owing to the changes which from time to time must take place, in a greater or less degree, in every body of laws, every book of jurisprudence, which is of an expository nature, must, in the course of a few years, come to partake more or less of this condition.

The most common and most useful object of a history of jurisprudence, is to exhibit the circumstances that have attended the establishment of laws actually in force. But the exposition of the dead laws which have been superseded, is inseparably interwoven with that of the living ones which have superseded them. The great use of both these branches of science, is to furnish examples for the art of legislation.†

XXVIII.

Fourthly, in point of expression, the laws in question may subsist either in the form of statute, or in that of customary law.

As to the difference between these two branches (which respects only the article of form or expression) it cannot properly be made appear till some progress has been made in the definition of a law.

XXIX.

Last, the most intricate distinction of all, and that which comes most frequently on the carpet, is that which is made between the civil branch of jurisprudence and the penal; which latter is wont, in certain circumstances, to receive the name of criminal.

What is a penal code of laws? What a civil code? Of what nature are their contents? Is it that there are two sorts of laws, the one penal the other civil, so that the laws in a penal code are all penal laws, while the laws in a civil code are all civil laws? Or is it, that in every law there is some matter which is of a penal nature, and which therefore belongs to the penal code; and at the same time other matter which is of a civil nature, and which therefore belongs to the civil code? Or is it, that some laws belong to one code or the other exclusively, while others are divided between the two? To answer these questions in any manner that shall be tolerably satisfactory, it will be necessary to ascertain what a law is; meaning one entire but single law: and what are the parts into which a law, as such, is capable of being distinguished: or, in other words, to ascertain what the properties are that are to be found in every object which can with propriety receive the appellation of a law. This, then, will be the business of the third and fourth sections: what concerns the import of the word criminal, as applied to law, will be discussed separately in the fifth.*

ESSAY ON THE PROMULGATION OF LAWS, AND THE REASONS THEREOF; WITH SPECIMEN OF A PENAL CODE.

I.

PROMULGATION OF THE LAWS.*

Let us suppose the general code completed, and that the seal of the sovereign has been set to it. What remains to be done?

That a law may be obeyed, it is necessary that it should be known: that it may be known, it is necessary that it be promulgated. But to promulgate a law, it is not only necessary that it should be published with the sound of trumpet in the streets; not only that it should be read to the people; not only even that it should be printed: all these means may be good, but they may be all employed without accomplishing the essential object. They may possess more of the appearance than the reality of promulgation. To promulgate a law, is to present it to the minds of those who are to be governed by it in such manner as that they may have it habitually in their memories, and may possess every facility for consulting it, if they have any doubts respecting what it prescribes.

There are many methods of attaining this end: none of them ought to be neglected; but it has been too common to neglect them all. The forgetfulness of legislators in this respect has exceeded every thing which could have been imagined. I speak more particularly of modern legislators. We shall find models deserving of imitation in antiquity; and it is astonishing that the example which should have had the greatest weight among Christian nations, should have had scarcely any influence in this respect. They have borrowed from Moses, laws which possessed only a relative and local utility; but they have not imitated him in that which bears the noblest character of wisdom, and which is suited to all times and all places.

It is said by some naturalists, that the ostrich is among the most stupid of birds, inasmuch as it leaves its eggs in the sand, unmindful that the passing foot may crush them. If this were true, Bacon, who has converted into sources of wisdom so many of the ancient fables, might have turned it into an apologue; and the legislator who, after having framed his laws, abandons their promulgation to chance, and thinks that his task is finished when the most important of his duties has only begun, would have been represented by the ostrich.

It is true, that before laws can be promulgated, they must exist. That which is called unwritten law, which consists of rules of jurisprudence, is a law which governs without existing. The learned may exercise their ingenuity in guessing at it; but the unlearned citizen can never know it. Were these rules to receive an authentic form, and to be promulgated, they would no longer be mere rules, but would become real laws. To render them such, has been one of the great objects of my plan; and the facility of promulgation has been one of the principal objects which I have had in view. It is with this view that I have divided the general code into particular codes, that they may be separated or collected together, according to the powers and wants of the individuals whom they respectively concern.

To promulgate the English laws as they exist at present; to pile the decisions of the judges upon the top of the statutes of parliament, would be chimerical: it would be to present the sea to those that thirst: it would do nothing for the mass of the people, who would not be able to comprehend them. A point, say the mathematicians, has no parts: so neither are there any parts in chaos.

If the laws be good, it is desirable that they should be known; if otherwise, the knowledge of them may be mischievous: for example, if you leave in your code bad coercive laws, persecuting laws, it is well that they remain undiscovered by informers. If your laws of procedure favour the impunity of crimes; if they afford means of eluding justice, of evading taxes, of cheating creditors, it is well that they remain unknown. But what other system of legislation besides this will gain by being unknown?

There are some laws which seem to have a natural notoriety: such are those which concern crimes against individuals; as theft, personal injuries, fraud, murder, &c. But this notoriety does not extend to the punishment, which, however, is the motive upon which the legislature relies for procuring obedience to the law. It does not extend even to those circumstances, often so delicate, which must be noticed before the line of demarcation can be traced among so many crimes differently punished, nor even to those actions which are either innocent or meritorious.

The dissemination of the laws ought to be regulated by the number of persons whom they concern. The universal code ought to be promulgated to all. The particular codes ought to be set before the classes to which they respectively refer. A road-book is useful, but it is of most use to those who are to be guided by its regulations, and who wish to travel.

The universal code of all secular books would be the most valuable, and almost the only one necessary for all; if not as a book of law, at least as a book of morals.

The sacred books command men to be honest: a good code would explain in what justice consists, and would exhibit in what manner it was possible to be unjust.

Probity, prudence, benevolence; these are the subjects of morality. The law ought, however, to include all that relates to probity; all that teaches men to live together without injuring each other.

There will then remain for morality, prudence and benevolence: but secure probity, and prudence will have fewer snares to escape, and will walk more securely: prevent men from injuring one another, and benevolence will have fewer sufferings to relieve.

Methods of Promulgating the Universal Code.

Schools.

It ought to be made the chief book; one of the first objects of instruction in all schools: it formed the foundation of instruction among the Hebrews; and tradition relates, that the Jewish kings were required to make a copy of the whole law with their own hands.

In those cases in which a certain degree of education is required as a pre-requisite to the enjoyment of a certain employment, the aspirant might be required to produce an exact copy of the code, written with his own hand, or translated into a foreign language.

The most important parts of it might be committed to memory, and repeated as a catechism: that, for example, which contains the definition of offences, and the reasons for their being ranged into classes.

In this manner, before sixteen years of age, without hindrance to any other studies, the pupils in public schools would become more conversant with the laws of their country, than those lawyers at present are, whose hair has grown grey in the contentions of the bar. The change would arise out of the nature of the laws themselves.

The pupils might translate the national code into the dead languages; they might translate them into the living languages; they might turn them into verse, the mother tongue of the laws.

“Teach your children,” said an ancient philosopher, “what they ought to know when they are men, and not what they ought to forget.” This philosopher would not have condemned the new study I propose.

Churches.

Why should not the reading of the laws form, as it did among the Jews, a part of divine service? Would not the association of ideas be beneficial? Would it not be well to represent the supreme Being as the protector of the laws of property and security? Would it not add dignity to the ceremony, if the laws respecting parents and children were read upon the performance of baptism? and the laws respecting husbands and wives at the time of marriage?

This public reading in places of worship would be, as respects the most ignorant classes, a means of instruction, as little costly as it would be interesting; and the code would be unnecessarily voluminous, if it would not be possible to read it through many times in the year.

Different Places.

The laws which only concern certain places; as markets, theatres, highways; ought to be fixed up in the places themselves, where it is desirable that they should be present to the minds of those who have to observe them. There are few men who would dare to violate a law, speaking as it were to all eyes, and addressing itself to all as to so many witnesses upon whom it would call to bear testimony against the evil doer.

Translations.

If the nation which ought to obey the same laws is composed of different peoples, speaking different languages, it is proper that an authentic translation of the code should be made into each of these languages. It is also proper that it should be translated into the languages of the principal nations of Europe. The interests of these nations are so mingled, that they have all occasion to understand the laws of the others. Besides, it would prevent a stranger from falling into those faults which he might otherwise commit through ignorance of the law, and also guard him from the snares which otherwise might be laid for him by abusing his ignorance. Hence would arise security for commerce, and confidence in transactions among foreign nations. It is a proceeding called for by candour and honesty.

Have you any thing contrary to the ordinances of the king? is the foolish and insidious question asked at many custom-houses of the stranger, who, perhaps for the first time, enters the kingdom. How should he know those ordinances? He might reply, Does the king himself know them? My reply may constitute either a snare or an offence. Show me your ordinances in my own language, and then, if I deceive you, punish me.

Particular Codes.

In taking up a condition, every citizen should be obliged to provide himself with the code which relates to that condition. The code, according to its extent, should be printed as a book, or on a sheet. In those cases in which the whole code cannot be printed on a sheet, an abridgement or index to it ought so to be. This sheet should be required to be stuck up in a fixed place, and its exhibition in this manner should be made a matter of police, as it respects shops, places of amusement, theatres, &c. The rogues would doubtless be disposed to throw a veil over so unwelcome a witness against them; in the same manner as certain devotees are reported to have done, when they wished not to be seen by their saints.

Laws concerning Contracts.

There is one species of promulgation specially adapted to agreements among individuals and to wills. With regard to things of sufficient value, it might be required that they should be written upon stamped paper, which should bear upon its margin a notice of the laws concerning the transaction to which it referred. This plan is borrowed from English jurisprudence: but the instances in which it has been employed are very few, in comparison with those in which it has been neglected, and in which it would have been equally useful. I have gathered with carefulness this precious seed, that its cultivation may be extended.

II.

PROMULGATION OF REASONS.

For writing laws, it is enough to know how to write: for establishing them, it is only necessary to possess power. The difficulty consists in establishing good laws. Now good laws are those for which good reasons are assignable: but it is one thing to have established good laws justifiable by good reasons; another thing to have discovered those reasons, and to have presented them to view in the most advantageous light. A third problem, yet more difficult of solution, is to find a common base for all the laws; one unique and clear principle: to shew their harmony with it; to dispose them in the best order; to give them the greatest simplicity and the greatest clearness of which they are susceptible: to find an isolated reason for a law, is to do nothing. A comparative balance for and against is desirable, since we cannot rely with confidence upon a reason, unless we can be assured that there is nothing stronger to oppose to it in a contrary direction.

To the present time, reasons have been regarded as works of supererogation.* We need not be astonished at this. Legislators have been hitherto directed upon the most important points by a species of instinct: they have felt an evil; they have confusedly sought for a remedy. Laws have been made nearly in the same manner as the first towns were built. To look for a plan among these heaps of ordinances, would be like searching for an order of architecture amidst the huts of a village. Will it be believed, that it has been laid down as a principle that a law ought only to bear a character of absolute authority? Lord Chancellor Bacon, the great restorer of learning, will not allow that reasons should be assigned, because it might lead to disputes concerning the law.† He might, perhaps, have felt that the best reasons he could have given would have been found imperfect: he had no desire to satisfy the people; no inclination to take the pains necessary for satisfying them. Besides this, in his time the wisdom of kings scarcely differed from the divine: stet pro ratione voluntas, was their motto.

It must be acknowledged, that at the period at which Bacon lived, the notions respecting the principles of law were too imperfect to serve as the foundation of a reasonable system. He was more qualified than any one to expose the fallacy of the best reasons which could have been assigned for the greater part of the then existing laws; and therefore he might fear to expose them to a trial which they could not sustain. But this is no ground for fear, that laws founded upon reasons based in utility will be liable to be thus overthrown: when such a code shall have been accomplished, should all the lawyers in the world attack it with keenest appetites, what would be the result? They would be like vipers biting at a file.

There would have been many more codes supported by reasons, if those who have made the laws had believed themselves to be as superior in information to their fellow-men, as they felt themselves to be in power. Those who had felt themselves furnished with strength to enter upon the career, would not have renounced this more flattering part of their employment. If there had been no occasion to satisfy the people, they would have been desirous of satisfying themselves: they would have felt that it was not right to assume infallibility at the same moment that they renounced the guidance of reason. Those who are able to convince men, will treat them like men; those who only command, avow their inability to convince.

It is difficult, if not impossible, that the composition and sanction of a code of laws should proceed from the same hand. The situation in which a sovereign is placed, the kind of life to which he is accustomed, the duties he has to fulfil, absolutely exclude him from the knowledge of the details which such a work demands. Engaged in the labyrinths of jurisprudence, a Cæsar, a Charlemagne, a Frederick, would appear no more than an ordinary man. It is therefore impossible that such a work should be the result of the personal knowledge of a sovereign. Suppose a perfect code framed, the sovereign who should recognise its merit, and give it his support, would rank above all other sovereigns. He would not, however, be considered the author of the reasons by which the code was attended: these would have proceeded from the hand which penned them. The compiler of the code and the sovereign would each have their parts to act before the public. “You tell me,” might the latter say, “that the laws you have framed are only good and wise, and it is well: subject them to the proof.” “Sire,” might the compiler reply, “the laws which I have proposed are not the product of caprice; there is not a syllable which I have put there, for which there did not appear to me a good and conclusive reason; not a single regulation which did not appear to me the best that could be adopted under the present circumstances of your people. Permit me, then, to add my reasons throughout the whole of your code: by no other means can you be so completely assured of their merit, or I who have adopted or invented them, or the people who will have to obey them.”

Besides, if the name of the sovereign has most influence upon the present generation, that of the compiler will have most with the generations to come. Power, whilst living, may ally itself with the reputation of wisdom; but this union is dissolved by death. The veneration for great talents is increased when the foibles of the individual are forgotten, and when the dread of rivalry no longer exists. The veneration which thus attaches to the man of genius who is dead, will serve to protect his labours against precipitate change.

We proceed to consider, in greater detail, the different advantages which would result from a constant and sustained application of this method. An innovation always requires to be justified: an innovation which extends to the entire system of the laws, requires the strongest reasons for its justification.

We may observe, then, in general, that if the laws were constantly accompanied with a commentary of reasons, they would better fulfil the design of the legislator in all respects: they would be more pleasantly studied, more easily known, more constantly retained, and more cordially approved. All these desirable effects are intimately connected among themselves, and the attainment of either is one step towards obtaining the others.

If the study of the law is dry, it arises much less from the nature of the subject, than from the manner in which it has been treated. That which renders books of jurisprudence so dry and wearisome, is the confusion, the want of connection, the appearance of caprice, the difficulty of discovering any reason, and the barbarous nomenclature of the mass of incoherent and contradictory laws. Compilers have made their works an exercise of patience, and have addressed them only to the memory. The laws presented under this austere form appear only to require obedience, and never lay aside their severity. Let the laws be accompanied by justificatory reasons: this will shed a portion of interest over the laws themselves, and make the study of them agreeable. In reading the laws, we shall then learn to think, and shall discover the solution of many enigmas which had previously been inexplicable to us: by this means we shall enlarge and strengthen our minds; we shall be admitted into the counsels, as it were, of the philosophers and sages who have framed the laws, and shall find, in their works, a manual of philosophy and morals. The truths developed in the laws are interesting: and when they shall thus have been clearly arranged, and their connection exhibited, this study will become interesting to the young, instead of repulsive even to those who are compelled to engage in it. When it shall be shown to be connected with reason and philosophy, and shall have been rendered easy of acquisition, it will even become a disgrace not to be acquainted with it.

This exposition of reasons will render the laws more easily understood. A rule, the reason of which is unknown, takes no hold upon the understanding: those things are best comprehended, of which we know the why and the wherefore. The terms of law may be clear and familiar: add to them the reason of the law, and the light is increased; no doubt rests upon the real intention of the legislator; the mind of the reader holds immediate communion with the mind of the author.

The more clearly the laws are understood, the more easily will they be retained. The reasons annexed will serve as a kind of technical memory: they will serve as a species of cement, by which to unite all those regulations which would otherwise appear as fragments and dispersed ruins.

The reasons themselves would serve as a kind of guide in those cases in which the law was unknown: it would be possible to judge beforehand what its regulations would be; and by knowing the principles of the legislator, to place oneself by imagination in his situation; to divine or conjecture his will in the same manner as we conjecture what would be the determination of a reasonable being with whom we had long lived, and with whose maxims we were well acquainted.

But the greatest advantage is that which results from conciliating the approbation of all minds, by satisfying the public judgment, and obtaining obedience to the laws; not from a passive principle of blind fear alone, but with the concurrence of the will also.

When the people are dreaded, reasons are sometimes offered to them. But this extraordinary method rarely succeeds, because it is extraordinary: the people suspect there is some intention to deceive; they are put upon their guard, and yield rather to their mistrust than to their judgment.

Without reasons, all laws may be condemned or defended with equal blindness. If we listen to innovators, the most salutary law will be designated as tyrannical: if we listen to a crowd of lawyers, the most absurd law, if its origin be unknown, will pass for wisdom itself.

Exhibit the reasons of the laws, and you disarm all cheats and fanatics; because thus you will give to all discussions respecting the laws a clear and determinate object. There is the law: there is the reason assigned for that law. Is it a good reason? is it bad? The question is reduced to this simple issue. But those who have studied the progress of political quarrels, know that the object of the heads of parties especially is to avoid this fatal shoal, this examination of utility: personalities, antiquity, law of nature, laws of nations, and a thousand other terms of this kind, have been invented as a means of preventing recourse to this short method of shortening and resolving controversies.

If the laws were founded upon reason, they would infuse themselves, so to speak, into the minds of the people: they would form part of the logic of the people; they would extend their influence over their moral nature: the code of public opinion would be formed by analogy upon the code of the laws, and by the agreement between the man and the citizen: obedience to the laws would come to be hardly distinguishable from the feeling of liberty.

The commentary of reasons would be of great utility in the application of the laws: it would be a compass for the judges and all government functionaries. The reason assigned would unceasingly direct back to the intention of the legislator, all those who wandered from it. A false interpretation would not square with this reason: unintentional errors would become almost impossible: prevarications could not be hidden: the whole course of the law would be enlightened, and the citizens would judge the judges.

In a point of view still more enlarged, the adoption of this plan is recommended by its influence upon the perfection of the law. The necessity of furnishing a sufficient reason for every law, would be a preservative against a blind routine on the one hand, and a restraint to every thing arbitrary on the other. If you are required to state your reason for each proposition, it will be necessary to think, instead of to copy; to possess clear ideas, and to admit nothing without proof. There will no longer be any opportunity for preserving in the laws fantastic distinctions, useless regulations, unnecessary restraints: inconsistencies will become too prominent: the disproportion between good and evil will become too offensive. The most defective parts will continually tend towards amelioration upon the plan of the most perfect. Those parts which have attained the highest possible degree of perfection will never lose it: a good reason for their existence will always prove a safeguard, which will defend them against precipitate and capricious changes: a phalanx so strong will daunt the most audacious innovator. The strength of the reason will become the strength of the law: it will act as an anchor to prevent the vessel from being driven about by the force of the winds, or being insensibly drawn aside by the currents.

It may be said that the laws, and especially the most essential laws, are founded on such palpable truths, that it is unnecessary to prove them. The end of reasoning is conviction; but if complete conviction already exist, for what purpose employ reasoning to produce it?

There are truths which it is necessary to prove; not for their own sakes, because they are acknowledged, but that an opening may be made for the reception of other truths which depend upon them. It is necessary to demonstrate certain palpable truths, in order that others, which may depend upon them, may be adopted. It is in this manner we provide for the reception of first principles, which, once received, prepare the way for the admission of all other truths. All the world acknowledges that assassination is an evil action: its punishment ought to be severe: every body is agreed again. If it is necessary to analyze the mischievous effects of assassination, it will be necessary as a step towards bringing men to acknowledge the fitness of the law which distinguishes between different species of assassination, that it may only punish them according to their respective degrees of malignity; that those actions which bear the exterior characters of assassination, but do not produce its bitter fruits, may either not be punished, or only punished in a less degree: for example, suicide, duelling, infanticide, murder after violent provocation, &c.

In the same manner it is necessary to expose the evil of theft; not that men may be led to agree that theft is an evil, but that they may be led to acknowledge a multitude of other truths which, without this demonstration, would still be neglected. It is necessary that a variety of actions may be collected together under this head of crime, which have been hitherto neglected, and for detaching others which have no sufficient relation with crimes of this class: in a word, it is necessary for the purpose of collecting all the true and genuine species, and rejecting all the spurious, in order to establish the grounds for appointing different degrees of punishment.

Why should the laws of one state be unknown in every other? They have been thrown together at hazard, without connection, and without arrangement. There is no common measure among them. Without doubt, there are cases in which diversity of situation may demand diversity of legislation; but these cases can only exist in a few instances, and those much fewer than is usually imagined. In this respect, it will be proper to distinguish between an absolute and a temporary necessity: an absolute necessity is founded upon circumstances that cannot change; a temporary necessity is founded upon accidental circumstances, which may change.

If there be one method better calculated than another to bring nations more nearly together, this which I propose, of a system of laws founded upon reasons clearly announced, is one. The free communication of knowledge will propagate this system in all directions the instant it is created: such a system of legislation will prepare for itself a universal dominion.

Since philosophers have begun to compare the laws of different nations; when they have been able to divine any reason, to observe any relation of resemblance or of contrast, it has been a species of discovery. If legislators had been guided by the principle of utility, these researches would have been without an object: the laws derived from the same principle, tending towards the same object, would no longer present systems more ingenious than solid, in which we have to seek to find any reason at all; and in which, when any one fancies he finds a reason for a law, he thinks the law is justified.

Montesquieu has often misled his readers: he employs all his mind, that is to say, a mind of the first order, in discovering, amid the chaos of laws, the reasons which may have influenced the legislators. He has been desirous of lending them a wisdom of intention in institutions the most contradictory and the most extravagant. But when we agree with him that he has discovered their true motives, at what conclusion do we arrive? They acted upon a reason; but was this a good reason? If it were good in some respects, was it the best reason? If they had made a law directly opposed to it, would they not have done better? Such is the examination which always remains to be made: such is the examination to which he scarcely ever descends.

The science of legislation, though it has made but little progress, is much more simple than one would be led to believe, after reading Montesquieu. The principle of utility directs all reasons to a single centre: the reasons which apply to the detail of arrangements are only subordinate views of utility.

In the civil law, reasons should be drawn from four sources; that is to say, from the four objects, according to which the legislator ought to regulate his conduct in the distribution of private laws: subsistence, abundance, equality, security.

In penal laws, the reasons should be drawn from the nature of the evil of offences, and from that of the remedies of which they are susceptible. These remedies are of four kinds: preventive remedies, suppressive remedies, satisfactive remedies, penal remedies.

In the law of procedure, the reasons should equally derive their source from the different ends which ought to be kept in view: correctness of judgment, quickness, and economy.

In financial law, the reasons should be drawn from two principal objects: saving in expense, in order to avoid the evil of constraint; choice of the tax, in order to avoid its accessory inconveniencies.

There are some parts of the law in which the custom of assigning reasons has been followed to a certain point; in matters of police, of finance, and political economy. Their objects are modern: it has been necessary to create every thing, nothing relating to them being found in the ancient laws. What has been done, has been not only an invention, but a positive opposition to ancient usages and prejudices. Hence it has been necessary to combat them; it has been necessary that authority should justify itself. Such was the origin of those preambles to their laws, which procured so much credit to M. Turgot and M. Neckar.

But there are much more important branches of legislation, in which it has not been customary to assign any reasons: the civil code, the penal code, the code of procedure. If it has not been done, it is not that they have not dared to do it, but because they knew not how. Lawyers have among themselves a peculiar language, technical reasons, conventional fictions, a logic current at the bar: but they have an indistinct perception that the public will not receive it with the same complacency as themselves; that they will not be satisfied with the same jargon.

If the chancellors of kings had been such men as Turgot and Neckar, they, like them, would have felt more pride in giving their reasons than in making their edicts. In making laws, it is only necessary to occupy a certain position: in order to make a reasonable law, and to give reasons for it, it is requisite that the party be worthy of that position.

But an isolated reason is a mere trifle: the reasons for the laws, if they are good, are so connected, that unless they have been prepared for the whole body, they cannot with certainty be given for any part. Hence, in order to present in the most advantageous manner the reason for a single law, it is necessary that the plan of a system of reasons for all the laws should have been formed. It is necessary previously to have laid the foundation of a reasonable system of morality, to have analyzed the principle of utility, and to have separated it from the two false principles of sympathy and antipathy.

To give a reason for a law, is to show that it is conformable to the principle of utility.

In accordance with this principle, the repugnance which a certain action inspires is not a sufficient ground for its prohibition. Such a prohibition would only be founded upon the principle of antipathy.

The satisfaction which another action affords to us, is not a sufficient ground for a law authorising its performance. Such a law would be only founded upon the principle of sympathy.

The principal business of the laws, the only business which is evidently and incontestibly necessary, is the preventing of individuals from pursuing their own happiness, by the destruction of a greater portion of the happiness of others. To impose restraints upon the individual for his own welfare, is the business of education; the duty of the old towards the young; of the keeper towards the madman: it is rarely the duty of the legislator towards the people.

It is not a merely speculative idea which is thus recommended: a system of penal laws has been thus sketched out, and accompanied with a commentary of reasons, by which even the least important regulations are justified. I am so convinced of the necessity of this exposition of reasons, that I would not dispense with one of them at any price. To confide in what is called a feeling of justice, a feeling of truth, is a source of error. I have seen, upon a thousand occasions, that the greatest mistakes are concealed in all those feelings which are not brought to the touchstone of examination. If this feeling, this first guide, the avant courier of the mind, be correct, it will always be possible to translate it into the language of reason. Pains and pleasures, as I have repeatedly shown, are the only clear sources of ideas in morals. These ideas may be rendered familiar to all the world. The catechism of reasons is worthless, if it cannot be made the catechism of the people.

I add here, as an example of this theory, the first chapter of the Penal Code. I have not, however, given the whole of it, nor inserted all the forms and references which it ought to have, if it formed a part of the code itself. This species of precision would be superfluous here. This example may also serve as a recapitulation of this essay, by showing how its principles may be put in execution, and in what manner its theories may be carried into practice.

PENAL CODE.—

Table of Contents(1) , as shown by Titles of Chapters and Sections.

• PART I.—Offences collectively considered.
  • CHAPTER I.Subject matters of consideration: including those which give denomination to the several succeeding chapters.
  • CHAPTER II.Good and evil from human agency:—their progress in the community; their three stages: whence good and evil of the 1st, 2d, and 3d orders respectively.
  • CHAPTER III.Ends in view:—Axioms of mental pathology (2) Rules; principles; correspondency between these several subject matters.
  • CHAPTER IV.Division of Offences (See Part II. Offences severally considered) i. e. of acts of maleficence, which, in consideration of such their quality, are hereby proposed to be by appropriate inhibition converted into offences.
  • CHAPTER V.Offences, positive and negative.
  • CHAPTER VI.Offences, transitory and continuous: wherein of quarrels, and the acts of maleficence thereby producible.
  • CHAPTER VII.States of the Mind with reference to maleficence, including—
    • i. Evil consciousness,
    • ii. Heedlessness, and
    • iii. Blamelessness.
  • CHAPTER VIII.Instruments of Maleficence: which, in so far as inhibited, receive the name of delinquency:—including—
    • i. Illegal coercion,
    • ii. Illegal remuneration,
    • iii. Illegal deception:— In all their several shapes.
  • CHAPTER IX.Offences, inchoate and consummate, viz.:—
    • i. Designs.
    • ii. Preparations.
    • iii. Attempts.
    • iv. Consummations; or say, Perpetrations.
  • CHAPTER X.Co-Offenders, and Co-Delinquency, including the various modes of co-operation in the several Offences, viz.:—
    • i. Antecedential.
    • ii. Contemporaneous.
    • iii. Subsequential; with reference to the production of the maleficent effect.
  • CHAPTER XI.Justifications.
  • CHAPTER XII.Extenuations.
  • CHAPTER XIII.Aggravations.
  • CHAPTER XIV.Offences affecting Trust.
  • CHAPTER XV.Exemptions(3) , viz.:—from punishment, and other burthens produced by the application of appropriate remedies.
  • CHAPTER XVI.Remedies: viz. to the disorders producible by the several Offences. These remedies are,
    • i. Originally Preventive.
    • ii. Suppressive.
    • iii. Satisfactive.
    • iv. Punitive; and thereby subsequentially Preventive.
  • Included in the Satisfactive, are—
    • 1. Compensative.
    • 2. Restitutive, viz. either identical, or equivalent.
    • 3. Attestative.
    • 4. Expurgative, or say, vindicative.
    • 5. Vindictive.
  • CHAPTER XVII.Persons subject to this Code.
• PART II.(4.) —Offences severally(5)considered.
  • CLASS I.Private Offences(6)
  • CHAPTER I.Offences affecting the Person.
    • Sect. 1. Wrongful (7) corporal vexation—simple, or say, curable (8.)
    • 2. Wrongful morbification (9.)
    • 3. Wrongful disfigurement.
    • 4. Wrongful disablement.
    • 5. Wrongful mutilation.
    • 6. Wrongful homicide.
    • 7. Wrongful mental vexation—simple.
    • 8. Wrongful menacement—simple, or say, unconditional.
    • 9. Wrongful restriction, or say, restraint, at large.
    • 10. Wrongful compulsion, or say, constraint, at large.
    • 11. Wrongful imprisonment.
    • 12. Wrongful confinement.
    • 13. Wrongful banishment.
    • 14. Wrongful enslavement.
    • 15. Manstealing.
  • CHAPTER II.Offences affecting Title to Property—tangible or untangible—corporeal or incorporeal.
    • Sect. 1. Wrongful non-collation, of title to the property.
    • 2. Wrongful ablation of, &c.
    • 3. Usurpation of, &c.
    • 4. Wrongful transference of, &c.
    • 5. Wrongful interception of, &c.
    • 6. Wrongful depreciation, of title.
  • CHAPTER III.Offences affecting Use of Property, but not Title, otherwise than so far as conferred by possession.
    • Sect. 1. Wrongful detention, or say, detinue, or detainer.
    • 2. Wrongful asportation.
    • 3. Wrongful destruction.
    • 4. Wrongful deterioration.
    • 5. Wrongful disturbance of occupation.
    • 6. Wrongful interception of occupation.
    • 7. Wrongful occupation.
    • 8. Theft; or say, wrongful asportation, without supposition of title.
    • 9. Embezzlement, or say, wrongful detention, without supposition of title.
    • 10. Fraudulent obtainment.
    • 11. Extortion.
    • 12. Peculation.
    • 13. Wrongful damnification, or say, production of loss.
    • 14. Wrongful interception of profit.
  • CHAPTER IV.Offences affecting Title to Power, considered as a benefit.
    • Sect. 1. Wrongful non-collation.
    • 2. Wrongful ablation.
    • 3. Usurpation.
    • 4. Wrongful transference.
    • 5. Wrongful interception.
  • CHAPTER V.Offences affecting the Exercise of Power.
    • Sect. 1. Wrongful disobedience to ordinances or mandates.
    • 2. Wrongful resistance to the exercise of the power.
    • 3. Wrongful disturbance of the exercise of the power.
    • 4. Wrongful exercise, or say, mis-exercise, of the power.
  • CHAPTER VI.Offences affecting Reputation.
    • Sect. 1. Wrongful defamation.
    • 2. Wrongful vituperation.
    • 3. Insultive vituperation.
    • 4. Usurpation of reputation.
    • 5. Wrongful transference of reputation.
    • 6. Wrongful interception of reputation.
  • CHAPTER VII.Offences affecting Person and Property: Title, not otherwise than in so far as conferred by possession.
    • Sect. 1. Wrongful destruction forcible.
    • 2. Wrongful deterioration forcible.
    • 3. Wrongful detention forcible.
    • 4. Wrongful asportation forcible.
    • 5. Wrongful profit-interception forcible.
    • 6. Wrongful occupation forcible.
    • 7. Simple robbery.
    • 8. Highway robbery.
    • 9. Day habitation robbery.
    • 10. Night habitation robbery.
    • 11. Rioting.
  • CHAPTER VIII.Offences affecting Person and Reputation.
    • Sect. 1. Wrongful insulting, or say, ignominious corporal vexation.
    • 2. Wrongful insulting menacement, or say, ignominious mention.
    • 3. Challenging to fight.
    • 4. Sexual seduction, allurative or say, enticitive.
    • 5. Sexual seduction compulsory.
    • 6. Rape.
    • 7. Vexation by lascivious contrectation.
  • CHAPTER IX.Offences affecting Property and Reputation.
    • Sect. 1. Usurpation of reputation of inventorship:—authorship included.
    • 2. Wrongful ascription of reputation of inventorship.
    • 3. Usurpation of reputation of fabricatorship.
    • 4. Wrongful ascription of reputation of fabricatorship.
    • 5. Usurpation of reputation of vendorship.
    • 6. Wrongful ascription of reputation of vendorship.
  • CHAPTER X.Offences affecting exclusive Title to Property in—
    • 1. Inventorship (10.)
    • 2. Fabricatorship.
    • 3. Vendorship. These are the same as those affecting title to property: as per Ch. ii., which see: the exclusiveness having for its result a species of property.
  • CHAPTER XI.Offences respecting Onerous Obligation.
    • Sect. 1. Wrongful oneration.
    • 2. Wrongful self-exoneration.
    • 3. Wrongful exoneration.
    • 4. Wrongful trans-exoneration.
    • 5. Wrongful non-susception.
  • CHAPTER XII.Offences affecting Trust. See Part 1. Offences collectively, Ch. xiv. Trust is Power, charged with onerous obligation, giving direction to the use made of it.
  • CHAPTER XIII.Offences affecting Title to Exemption, viz. from Onerous Obligation. See Offences affecting Title to Power, Ch. iv.
  • CHAPTER XIV.Offences affecting Title to Conditions in Life(11.)
    • i.Considered as beneficial.
      • Sect. 1. Wrongful non-collation.
      • 2. Wrongful ablation.
      • 3. Usurpation.
      • 4. Wrongful transference.
      • 5. Wrongful interception.
    • ii.Considered as burthensome.
      • Sect. 6. i. Wrongful imposition.
      • 7. ii. Wrongful exoneration.
      • 8. iii. Wrongful non-susception.
      • 9. iv. Wrongful self-exoneration.
      • 10. v. Wrongful transference.
  • CHAPTER XV.Offences affecting enjoyment from Condition in Life.
    • Sect. 1. Wrongful detention of child, ward, servant, wife.
    • 2. Wrongful asportation, of child, ward, servant, wife.
    • 3. Wrongful disturbance, of occupation as to child, ward, servant, wife.
    • 4. Wrongful occupation, of child, ward, servant, wife.
    • 5. Wrongful disobedience, by child, ward, servant, wife.
    • 6. Wrongful desertion, of child, ward, servant, wife (12.)
    • 7. Elopement.
    • 8. Person stealing (13.)
  • CHAPTER XVI.Offences affecting Title, to fractional, and other, miscellaneous rights; to wit, to services in miscellaneous shapes; those rendered due by contract, included.
    • Sect. 1 to 5. Non-collation, &c., as per Ch. xiv.
  • CHAPTER XVII.Offences affecting the enjoyment of Miscellaneous Rights.
    • Sect. 1. Wrongful non-reddition of the correspondent appropriate services.
    • 2. Obstruction to reddition of correspondent services. See Ch. xvi.
  • CLASS II.Semi-Public Offences.
    • 1.A Private Offence is converted into a Semi-Public Offence of the same denomination by the numerousness, coupled with the individual unassignableness of the persons affected by the offence.
    • 2. So, into a Public Offence, by the condition in life, or say, situation of a party wronged: his situation being that of a public functionary.
    • 3. Offences affecting person and property, are, by the extent of the evil, converted into Semi-Public Offences, giving existence or increase to calamity(14.)
  • CLASS III.Public Offences.
  • CHAPTER XVIII.Offences affecting the exercise of Sovereign Power.
    • Sect. 1. Rebellion offensive.
    • 2. Rebellion defensive.
    • 3. Treason, or say, Foreign-hostility-procuring or abetting.
    • 4. Foreign-hostility-provoking.
    • ☞ For the other offences, see the several Chapters under the head of Private Offences.
  • CHAPTER XIX.Offences affecting Justice, or say, the Judiciary power.
    • ☞ For offences affecting the Title, see Ch. ii. Specific modifications and denominations will be determined by the language employed in the Constitutional Code, Ch. xii. Judiciary collectively, and the sixteen next ensuing chapters.
  • CHAPTER XX.Offences affecting the Defensive Force.
    • ☞ For these, see the corresponding Sections in the Constitutional Code, Ch. x. Defensive Force.
  • CHAPTER XXI.Offences affecting the Revenue.
    • Sect. 1. Contrabandism, or say wrongful non-reddition or due pecuniary service.
  • CHAPTER XXII.Offences affecting Trade.
    • Sect. 1. Miscommercialism, or say, Mistrading.
  • CHAPTER XXIII.Offences affecting Foreign States.
    • Sect. 1. Offences affecting foreigners individually.
    • 2. Offences affecting foreigners collectively, or say, foreign governments.

SPECIMEN OF A PENAL CODE.*

Of Simple Personal Injuries.

Simple†Corporal Injury is either positive or negative. There is positive simple corporal injury, when, without lawful cause,a an individual has caused,b or contributedc to cause, to another, a corporal pain, either light or weighty,d which is not followed by any ulterior corporal evil.e There is simple corporal injury,f when, without lawful cause, an individual, seeing another in danger, abstains from helping him,g and the evil happens in consequence.

PUNISHMENTS.

1. Fine. At the discretion of the tribunal.

2. Imprisonment. At the option and discretion of the tribunal.

3. Security for good Conduct. This also at option and discretion.

4. In very grave cases, Banishment from the presence of the party injured, for a time or for ever. This also at option and discretion.

5. Costs. At option and discretion.

N.B. Each of these articles requires references to the different sections of the general head of “Punishments;” there, the phrases at option and discretion should be explained.

At option, is a concise method of expressing that it will be lawful for the judge either to employ this punishment or not.

At discretion, signifies that the judge ought to employ a certain portion of this punishment, with this limitation, that he should employ so much or so little, as shall be conformable to the general rules prescribed to him under the general head of “Punishments.”‡

AGGRAVATIONS.

1. Superiority of Age. When the offended person is older than the offender.

2. Sex. When the party injured is a female, and the delinquent a male.

The extra-portion of the punishment ought to consist of a characteristic penance, at the choice of the tribunal, with greater or less publicity, at its discretion.

3. Weakness. When the party injured is the inferior, either as respects natural strength or difference of weapons, so that he had no chance of defending himself with success.

4. Numbers. When, on account of the number of aggressors, resistance was unequal or impossible.

5. Parental Relation. When the party injured stands in the relation of father or mother, grandfather or grandmother, to the delinquent.

The delinquent in such case should always, in addition to the ordinary punishment, undergo a penance, more or less public, upon the stool of repentance, with his hands tied above his head, and an inscription stating his offence.

6. Quasi-paternity. When the delinquent is a minor, and the party injured his guardian, his preceptor, or his master.* He who brings us up is a second parent. This circumstance will still have some force; but it will be less when the delinquent has attained his majority.

If there be no ground of extenuation, an extra portion of characteristic punishment should be awarded, as for a like injury done to a parent.

7. Premeditation. The longer an offence is premeditated, the greater is the aggravation. It is written, “Let not the sun go down upon your wrath.”

8. Nocturnal Irruption. This is the case when the premeditated offence is committed at night, after being concealed on the premises to wait a favourable opportunity, or when the offender has broken in, or has attempted to break into the dwelling of the party injured.

The extra portion of punishment should be characteristical at the option of the tribunal, and attended with more or less publicity at discretion.

9. Ambuscade. As when an offender makes a sudden attack upon his adversary when unprepared; as if, for example, he hide himself behind a wall, a hedge, or in a hollow way, or spreads his snare by night.

10. Violation of Asylum.

11. Violation of Sleep.

12. Clandestinity. As when the delinquent endeavours to hide himself, or to evade, by other means, the pursuit of justice.

13. Disguise. As when the delinquent, either by wearing a mask, or other clothes than his own, seeks to render himself unknown.

As an extra-punishment, he may be exposed to a penance, more or less public, in an iron mask, or in a dress similar to that in which he had disguised himself.†

14. Salary. When the delinquent has been hired to commit the crime.

A characteristic punishment would be a more or less public exhibition of the delinquent, with the wages of his iniquity suspended about his neck.

There are some cases in which this punishment ought not to be inflicted, unless the offence is a very grave one. The first is, when it has not been premeditated, and when the suborner can shew some provocation received: the second is, when the suborner, thus provoked, is the weaker, or of a superior rank to the party injured.

15. Project of Coercion. When the object of the offence is to compel the party injured to do or not to do a certain thing; the offence nevertheless not being a theft or an act of clandestine or violent destruction.

Extra punishment, characteristic punishment, the extortion press, the cap of repentance: these at option of the tribunal.

Fine, even to the whole of his property; confinement, banishment, forced labour, limited or perpetual: these at discretion.

EXTENUATIONS.

When the delinquent has really received, or sincerely believes himself to have received, a provocation from the party injured, this may be a source of extenuation. That which constitutes the provocation is a wrong: this wrong may be of a legal or moral kind.

EXPLANATIONS.

The sincere persuasion of even an imaginary wrong, furnishes some degree of extenuation. It is of no consequence whether the erroneous supposition in this case rest upon a point of fact or a point of law. It turns upon a point of fact, when you believe that you have received a certain damage from your adversary, and he has really not done it to you: it turns upon a point of law, when you believe that he has no right to do you a certain damage, and he really has the right to do it.

It is of no consequence to whom the wrong in question immediately refers: whether to the party himself provoked, or to any person particularly dear to him; or to the public in general, for the interests of the public ought to be dear to every one; or to the person himself who gave the provocation, for each individual should be dear to every man: consequently, if you think you see any one plunging into vice, and the vexation with which you resent his evil conduct lead you to strike him, it is a less crime than if you had struck him in the course of a quarrel arising out of your own interests.

The wrong done may be either moral or legal. A legal wrong is one which is punishable by the laws: a moral wrong may be any act, whether punishable by the laws or not, which being hurtful to the party injured, is liable to be punished by the censure of the world: for example, an act of violence, of perfidy, or of ingratitude.

GENERAL OBSERVATION.

The extenuation furnished by provocation, is greatest in proportion to the following circumstances: 1. The gravity of the wrong. 2. The recentness of its date. 3. The difficulty which the injured party might have in obtaining legal redress.

EXPLANATIONS.

The gravity of the wrong, upon this occasion, ought not to be estimated simply according to the evil of such an offence to society in general, but with a view to its tendency particularly to excite resentment: consequently, a personal insult, or an act of defamation, constitutes a strongerprovocation than a theft.

The date of a provocation requires some particular remarks. At the same distance of time, a provocation may be more or less lively, according to its magnitude: that which weighs down the heart may be yet recent; whilst another, which is lighter in comparison, may be forgotten. However, as a boundary is requisite, a provocation ought not to be esteemed recent, if more than a month have elapsed between the time of its receipt, and the occurrence of the fact to which it is alleged to have given rise.

A provocation should be dated, not from the time when it occurred, but from the time when it came to the knowledge of the party injured; and even every circumstance adding much to the malignity of the action, and only becoming known after the other parts had been known, should be deemed a renewal of the provocation: thus, if after having learned that a man had beaten your son;—a month afterwards you should learn that your son had lost an arm in consequence of the blows; or that a man with arms had fallen upon your son, who was disarmed, and that he had struck him after he asked for quarter: if you should attack this man in consequence, and beat him, the provocation in this case ought to be deemed recent.

Thus a train of distinct provocations, which are all recent with respect one to another, and of which the last is recent with relation to the fact in question, ought all to be esteemed recent in relation to this fact. This succession is what properly constitutes the unity of the quarrel.

SECOND EXTENUATION.

If a man, in defending his person or his property from attack, does more injury to his adversary than was necessary for its defence, the surplus is an injury; but an injury susceptible of excuse, in consequence of the provocation. This is even the most favourable case, since it is not only recent, but immediate.

In judging whether an attack could be repulsed with less evil to the aggressor, it is necessary to place oneself in the place of the attacked, and to recollect, that in the agitation of his mind he could not coolly consider all his means of defence, and choose precisely that which should accomplish his purpose with the least possible evil to his adversary. There is a great difference in this respect between the quiet of the closet and the bustle of action.

Suppose that a man suddenly assail you with a stick, and that there is at your door a stick and a bar of iron: you seize the bar of iron and strike the man a dangerous blow, or kill him. This ought to be deemed justifiable self-defence, unless it could be proved that you had deliberately taken the bar of iron in preference to the stick, with the intention of killing him, or wounding him more than was necessary for your security.

COMMENTARY OF REASONS UPON THIS LAW.

First Question. Why are the slightest injuries of this kind rendered punishable?

Answer. Because there is always a reason for punishing it. There is no sensation, how indifferent soever it may appear, which may not become an intolerable torment from its duration or its repetition. Let any one be allowed to touch your person in any manner whatsoever without being called to account for it: he may abuse this liberty so much as to render your life a burthen to you: you become in effect his slave: you will live in a state of perpetual fear, and the feeling of your inferiority will never quit you.

On the other hand, if the offence is slight, the punishment may be so also; and how small soever the injury may be, the punishment may be diminished in proportion; because the judge may exercise his powers of discretion in this respect on the side of gentleness.

Second Question. Why are negative offences of this class rendered punishable, as well as positive offences?

Answer. Because in the one case, as well as the other, the punishment is well grounded, is efficacious, is necessary.

Third Question. Why is an ulterior punishment added to that which is included in the obligation to render compensation for the evil done?

Answer. Without this additional punishment, it will not, in every case, be certain that the amount of punishment exceeds the profit of the offence. How can it be ascertained that the compensation directed by the judge entirely accomplished its purpose? If it be not complete, the offended party, so to speak, loses; and the offender gains. Besides, there are differences in fortune, with regard to which a proportion is with difficulty established. It is much for one to receive a certain sum: it is very little for another to pay it. The rich would be led to persuade themselves, that for a certain price they might satisfy their resentment towards those of an inferior rank.

Fourth Question. Why is a fine found among the articles of punishment?

Answer. Because money levied by way of fine produces a double advantage: as punishment, by its effect on the delinquent; as a tax, which tends to diminish by its amount the taxes imposed upon the honest citizens.

Fifth Question. Why employ imprisonment?

Answer. To provide for the case in which the delinquent shall not have wherewith to pay a fine. Also to provide for the case of a delinquent secretly supported by a party: a punishment purely pecuniary would not at all affect him.

Sixth Question. Why require security?

Answer. In order to prevent or stifle all design which the offender may have of avenging himself upon his adversary for having brought him to justice, and delivered him up to punishment.

Seventh Question. Why employ banishment from the presence of the injured party?

Answer. Because there are some cases in which this punishment would be necessary, still farther to humble the offender; and there are other cases in which the offended party ought to be spared further suffering. Offences of this class are very various. There is no degree of torment so frightful, which may not belong to them. It may therefore happen that the sight of the offender may prove a source of suffering to the offended person for a long period, and even for ever. If one of the two must avoid the other, it is more fitting the inconveniences of the removal should fall upon the guilty, rather than upon his innocent antagonist whom he has already injured.

Eighth Question. Why is age a circumstance of aggravation?

Answer. In order that the text of the law itself may be a lesson of morality; insomuch that young persons, seeing that the law itself shows a particular regard to their superiors in age, may contract a disposition always to treat them with particular respect. It is by age that men acquire experience; and by experience, wisdom. The respect of the youngest for the eldest will therefore prove reciprocally profitable.

Ninth Question. Why is a particular protection extended to females?

Answer. A moral object is again in view: it is proper to inspire them with a most delicate sense of honour; and this object is attained by increasing the guilt of every injury done towards them. Besides, the law ought to inspire men with a disposition of peculiar regard for females, because they are not all beautiful, and beauty does not last for ever; whilst the men have a constant superiority over the women, on account of their superior strength. There may also, perhaps, be a superiority of mental strength, either derived from nature or acquired by exercise.

Tenth Question. Why should an injury of this class done to a parent be punished with greater severity?

Answer. For a moral end. An habitual disposition in children and minors to respect their parents, is useful even to themselves; that they may the more readily submit themselves to the guidance of those who know best what is most suitable for them, and who desire their welfare: it is useful to the parents, to whom it serves as a recompense for their expenses, their fears, and the cares of education: it is also useful to the state; because it encourages men to marry, and from families, which constitute the wealth and strength of a state.

Some of these reasons, independently of the consideration of age, apply to guardians, teachers, and masters.

Eleventh Question. Why is premeditation a source of aggravation?

Answer. The greater the pertinacity a man displays in his resentments, the more danger is to be apprehended from him: the longer his desire of vengeance continues, the more probable is it that it will be gratified. If a man who is irritated against you, throw about fire and flame; if his irritation continue for one day only, you will be secure if you are protected for a day: but if he persevere in his intentions of avenging himself during ten days, the danger to which you are exposed from him is ten times as great as in the former case. Those who hear of your quarrel with him understand this, and experience a secret uneasiness, when they recollect that they have so dangerous a character among them. They may not understand the precise reason of what they feel; but this is the cause of the difference in the public feeling towards persons who entertain projects of revenge for a longer or a shorter time.

2. Besides, the longer a man is governed by hostile feelings upon a given occasion, the stronger proof he gives of perverse anti-social dispositions. The punishment must be more severe which is to operate upon a hardened character: that which would be sufficient to soften and correct a naturally benevolent mind, would have no effect upon an implacable and barbarous heart. Such characters must be restrained by greater terrors.

Twelfth Question. Why are the different circumstances of attack by night, lying in ambush, and violation of domicile, when accompanied by premeditation, considered as aggravations?

Answer. These different circumstances all tend to increase the danger and terror of the individual attacked; but especially when the domicile is violated; when a man sees himself forced in his last entrenchment, in his interior asylum, which holds all that is most dear to him, and in which he retires to sleep with confidence. If your adversary await you out of doors, you can take precautions against him: you are safe while you remain at home; but if doors and walls do not stop him, you have security nowhere. Such is the reflection which arises in every mind, and produces general alarm.

But if a quarrel begin at night, nocturnity is not a circumstance of aggravation. Even nocturnal irruption into the house would neither be so dangerous nor so alarming, when the individual, warned by threats, was able to take measures for escape or defence.

Thirteenth Question. Why is clandestinity made a source of aggravation?

Answer. Because it augments the mischief of the offence: it adds terror to suffering, and may render a man the most miserable of beings, by making him dread a succession of similar injuries, to which he could see no end, as he could possess no defence against an invisible enemy. In ordinary cases, where we know the author of an offence, we may have the protection of the laws: we may be sure, that if the evil is not repaired, at least that it shall not be augmented, it will not remain unpunished. But if the delinquent can hide himself behind a curtain, so as neither to be known nor suspected, he has all the profit of the crime: he laughs at the laws, and makes a jest of the terrors they ought to inspire. It is necessary, therefore, to take from him the desire to have recourse to inventions of this kind, by presenting to him the frightful prospect of an extraordinary degree of punishment, in case his subtleties should be detected. His artifices will appear less seductive, when accompanied with such fears.

Fourteenth Question. Why is disguise distinguished, as respects its punishment, from other means of clandestinity?

Answer. Disguise may increase terror to an extreme degree: a deformed mask, a long crape, a white veil which dresses up a phantom, may have the strongest effect upon the imagination; particularly upon weak and superstitious persons or invalids; upon women and children. This circumstance also furnishes a favourable opportunity for the use of a characteristic and striking punishment.

Fifteenth Question. Why is the circumstance of wages an aggravation?

Answer. First, Because it increases the alarm and danger: when a man beats another in his own quarrel, this violence inspires fears only in those who quarrel with him; but when a man, for the sake of money, engages in the quarrel of another, all who may chance to have a dispute with any one may dread the bravo by profession. Many persons who now believe themselves secure, because those with whom they have quarrelled are weak and timid, will live in a state of continual alarm, when they learn that there are men who sell their strength and courage to those who will buy them; and that their enemies may be able to do, by means of these strangers, what they could not do of themselves. The danger will appear the greater, in proportion as their enemies are rich, and are able to offer great rewards for such services; a circumstance which would tend to redouble the inevitable inconveniences of the unequal distribution of wealth, and which would add to the facility with which the rich might humble and oppress the poor.

Secondly: One such action indicates the vilest and most depraved character: the motive of pecuniary interest has clearly over-powered all the social motives, and it is only the dread of an extraordinary degree of punishment which can restrain so atrocious a fool.

Sixteenth Question. Why is provocation a source of extenuation?

Answer. This circumstance diminishes the mischief of the crime, as respects the evil of the second order. When a man, provoked to a certain degree, does mischief, he may be dangerous; but it is only when thus provoked. As long as we conduct ourselves towards him, as every body ought to behave to such persons, we have nothing to fear from him: we must have secretly formed the design of offending him, if we are alarmed at the vengeance which such provocation would call down.

Even an imaginary provocation, provided that the error has been real, is a source of extenuation, for the same reasons as a real provocation: the extent of the extenuation, however, is less in this case; but only from the difficulty of ascertaining the point of fact, namely, the sincerity of him who has believed himself to be provoked, without having been so.

Seventeenth Question. Why is excess in self-defence a source of extenuation?

Answer. This circumstance operates in the same manner as the preceding but with more force. The man who in his own defence does greater mischief than his own defence required, need only be dreaded by those who attack him.

ESSAY ON THE INFLUENCE OF TIME AND PLACE IN MATTERS OF LEGISLATION.

[‡ ]And the constitutional branch, what is become of it? Such is the question which many a reader will be apt to put. An answer that might be given is, that the matter of it might without much violence be distributed under the two other heads. But, as far as recollection serves, that branch, notwithstanding its importance, and its capacity of being lodged separately from the other matter, had at that time scarcely presented itself to my view in the character of a distinct one: the thread of my inquiries had not as yet reached it. But in the concluding note of this same chapter, in paragraphs 22 to the end, the omission may be seen in some measure supplied.

[§ ]Under the Gentoo and Mahometan religions, the interests of the rest of the animal creation seem to have met with some attention. Why have they not, universally, with as much as those of human creatures, allowance made for the difference in point of sensibility? Because the laws that are, have been the work of mutual fear; a sentiment which the less rational animals have not had the same means as man has of turning to account. Why ought they not? No reason can be given. If the being eaten were all, there is very good reason why we should be suffered to eat such of them as we like to eat: we are the better for it, and they are never the worse. They have none of those long-protracted anticipations of future misery which we have. The death they suffer in our hands commonly is, and always may be, a speedier, and by that means a less painful one, than that which would await them in the inevitable course of nature. If the being killed were all, there is very good reason why we should be suffered to kill such as molest us: we should be the worse for their living, and they are never the worse of being dead. But is there any reason why we should be suffered to torment them? Not any that I can see. Are there any why we should not be suffered to torment them? Yes, several. See B. I. tit. [Cruelty to Animals.] The day has been, I grieve to say in many places it is not yet past, in which the greater part of the species, under the denomination of slaves, have been treated by the law exactly upon the same footing, as, in England for example, the inferior races of animals are still. The day may come, when the rest of the animal creation may acquire those rights which never could have been withholden from them but by the hand of tyranny. The French have already discovered that the blackness of the skin is no reason why a human being should be abandoned without redress to the caprice of a tormentor.a It may come one day to be recognised, that the number of the legs, the villosity of the skin, or the termination of the os sacrum, are reasons equally insufficient for abandoning a sensitive being to the same fate? What else is it that should trace the insuperable line? Is it the faculty of reason, or, perhaps, the faculty of discourse? But a full-grown horse or dog is beyond comparison a more rational, as well as a more conversable animal, than an infant of a day, or a week, or even a month old. But suppose the case were otherwise, what would it avail? the question is not, Can they reason? nor, Can they talk? but, Can they suffer?

[* ]Ch. vi. [Sensibility] par. 3.

[† ]I say nothing in this place of reward: because it is only in a few extraordinary cases that it can be applied, and because even where it is applied, it may be doubted, perhaps, whether the application of it can, properly speaking, be termed an act of legislation. See infia, § 3.

[‡ ]Ch. xv. [Cases unmeet.]

[* ]See ch. xv. [Cases unmeet] § 4.

[† ]Ch. xvi. [Proportion] par. 18, rule 7.

[‡ ]Ch. xv. [Cases unmeet] § 3. Append. tit. [Promulgation.]

[∥ ]Ch. xi. [Disposition] par. 35, &c.

[§ ]Ch. vi. [Sensibility.]

[* ]In certain countries, in which the voice of the people has a more especial controul over the hand of the legislator, nothing can exceed the dread which they are under of seeing any effectual provision made against the offences which come under the head of defamation, particularly that branch of it which may be styled the political. This dread seems to depend partly upon the apprehension they may think it prudent to entertain of a defect in point of ability or integrity on the part of the legislator, partly upon a similar apprehension of a defect in point of integrity on the part of the judge.

[† ]See ch. ix. [Consciousness.]

[‡ ]On occasions like this, the legislator should never lose sight of the well-known story of the oculist and the sot. A countryman who had hurt his eyes by drinking, went to a celebrated oculist for advice. He found him at table with a glass of wine before him. “You must leave off drinking,” said the oculist. “How so?” says the countryman; “you don’t, and yet methinks your own eyes are none of the best.”—“That’s very true friend,” replied the oculist: “but you are to know, I love my bottle better than my eyes.”

[∥ ]Ch. xviii. [Division] par. 2.

[* ]Evil of apprehension: third branch of the evil of a punishment. Ch. xv. § 4.

[† ]Derivative evils: fourth branch of the evil of a punishment. Ib.

[‡ ]I do not mean but that other motives of a less social nature might have introduced themselves, and probably, in point of fact, did introduce themselves, in the progress of the enterprise: But in point of possibility, the motive above mentioned, when accompanied with such a thread of reasoning, is sufficient, without any other, to account for all the effects above alluded to. If any others interfere, their interference, how natural soever, may be looked upon as an accidental and inessential circumstance, not necessary to the production of the effect. Sympathy, a concern for the danger they appear to be exposed to, gives birth to the wish of freeing them from it: that wish shews itself in the shape of a command: this command produces disobedience: disobedience on the one part, produces disappointment on the other: the pain of disappointment produces ill-will towards those who are the authors of it. The affections will often make this progress in less time than it would take to describe it. The sentiment of wounded pride, and other modifications of the love of reputation and the love of power, add fuel to the flame. A kind of revenge exasperates the severities of coercive policy.

[∥ ]See B. 1. tit. [Self-regarding Offences.]

[§ ]But suppose the dictates of legislation are not what they ought to be: what are then, or (what in this case comes to the same thing) what ought to be, the dictates of private ethics? Do they coincide with the dictates of legislation, or do they oppose them, or do they remain neuter? A very interesting question this, but one that belongs not to the present subject. It belongs exclusively to that of private ethics. Principles which may lead to the solution of it may be seen in a Fragment on Government, p. 150. Lond. edit. 1776: and p. 114, edit. 1823.

[* ]If we may believe M. Voltaire,a there was a time when the French ladies who thought themselves neglected by their husbands, used to petition pour être embesoignèes: the technical word which, he says, was appropriated to this purpese. These sort of law-proceedings seem not very well calculated to answer the design: accordingly we hear nothing of them now-a-days. The French ladies of the present age seem to be under no such difficulties.

[† ]A woman’s head-dress catches fire: water is at hand: a man, instead of assisting to quench the fire, looks on, and laughs at it. A drunken man, falling with his face downwards into a puddle, is in danger of suffocation: litting his head a little on one side would save him: another man sees this, and lets him lie. A quantity of gunpowder lies scattered about a room: a man is going into it with a lighted candle: another, knowing this, lets him go in without warning. Who is there that in any of these cases would think punishment misapplied?

[‡ ]The word law itself, which stands so much in need of a definition, must wait for it awhile (see § 3:) for there is no doing every thing at once. In the mean time, every reader will understand it according to the notion he has been accustomed to annex to it.

[∥ ]In most of the European languages there are two different words for distinguishing the abstract and the concrete senses of the word law: which words are so wide asunder as not even to have any etymological affinity. In Latin, for example, there is lex for the concrete sense, jus for the abstract: in Italian, legge and diritto: in French, loi and droit: in Spanish, ley and derecho: in German, gesetz and recht. The English is at present destitute of this advantage.

In the Anglo-Saxon, besides lage, and several other words, for the concrete sense, there was the word right, answering to the German recht, for the abstract; as may be seen in the compound folc-right, and in other instances. But the word right having long ago lost this sense, the modern English no longer possesses this advantage.

[* ]The word international, it must be acknowledged, is a new one; though, it is hoped, sufficiently analogous and intelligible. It is calculated to express, in a more significant way, the branch of law which goes commonly under the name of the law of nations: an appellation so uncharacteristic, that, were it not for the force of custom, it would seem rather to refer to internal jurisprudence. The chancellor D’Auguesseau has already made, I find, a similar remark: he says, that what is commonly called droit des gens, ought rather to be termed droit entre les gens.a

[† ]In the times of James I. of England, and Philip III. of Spain, certain merchants at London happened to have a claim upon Philip, which his ambassador Gondemar did not think fit to satisfy. They applied for counsel to Selden, who advised them to sue the Spanish monarch in the court of King’s Bench, and prosecute him to an outlawry. They did so: and the sheriffs of London were accordingly commanded, in the usual form, to take the body of the defendant Philip, whereever it was to be found within their bailiwick. As to the sheriffs, Philip, we may believe, was in no great fear of them: but, what answered the same purpose, he happened on his part to have demands upon some other merchants, whom, so long as the outlawry remained in force, there was no proceeding against. Gondemar paid the money.a This was internal jurisprudence: if the dispute had been betwixt Philip and James himself, it would have been international.

As to the word international, from this work, or the first of the works edited in French by Mr. Dumont, it has taken root in the language. Witness Reviews and Newspapers.

[* ]The term municipal seemed to answer the purpose very well, till it was taken by an English author of the first eminence, to signify internal law in general, in contradistinction to international law, and the imaginary law of nature. It might still be used in this sense, without scruple, in any other language.

[† ]Of what stamp are the works of Grotius, Puffendorf, and Burlamaqui? Are they political or ethical, historical or juridical, expository or censorial? Sometimes one thing, sometimes another: they seem hardly to have settled the matter with themselves. A defect this to which all books must almost unavoidably be liable, which take for their subject the pretended law of nature; an obscure phantom, which, in the imaginations of those who go in chase of it, points sometimes to manners, sometimes to laws; sometimes to what law is, sometimes to what it ought to be.b Montesquieu sets out upon the censorial plan: but long before the conclusion, as if he had forgot his first design, he throws off the censor, and puts on the antiquarian. The Marquis Beccaria’s book, the first of any account that is uniformly censorial, concludes as it sets out with penal jurisprudence.

[* ]Here ends the original work, in the state into which it was brought in November 1780. What follows is now added in January 1789.

1. The third, fourth, and fifth sections, intended, as expressed in the text, to have been added to this chapter, will not here, nor now, be given; because to give them in a manner tolerably complete and satisfactory, might require a considerable volume. This volume will form a work of itself, closing the series of works mentioned in the preface.

What follows here may serve to give a slight intimation of the nature of the task, which such a work will have to atchieve: it will at the same time furnish, not any thing like a satisfactory answer to the questions mentioned in the text, but a slight and general indication of the course to be taken for giving them such an answer.

2. What is a law? what the parts of a law? The subject of these questions, it is to be observed, is the logical, the ideal, the intellectual whole, not the physical one: the law, and not the statute. An inquiry, directed to the latter sort of object, could neither admit of difficulty nor afford instruction. In this sense, whatever is given for law by the person or persons recognised as possessing the power of making laws, is law. The Metamorphoses of Ovid, if thus given, would be law. So much as was embraced by one and the same act of authentication, so much as received the touch of the sceptre at one stroke, is one law: a whole law, and nothing more. A statute of George II. made to substitute an or instead of an and in a former statute, is a complete law; a statute containing an entire body of laws, perfect in all its parts, would not be more so. By the word law, then, as often as it occurs in the succeeding pages, is meant that ideal object, of which the part, the whole, or the multiple, or an assemblage of parts, wholes, and multiples mixed together, is exhibited by a statute; not the statute which exhibits them.

3. Every law, when complete, is either of a coercive or uncoercive nature.

A coercive law is a command.

An uncoercive, or rather a discoercive law, is the revocation in whole or in part, of a coercive law.

4. What has been termed a declaratory law, so far as it stands distinguished from either a coersive or a discoercive law, is not, properly speaking, a law. It is not the expression of an act of the will exercised at the time: it is a mere notification of the existence of a law, either of the coercive or the discoercive kind, as already subsisting: of the existence of some document expressive of some act of the will, exercised, not at the time, but at some former period. If it does any thing more than give information of this fact, viz. of the prior existence of a law of either the coercive or the discoercive kind, it ceases pro tanto to be what is meant by a declaratory law, and assuming either the coercive or the discoercive quality.

5. Every coercive law creates an offence; that is, converts an act of some sort or other into an offence. It is only by so doing that it can impose obligation, that it can produce coercion.

6. A law confining itself to the creation of an offence, and a law commanding a punishment to be administered in case of the commission of such an offence, are two distinct laws: not parts (as they seem to have been generally accounted hitherto) of one and the same law. The acts they command are altogether different; the persons they are addressed to are altogether different. Instance, Let no man steal; and, Let the judge cause whoever is convicted of stealing to be hanged.

They might be styled, the former, a simple imperative law; the other, a punitory; but the punitory, if it commands the punishment to be inflicted, and does not merely permit it, is as truly imperative as the other: only it is punitory besides, which the other is not.

7. A law of the discoercive kind, considered in itself, can have no punitory law belonging to it: to receive the assistance and support of a punitory law, it must first receive that of a simply imperative or coercive law, and it is to this latter that the punitory law will attach itself, and not to the discoercive one. Example; discoercive law. The sheriff has power to hang all such as the judge, proceeding in due course of law, shall order him to hang. Example of a coercive law, made in support of the above discoercive one: Let no man hinder the sheriff from hanging such as the judge, proceeding in due course of law, shall order him to hang. Example of a punitory law, made in support of the above coercive one: Let the judge cause to be imprisoned whosoever attempts to hinder the sheriff from hanging one whom the judge, proceeding in due course of law, has ordered him to hang.

8. But though a simply imperative law, and the punitory law attached to it, are so far distinct laws, that the former contains nothing of the latter, and the latter, in its direct tenor, contains nothing of the former; yet by implication, and that a necessary one, the punitory does involve and include the import of the simple imperative law to which it is appended. To say to the judge, Cause to be hanged whoever in due form of law is convicted of stealing, is, though not a direct, yet as intelligible a way of intimating to men in general that they must not steal, as to say to them directly, Do not steal: and one sees, how much more likely to be efficacious.

9. It should seem, then, that wherever a simply imperative law is to have a punitory one appended to it, the former might be spared altogether: in which case, saving the exception (which naturally should seem not likely to be a frequent one) of a law capable of answering its purpose without such an appendage, there should be no occasion in the whole body of the law for any other than punitory, or, in other words, than penal, laws. And this, perhaps, would be the case, were it not for the necessity of a large quantity of matter of the expository kind, of which we come now to speak.

10. It will happen in the instance of many, probably of most, possibly of all, commands endued with the force of a public law, that, in the expression given to such a command, it shall be necessary to have recourse to terms too complex in their signification, to exhibit the requisite ideas, without the assistance of a greater or less quantity of matter of an expository nature. Such terms, like the symbols used in algebraical notation, are rather substitutes and indexes to the terms capable of themselves of exhibiting the ideas in question, than the real and immediate representatives of those ideas.

Take for instance the law, Thou shalt not steal: Such a command, were it to rest there, could never sufficiently answer the purpose of a law. A word of so vague and unexplicit a meaning can no otherwise perform this office, than by giving a general intimation of a variety of propositions, each requiring, to convey it to the apprehension, a more particular and ample assemblage of terms. Stealing, for example, (according to a definition not accurate enough for use, but sufficiently so for the present purpose) is the taking of a thing which is another’s, by one who has notitleso to do, and is conscious of his having none. Even after this exposition, supposing it a correct one, can the law be regarded as completely expressed? Certainly not. For what is meant by a man’s having atitleto take a thing? To be complete, the law must have exhibited, amongst a multitude of other things, two catalogues; the one of events to which it has given the quality of conferring title in such a case; the other of the events to which it has given the quality of taking it away. What follows? That for a man to have stolen, for a man to have had no title to what he took, either no one of the articles contained in the first of those lists must have happened in his favour, or if there has, some one of the number of those contained in the second, must have happened to his prejudice.

11. Such, then, is the nature of a general law, that while the imperative part of it, the punctum saliens as it may be termed, of this artificial body, shall not take up above two or three words, its expository appendage, without which that imperative part could not rightly perform its office, may occupy a considerable volume.

But this may equally be the case with a private order given in a family. Take for instance one from a bookseller to his foreman: Remove, from this shop to my new one, my whole stock, according to this printed catalogue. Remove, from this shop to my new one, my whole stock, is the imperative matter of this order; the catalogue referred to contains the expository appendage.

12. The same mass of expository matter may serve in common for, may appertain in common to, many commands, many masses of imperative matter. Thus, amongst other things, the catalogue of collative and ablative events, with respect to titles above spoken of (see No. 9 of this note), will belong in common to all or most of the laws constitutive of the various offences against property. Thus, in mathematical diagrams, one and the same base shall serve for a whole cluster of triangles.

13. Such expository matter, being of a complexion so different from the imperative, it would be no wonder if the connection of the former with the latter should escape the observation: which, indeed, is perhaps pretty generally the case. And so long as any mass of legislative matter presents itself, which is not itself imperative, or the contrary, or of which the connection with matter of one of those two descriptions is not apprehended, so long and so far the truth of the proposition, That every law is a command or its opposite, may remain unsuspected, or appear questionable; so long also may the incompleteness of the greater part of those masses of legislative matter, which wear the complexion of complete laws upon the face of them, also the method to be taken for rendering them really complete, remain undiscovered.

14. A circumstance, that will naturally contribute to increase the difficulty of the discovery, is the great variety of ways in which the imperation of a law may be conveyed—the great variety of forms which the imperative part of a law may indiscriminately assume: some more directly, some less directly, expressive of the imperative quality. Thou shalt not steal. Let no man steal. Whoso stealeth, shall be punished so and so. If any man steal, he shall be punished so and so. Stealing is where a man does so and so; the punishment for stealing is so and so. To judges, so and so named, and so and so constituted, belong the cognizance of such and such offences; viz. stealing; and so on. These are but part of a multitude of forms of words, in any of which the command, by which stealing is prohibited, might equally be couched: and it is manifest to what a degree, in some of them, the imperative quality is clouded and concealed from ordinary apprehension.

15. After this explanation, a general proposition or two, that may be laid down, may help to afford some little insight into the structure and contents of a complete body of laws.—So many different sorts of offences created, so many different laws of the coercive kind: so many exceptions taken out of the descriptions of those offences, so many laws of the discoercive kind.

To class offences, as hath been attempted to be done in the preceding chapter, is therefore to class laws: to exhibit a complete catalogue of all the offences created by law, including the whole mass of expository matter necessary for fixing and exhibiting the import of the terms contained in the several laws, by which those offences are respectively created, would be to exhibit a complete collection of the laws in force: in a word, a complete body of law, a pannomion, if so it might be termed.

16. From the obscurity in which the limits of a law, and the distinction betwixt a law of the civil or simply imperative kind and a punitory law, are naturally involved, results the obscurity of the limits betwixt a civil and a penal code, betwixt the civil branch of the law and the penal.

The question, What parts of the total mass of legislative matter belong to the civil branch, and what to the penal? supposes that divers political states, or at least that some one such state, are to be found, having as well a civil code as a penal code, each of them complete in its kind, and marked out by certain limits. But no one such state has ever yet existed.

To put a question to which a true answer can be given, we must substitute to the foregoing question some such one as that which follows:

Suppose two masses of legislative matter to be drawn up at this time of day, the one under the name of a civil code, the other of a penal code, each meant to be complete in its kind: in what general way is it natural to suppose that the different sorts of matter, as above distinguished, would be distributed between them?

To this question the following answer seems likely to come as near as any other to the truth.

The civil code would not consist of a collection of civil laws each complete in itself, as well as clear of all penal ones.

Neither would the penal code (since we have seen that it could not) consist of a collection of punitive laws, each not only complete in itself, but clear of all civil ones. But

17. The civil code would consist chiefly of mere masses of expository matter. The imperative matter, to which those masses of expository matter respectively appertained, would be found—not in that same code—not in the civil code—nor in a pure state, free from all admixture of punitory laws; but in the penal code—in a state of combination—involved, in manner as above explained, in so may correspondent punitory laws.

18. The penal code then would consist principally of punitive laws, involving the imperative matter of the whole number of civil laws: along with which would probably also be found various masses of expository matter, appertaining, not to the civil, but to the punitory laws. The body of penal law, enacted by the Empress-Queen Maria Theresa, agrees pretty well with this account.

19. The mass of legislative matter published in French as well as German, under the auspices of Frederic II. of Prussia, by the name of Code Frederic, but never established with force of law,a appears, for example, to be almost wholly composed of masses of expository matter, the relation of which to any imperative matter appears to have been but very imperfectly apprehended.

20. In that enormous mass of confusion and inconsistency, the ancient Roman, or, as it is termed by way of eminence, the civil law, the imperative matter, and even all traces of the imperative character, seem at last to have been smothered in the expository. Esto had been the language of primæval simplicity: esto had been the language of the twelve tables. By the time of Justinian (so thick was the darkness raised by clouds of commentators), the penal law had been crammed into an odd corner of the civil—the whole catalogue of offences, and even of crimes, lay buried under a heap of obligations—will was hid in opinion—and the original esto had transformed itself into videtur, in the mouths even of the most despotic sovereigns.

21. Among the barbarous nations that grew up out of the ruins of the Roman empire, law, emerging from under the mountain of expository rubbish, reassumed for a while the language of command: and then she had simplicity at least, if nothing else, to recommend her.

22. Besides the civil and the penal, every complete body of law must contain a third branch, the constitutional.

The constitutional branch is chiefly employed in conferring, on particular classes of persons, powers, to be exercised for the good of the whole society, or of considerable parts of it, and prescribing duties to the persons invested with those powers.

The powers are principally constituted, in the first instance, by discoercive or permissive laws, operating as exceptions to certain laws of the coercive or imperative kind. Instance: A tax-gatherer, as such, may, on such and such an occasion, take such and such things without any othertitle.

The duties are created by imperative laws, addressed to the persons on whom the powers are conferred. Instance: On such and such an occasion, such and such a tax-gatherer shall take such and such things. Such and such a judge shall, in such and such a case, cause persons so and so offending to be hanged.

The parts which perform the function of indicating who the individuals are, who in every case shall be considered as belonging to those classes, have neither a permissive complexion, nor an imperative.

They are so many masses of expository matter, appertaining in common to all laws, into the texture of which, the names of those classes of persons have occasion to be inserted. Instance; imperative matter:—Let the judge cause whoever, in due course of law, is convicted of stealing, to be hanged. Nature of the expository matter:—Who is the person meant by the word judge? He who has been invested with that office in such a manner, and in respect of whom no event has happened, of the number of those to which the effect is given, of reducing him to the condition of one divested of that office.

23. Thus it is, that one and the same law, one and the same command, will have its matter divided, not only between two great codes, or main branches of the whole body of the laws, the civil and the penal; but amongst three such branches, the civil, the penal, and the constitutional.

24. In countries where a great part of the law exists in no other shape, than that of what in England is called common law, but might be more expressively termed judiciary, there must be a great multitude of laws, the import of which cannot be sufficiently made out for practice, without referring to this common law, for more or less of the expository matter belonging to them. Thus, in England, the exposition of the word title, that basis of the whole fabric of the laws of property, is no where else to be found. And, as uncertainty is the very essence of every particle of law so denominated (for the instant it is clothed in a certain authoritative form of words it changes its nature, and passes over to the other denomination), hence it is that a great part of the laws in being in such countries remains uncertain and incomplete. What are those countries? To this hour, every one on the surface of the globe.

25. Had the science of architecture no fixed nomenclature belonging to it—were there no settled names for distinguishing the different sorts of buildings, nor the different parts of the same building from each other—what would it be? It would be what the science of legislation, considered with respect to its form, remains at present.

Were there no architects who could distinguish a dwelling-house from a barn, or a side wall from a ceiling, what would architects be? They would be what all legislators are at present.

26. From this very slight and imperfect sketch may be collected, not an answer to the questions in the text, but an intimation, and that but an imperfect one, of the course to be taken for giving such an answer; and, at any rate, some idea of the difficulty, as well as of the necessity, of the task.

If it were thought necessary to recur to experience for proofs of this difficulty, and this necessity, they need not be long wanting.

Take, for instance, so many well-meant endeavours on the part of popular bodies, and so many well-meant recommendations in ingenious books, to restrain supreme representative assemblies from making laws in such and such cases, or to such and such an effect. Such laws, to answer the intended purpose, require a perfect mastery in the science of law, considered in respect of its form—in the sort of anatomy spoken of in the preface to this work: but a perfect, or even a moderate insight into that science, would prevent their being couched in those loose and inadequate terms, in which they may be observed so frequently to be conceived; as a perfect acquaintance with the dictates of utility on that head would, in many, if not in most, of those instances, discounsel the attempt. Keep to the letter, and in attempting to prevent the making of bad laws, you will find them prohibiting the making of the most necessary laws, perhaps even of all laws: quit the letter, and they express no more than if each man were to say, Your laws shall become ipso facto void, as often as they contain any thing which is not to my mind.

Of such unhappy attempts, examples may be met with in the legislation of many nations: but in none more frequently than in that newly-created nation, one of the most enlightened, if not the most enlightened, at this day on the globe.

27. Take for instance, the Declaration of Rights, enacted by the state of North-Carolina, in convention, in or about the month of September 1788, and said to be copied, with a small exception, from one in like manner enacted by the state of Virginia.a

The following, to go no farther, is the first and fundamental article:—

“That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.”

Not to dwell on the oversight of confining to posterity the benefit of the rights thus declared, what follows? That—as against those whom the protection, thus meant to be afforded, includes—every law, or other order, divesting a man of the enjoyment of life or liberty, is void.

Therefore this is the case, amongst others, with every coercive law.

Therefore, as against the persons thus protected, every order, for example, to pay money on the score of taxation, or of debt from individual to individual, or otherwise, is void: for the effect of it, if complied with, is “to deprive and divest him,” pro tanto, of the enjoyment of liberty, viz. the liberty of paying or not paying as he thinks proper: not to mention the species opposed to imprisonment, in the event of such a mode of coercion being resorted to: likewise of property, which is itself a “means of acquiring, possessing, and protecting property, and of pursuing and obtaining happiness and safety.”

Therefore also, as against such persons, every order to attack an armed enemy, in time of war, is also void: for, the necessary effect of such an order is, “to deprive some of them of the enjoyment of life.”

The above-mentioned consequences may suffice for examples, amongst an endless train of similar ones.b

Leaning on his elbow, in an attitude of profound and solemn meditation, “What a multitude of things there are,” exclaimed the dancing-master Marcel, “in a minuet!”—May we now add?—and in a law!

[* ]Edited from the French of Dumont, and the original MSS. and printed works of Bentham.

[* ]There are, however, honourable exceptions.

[† ]Leges decet essc jubentes non disputantes.—Bac. de augm. scient.

The maxim of Bacon is perfectly just, when applied to the law itself,—which ought only to present a pure and simple expression of the will of the legislator.

[(1) ]—[Contents.]—Constructed is this Table, in part from actual observation of the contents of the several Chapters and Sections; partly from the anticipation of them. It cannot be considered as completed, till expression has been given to the whole of the Code in the very words of it, or, as the phrase is—in terminis.

Note here, that the so-called unwritten law has no assignable words belonging to it. This is the characteristic,—the distinguishing property,—the differential character—of it, by which this fictitious stands distinguished from the only really existing sort of law, namely, the so called written law—the statute law.

By the matter of this Table, the whole field of penal legislation has been endeavoured, and is supposed, to be covered. To a student, an instructive sort of exercise would be—the finding, or endeavouring to find a species of maleficent act which is not comprised in it. This supposition of all comprehensiveness, of course, falls more or less short of being correct. But, in this line, as in every other line of action, which has for its object or end in view the maximum of happiness, the impossibility of attaining the summit, affords no reason against making continual approaches to it, on each occasion, as near as possible.

Condemners of Codification! think of this, and exhibit apposite reasons against it, if you can.

Offences affecting Condition in Life; Offences affecting the Revenue; Offences affecting Trade. Of the aggregate of the several portions of matter belonging to these several heads, will be composed the principal portion of the aggregate of the matter of the assemblage, or say collection of Particular Codes: herein may be seen the relation between these same Particular Codes on the one part, and this General Code, on the other part.

The several acts, which, in the several enactments of which the Penal Code is composed, are taken for the subject matter of its prohibition, may be considered as so many acts of co-delinquency with relation to the so widely comprehensive genera of offence, designated by the herein-above-mentioned denominations; of co-delinquency, namely, by contributing, in some way or other, to the production of an evil effect of the sort of those which, by the denomination in question, are designated.

Corresponding enactments, suppose—“Do not anything from which detriment may ensue to the Revenue;” “Do not anything from which detriment may ensue to the Trade of the country.”

To help conception, take the observation following. In a commonwealth, erroneous enactment, if performed in relation to either of these topics, may be considered as an act of delinquency on the part of the Legislature: of delinquency, for remedy to which, the members therein concurring, will, collectively or severally, be liable to suffer dislocation, at the hands and by the votes of the members of the Constitutive authority.

[(2.) ]—[Axioms.]—Correspondent are these to the several acts of maleficence, to which, in consideration of such their quality, it is thought fit to assign the character of acts of delinquency and the denomination of offences, with correspondent treatment, for the purpose of remedy, as per Chap. XVI. These axioms are enunciative of the sufferance, or say pain respectively produced by those same offences; and of the preponderancy of this pain, over any pleasure, producible by those same acts to the agent.

[(3) ]—[Exemptions.]—So many distinguishable sorts of burthens as are imposed—whatsoever be the purpose—whether satisfaction or punishment—so many are the correspondent exemptions possible.

[(4) ]—[Part II.]—In this Part is contained the remainder of the Work. It is composed of what relates to the several offences, in so many chapters: in each chapter, so much being given of the general matter as is applicable to the offence which is the subject matter of that same chapter. Under the heads constituted by the denominations of the several genera of supposed maleficent acts, which, on account of their being so, are spoken of as acts of delinquency, and constituted offences,—the several arrangements, and enactments thereto belonging, are grounded, all of them, on considerations derived from the contemplation of the more general propositions, contained in the several chapters of Part I.; reference to which will all along be given; as also, per contra, in Part I., will reference be made to the several occasions, on which, in Part II., application is made of them respectively.

[(5) ]—[Offences severally.]—In the work will be seen a definition of each genus of offence, as designated by the name by which it is designated here; and, where the genus is divided into species, a definition of each species.

[(6.) ]—[Private.]—In the method here pursued, commencement is made with those offences the conception of which is more simple and clear; and from these it proceeds on with those of which the conception is more and more complex and obscure.

On this occasion, why (it may be asked) does no such class appear as that of self-regarding offences? especially as in the author’s former works, this class makes its appearance along with the others.

Answer.—

1. Needless, with relation to the present purpose, would have been any such additional matter. From the names of the several acts, which correspond to them in the list here given of extra-regarding offences, the names of the several self-regarding offences may, without difficulty, be inferred.

2. Burthensome would the addition have been, in proportion to the space occupied by it.

3. Discussion occupying additional space, would have been necessitated by it.

4. To the practical purpose of taking the acts in question for subject-matter of prohibition, backed by appropriate punishment—no more than a part of the whole list of extra-regarding offences, would have furnished corresponding articles to the list of self-regarding offences.

5. Of these articles scarcely would there have been any others than those affecting property, and those affecting condition in life: in the first case, prodigality; in the other case, ill-assorted marriage, and improvidently contracted engagement of servitude: and in neither case would any demand for punishment have place.

6. So much for the offences themselves, by which disorders in the body politic are produced. Now as to the corresponding remedies. In relation to maleficent acts of this class, needless is,—absurdly employed would be,—the punitive: plainly inapplicable the satisfactive: which see, Part I. Chap. XVI.

7. In the case of prodigality, the sole remedy applicable with advantage is the suppressive. Even in this case, whether with advantage or not, depends upon the system of procedure.

8. Under the existing system, the remedy would be but an exacerbation of the disease: expenditure going on, but employed in the purchase of pain at the hands of lawyers, instead of pleasure at the hands of all other sorts of dealers.

9. Under the proposed system, with little or no expense, the diarrhœa might be stopt at any time. The case of non-age excepted, if, on the part of the judicial authority, interference in any shape is in this case justifiable, it is more on account of the interest of the family connexion of the prodigal, than on the account of the prodigal himself: and, in this case, no otherwise than in so far as by ties, legal or moral, in the event of his falling into indigence, they would find themselves bound for his maintenance.

10. Common to all self-regarding offences, is this highly material circumstance and quality:—by no offence of this description is evil of the second order,—danger or alarm in any shape to other persons at large—ever produced. Nor yet, in the opinion of him who, generally speaking, is the best qualified judge, any preponderant and nett quantity of evil, even of the first order. At the same time, from evil, done to the offender himself, though by himself, results commonly (it must be acknowledged) a derivative evil to other individuals: to wit, to those connected with him by the tie of interest—of the one sort or the other—self-regarding or sympathetic, or both. On this ground, therefore,—principally, if not exclusively,—will be found to stand, any reason, by which the legislature can be called upon to make, or be justified in making, any arrangements, the effect of which would be—to produce in a Table of this sort, a demand for the insertion of any such class as that composed of self-regarding private offences.

[(7.) ]—[Wrongful.]—Exceptions excepted, in the case of every one of the several sorts of acts ranked in this Table under the denomination of Offences—to the name of the act this word wrongful (it will be observed) stands prefixed. The case is—that, on the present occasion, an addition to this effect to the denomination, and thereby a correspondent limitation applied to the idea, could not (it will be seen) be refused. The reason is—that, of all these several instances, no one is there in which, to the act in question, as designated by its name in the Table, it may not happen to be made lawful: made lawful—that is to say, on the consideration that, in the instance in question, whatever be the evil produced by the maleficent act, it is balanced or outweighed by some equivalent, or more than equivalent, good: made lawful—namely, by the establishment of some power or right—private, semi-public or public, as the case may be.

As to the exceptions,—these are constituted by the several denominations, in the signification of which an assertion of the unlawfulness of the act in question is involved. Examples are: 1. Usurpation. 2. Seduction. 3. Rape. 4. Theft. 5. Embezzlement. 6. Peculation. 7. Robbery. 8. Rioting. 9. Rebellion. 10. Treason. 11. Contrabandism. 12. Mistrading. 13. International maleficence.

[(8) ]—[Simple.]—In the cases, in which, from the magnitude of the extent over which the suffering spreads, the offence receives the quality and denomination of semi-public,—it receives thereby a complexion quite different from the more ordinary and natural one: and, of the appropriate remedy, the nature becomes correspondingly different. In the case of an offence levelled at the person of an assignable individual, the motive is most commonly antipathy, or say ill-will: in the case in which the persons affected are so numerous that the offence takes a semi-public character, seldom has ill-will anything to do with it; the motive is a self-regarding one:—namely, the love of wealth, or say pecuniary desire. As to the means, by the conjunction of which with the motive, the temptation is produced,—where antipathy is the motive, persons of all classes stand alike exposed to it: in the case where pecuniary desire is the motive, it is by the matter of wealth in considerable quantities that the means—the instrument by which the evil effect is produced—is most commonly afforded. Of the thus widespreading annoyance, the most commonly exemplified efficient cause is—either some manufacturing course of operations carried on in a certain edifice or spot of ground, or some particular quality in the situation of the edifice or spot of ground itself.

[(9) ]—[Morbification, &c.]—These might be considered as constituting nothing more than so many aggravations of the one offence first mentioned,—namely, simple corporal vexation: in which case they would fall under the head of that offence, constituting so many aggravations of it, instead of constituting, as here, so many genera of offences, and as such, occupying so many places in the list of those same genera.

[(10) ]—[Inventorship.]—In the case of offences affecting property in general, the subject matters of the acts prohibited are individual things: in the case of offences affecting reputation of, and exclusive title to, inventorship, they are species of things.

[(11) ]—[Conditions in life.]—These are—1. Domestic—2. Profit-seeking—3. Power-conferring—4. Rank or Dignity-conferring.

Domestic Conditions are—1. Husbandship—2. Wifeship—3. Fathership—4. Mothership—5. Sonship—6. Daughtership—7. Guardianship—8. Wardship—9. Relationship.

[(12) ]—[Desertion.]—Correspondent wrong will commonly in this case have been done to child, ward, servant, wife,—by interception of the services they would otherwise have respectively received from their respective correlatives.

[(13) ]—[Person-stealing.]—Species are—1. Child (from father) stealing—2. Ward-stealing—3. Wife-stealing—4. Stealing for enslavement.—See Chap. I. Section 15.

[(14) ]—[Calamity.]—Where it is to persons in small numbers, and those assignable, or to their property, or to both, that the mischief thus applies, it is styled a casualty; where to persons in large numbers, assignable or unassignable, it is styled a calamity.—Calamities, or their efficient causes, are—1. Collapsion—2. Inundation—3. Draught—4. Storm—5. Shipwreck—6. Explosion—7. Earthquake—8. Combustion—9. Unwholesome air—10. Pestilence—11. Contagion—12, Famine—13. Destruction by insects or wild beasts.—See, in Chap. VII, Section 11, Rioting. See also Constitutional Code, Book II. Ch. xi. Ministers severally, Section 5, Preventive Service Minister, and Section 10, Health Minister.

[* ]Edited from the French of Dumont, and the original MSS. and printed works of Bentham.

r. s.

[† ]See Introduction to Morals and Legislation, chap. xviii. [Division of Offences] Simple Corporal Injuries, in order to distinguish them from Irreparable Corporal Injuries, and from Mental Injuries, &c.

[a ]Without lawful cause. Refer to the general head, “Grounds of Justification.”

[b ]Caused. It is of no consequence, neither in what manner, nor by what means, the mischief has been done: whether the person have been beaten or wounded; whether air, water, light, or fire, have been employed; whether some hideous and disagreeable object have been presented to the sight, to the touch, or to the tase; whether, by force or otherwise, a mischievous drug have been administered; whether a dog, or some other animal, have been employed to gratify the offender’s malice, or an innocent person; whether it have been done by the sufferer himself, as by inducing him to walk into a snare or into a ditch; whether the necessary means of relief have been removed from his reach, the bread from the hungry man, the medicine from the sick: these means, and all others which have mischief for their object, are included in the definition of a simple personal injury.

[c ]Contributed. Refer to the general title of “Co-delinquents.”

[d ]Light or weighty. Every thing which takes place against the will of the party injured, even the slightest touch: hence the mischief of this offence may vary, from the slightest uneasiness to the most painful tortures.

[e ]Ulterior. If any ulterior mischief happen, the offence no longer belongs to this head; it becomes an irreparable corporal injury, or an imprisonment, &c.

[f ]Negative. Refer to the general head of “Negative offences.”

[g ]Abstains from helping him. Every man is bound to assist those who have need of assistance, if he can do it without exposing himself to sensible inconvenience. This obligation is stronger, in proportion as the danger is the greater for the one, and the trouble of preserving him the less for the other. Such would be the case of a man sleeping near the fire, and an individual seeing the clothes of the first catch fire, and doing nothing towards extinguishing them: the crime would be greater if he refrained from acting not simply from idleness, but from malice or some pecuniary interest.

[‡ ]It is impossible to give all these explanations at once: that every difficulty might be removed, it would be necessary to publish the whole Penal Code. The reader is requested to observe, that this example is intended principally to show the use of a commentary of reasons.

[* ]This would only refer to those persons who have the chief care of the minor, being entrusted by the parent or guardian. It should not be extended to persons who are only charged with certain details of his instruction, and who have only an occasional charge of him, as a writing or dancing-master, unless by a clause having this special object. See further, upon this subject, the laws respecting masters and servants, day-labourers, apprentices, and slaves.

[† ]Other aggravations will be found under the different titles, Theft, Destruction, Personal Insults, Lascivious Attacks, Offences against Justice, Offences against the Law of Nations, Offences against Government, Offences against Religion.

[§ ]Under the Gentoo and Mahometan religions, the interests of the rest of the animal creation seem to have met with some attention. Why have they not, universally, with as much as those of human creatures, allowance made for the difference in point of sensibility? Because the laws that are, have been the work of mutual fear; a sentiment which the less rational animals have not had the same means as man has of turning to account. Why ought they not? No reason can be given. If the being eaten were all, there is very good reason why we should be suffered to eat such of them as we like to eat: we are the better for it, and they are never the worse. They have none of those long-protracted anticipations of future misery which we have. The death they suffer in our hands commonly is, and always may be, a speedier, and by that means a less painful one, than that which would await them in the inevitable course of nature. If the being killed were all, there is very good reason why we should be suffered to kill such as molest us: we should be the worse for their living, and they are never the worse of being dead. But is there any reason why we should be suffered to torment them? Not any that I can see. Are there any why we should not be suffered to torment them? Yes, several. See B. I. tit. [Cruelty to Animals.] The day has been, I grieve to say in many places it is not yet past, in which the greater part of the species, under the denomination of slaves, have been treated by the law exactly upon the same footing, as, in England for example, the inferior races of animals are still. The day may come, when the rest of the animal creation may acquire those rights which never could have been withholden from them but by the hand of tyranny. The French have already discovered that the blackness of the skin is no reason why a human being should be abandoned without redress to the caprice of a tormentor.a It may come one day to be recognised, that the number of the legs, the villosity of the skin, or the termination of the os sacrum, are reasons equally insufficient for abandoning a sensitive being to the same fate? What else is it that should trace the insuperable line? Is it the faculty of reason, or, perhaps, the faculty of discourse? But a full-grown horse or dog is beyond comparison a more rational, as well as a more conversable animal, than an infant of a day, or a week, or even a month old. But suppose the case were otherwise, what would it avail? the question is not, Can they reason? nor, Can they talk? but, Can they suffer?

[* ]If we may believe M. Voltaire,a there was a time when the French ladies who thought themselves neglected by their husbands, used to petition pour être embesoignèes: the technical word which, he says, was appropriated to this purpese. These sort of law-proceedings seem not very well calculated to answer the design: accordingly we hear nothing of them now-a-days. The French ladies of the present age seem to be under no such difficulties.

[* ]The word international, it must be acknowledged, is a new one; though, it is hoped, sufficiently analogous and intelligible. It is calculated to express, in a more significant way, the branch of law which goes commonly under the name of the law of nations: an appellation so uncharacteristic, that, were it not for the force of custom, it would seem rather to refer to internal jurisprudence. The chancellor D’Auguesseau has already made, I find, a similar remark: he says, that what is commonly called droit des gens, ought rather to be termed droit entre les gens.a

[† ]In the times of James I. of England, and Philip III. of Spain, certain merchants at London happened to have a claim upon Philip, which his ambassador Gondemar did not think fit to satisfy. They applied for counsel to Selden, who advised them to sue the Spanish monarch in the court of King’s Bench, and prosecute him to an outlawry. They did so: and the sheriffs of London were accordingly commanded, in the usual form, to take the body of the defendant Philip, whereever it was to be found within their bailiwick. As to the sheriffs, Philip, we may believe, was in no great fear of them: but, what answered the same purpose, he happened on his part to have demands upon some other merchants, whom, so long as the outlawry remained in force, there was no proceeding against. Gondemar paid the money.a This was internal jurisprudence: if the dispute had been betwixt Philip and James himself, it would have been international.

As to the word international, from this work, or the first of the works edited in French by Mr. Dumont, it has taken root in the language. Witness Reviews and Newspapers.

[† ]Of what stamp are the works of Grotius, Puffendorf, and Burlamaqui? Are they political or ethical, historical or juridical, expository or censorial? Sometimes one thing, sometimes another: they seem hardly to have settled the matter with themselves. A defect this to which all books must almost unavoidably be liable, which take for their subject the pretended law of nature; an obscure phantom, which, in the imaginations of those who go in chase of it, points sometimes to manners, sometimes to laws; sometimes to what law is, sometimes to what it ought to be.b Montesquieu sets out upon the censorial plan: but long before the conclusion, as if he had forgot his first design, he throws off the censor, and puts on the antiquarian. The Marquis Beccaria’s book, the first of any account that is uniformly censorial, concludes as it sets out with penal jurisprudence.

[* ]Here ends the original work, in the state into which it was brought in November 1780. What follows is now added in January 1789.

1. The third, fourth, and fifth sections, intended, as expressed in the text, to have been added to this chapter, will not here, nor now, be given; because to give them in a manner tolerably complete and satisfactory, might require a considerable volume. This volume will form a work of itself, closing the series of works mentioned in the preface.

What follows here may serve to give a slight intimation of the nature of the task, which such a work will have to atchieve: it will at the same time furnish, not any thing like a satisfactory answer to the questions mentioned in the text, but a slight and general indication of the course to be taken for giving them such an answer.

2. What is a law? what the parts of a law? The subject of these questions, it is to be observed, is the logical, the ideal, the intellectual whole, not the physical one: the law, and not the statute. An inquiry, directed to the latter sort of object, could neither admit of difficulty nor afford instruction. In this sense, whatever is given for law by the person or persons recognised as possessing the power of making laws, is law. The Metamorphoses of Ovid, if thus given, would be law. So much as was embraced by one and the same act of authentication, so much as received the touch of the sceptre at one stroke, is one law: a whole law, and nothing more. A statute of George II. made to substitute an or instead of an and in a former statute, is a complete law; a statute containing an entire body of laws, perfect in all its parts, would not be more so. By the word law, then, as often as it occurs in the succeeding pages, is meant that ideal object, of which the part, the whole, or the multiple, or an assemblage of parts, wholes, and multiples mixed together, is exhibited by a statute; not the statute which exhibits them.

3. Every law, when complete, is either of a coercive or uncoercive nature.

A coercive law is a command.

An uncoercive, or rather a discoercive law, is the revocation in whole or in part, of a coercive law.

4. What has been termed a declaratory law, so far as it stands distinguished from either a coersive or a discoercive law, is not, properly speaking, a law. It is not the expression of an act of the will exercised at the time: it is a mere notification of the existence of a law, either of the coercive or the discoercive kind, as already subsisting: of the existence of some document expressive of some act of the will, exercised, not at the time, but at some former period. If it does any thing more than give information of this fact, viz. of the prior existence of a law of either the coercive or the discoercive kind, it ceases pro tanto to be what is meant by a declaratory law, and assuming either the coercive or the discoercive quality.

5. Every coercive law creates an offence; that is, converts an act of some sort or other into an offence. It is only by so doing that it can impose obligation, that it can produce coercion.

6. A law confining itself to the creation of an offence, and a law commanding a punishment to be administered in case of the commission of such an offence, are two distinct laws: not parts (as they seem to have been generally accounted hitherto) of one and the same law. The acts they command are altogether different; the persons they are addressed to are altogether different. Instance, Let no man steal; and, Let the judge cause whoever is convicted of stealing to be hanged.

They might be styled, the former, a simple imperative law; the other, a punitory; but the punitory, if it commands the punishment to be inflicted, and does not merely permit it, is as truly imperative as the other: only it is punitory besides, which the other is not.

7. A law of the discoercive kind, considered in itself, can have no punitory law belonging to it: to receive the assistance and support of a punitory law, it must first receive that of a simply imperative or coercive law, and it is to this latter that the punitory law will attach itself, and not to the discoercive one. Example; discoercive law. The sheriff has power to hang all such as the judge, proceeding in due course of law, shall order him to hang. Example of a coercive law, made in support of the above discoercive one: Let no man hinder the sheriff from hanging such as the judge, proceeding in due course of law, shall order him to hang. Example of a punitory law, made in support of the above coercive one: Let the judge cause to be imprisoned whosoever attempts to hinder the sheriff from hanging one whom the judge, proceeding in due course of law, has ordered him to hang.

8. But though a simply imperative law, and the punitory law attached to it, are so far distinct laws, that the former contains nothing of the latter, and the latter, in its direct tenor, contains nothing of the former; yet by implication, and that a necessary one, the punitory does involve and include the import of the simple imperative law to which it is appended. To say to the judge, Cause to be hanged whoever in due form of law is convicted of stealing, is, though not a direct, yet as intelligible a way of intimating to men in general that they must not steal, as to say to them directly, Do not steal: and one sees, how much more likely to be efficacious.

9. It should seem, then, that wherever a simply imperative law is to have a punitory one appended to it, the former might be spared altogether: in which case, saving the exception (which naturally should seem not likely to be a frequent one) of a law capable of answering its purpose without such an appendage, there should be no occasion in the whole body of the law for any other than punitory, or, in other words, than penal, laws. And this, perhaps, would be the case, were it not for the necessity of a large quantity of matter of the expository kind, of which we come now to speak.

10. It will happen in the instance of many, probably of most, possibly of all, commands endued with the force of a public law, that, in the expression given to such a command, it shall be necessary to have recourse to terms too complex in their signification, to exhibit the requisite ideas, without the assistance of a greater or less quantity of matter of an expository nature. Such terms, like the symbols used in algebraical notation, are rather substitutes and indexes to the terms capable of themselves of exhibiting the ideas in question, than the real and immediate representatives of those ideas.

Take for instance the law, Thou shalt not steal: Such a command, were it to rest there, could never sufficiently answer the purpose of a law. A word of so vague and unexplicit a meaning can no otherwise perform this office, than by giving a general intimation of a variety of propositions, each requiring, to convey it to the apprehension, a more particular and ample assemblage of terms. Stealing, for example, (according to a definition not accurate enough for use, but sufficiently so for the present purpose) is the taking of a thing which is another’s, by one who has notitleso to do, and is conscious of his having none. Even after this exposition, supposing it a correct one, can the law be regarded as completely expressed? Certainly not. For what is meant by a man’s having atitleto take a thing? To be complete, the law must have exhibited, amongst a multitude of other things, two catalogues; the one of events to which it has given the quality of conferring title in such a case; the other of the events to which it has given the quality of taking it away. What follows? That for a man to have stolen, for a man to have had no title to what he took, either no one of the articles contained in the first of those lists must have happened in his favour, or if there has, some one of the number of those contained in the second, must have happened to his prejudice.

11. Such, then, is the nature of a general law, that while the imperative part of it, the punctum saliens as it may be termed, of this artificial body, shall not take up above two or three words, its expository appendage, without which that imperative part could not rightly perform its office, may occupy a considerable volume.

But this may equally be the case with a private order given in a family. Take for instance one from a bookseller to his foreman: Remove, from this shop to my new one, my whole stock, according to this printed catalogue. Remove, from this shop to my new one, my whole stock, is the imperative matter of this order; the catalogue referred to contains the expository appendage.

12. The same mass of expository matter may serve in common for, may appertain in common to, many commands, many masses of imperative matter. Thus, amongst other things, the catalogue of collative and ablative events, with respect to titles above spoken of (see No. 9 of this note), will belong in common to all or most of the laws constitutive of the various offences against property. Thus, in mathematical diagrams, one and the same base shall serve for a whole cluster of triangles.

13. Such expository matter, being of a complexion so different from the imperative, it would be no wonder if the connection of the former with the latter should escape the observation: which, indeed, is perhaps pretty generally the case. And so long as any mass of legislative matter presents itself, which is not itself imperative, or the contrary, or of which the connection with matter of one of those two descriptions is not apprehended, so long and so far the truth of the proposition, That every law is a command or its opposite, may remain unsuspected, or appear questionable; so long also may the incompleteness of the greater part of those masses of legislative matter, which wear the complexion of complete laws upon the face of them, also the method to be taken for rendering them really complete, remain undiscovered.

14. A circumstance, that will naturally contribute to increase the difficulty of the discovery, is the great variety of ways in which the imperation of a law may be conveyed—the great variety of forms which the imperative part of a law may indiscriminately assume: some more directly, some less directly, expressive of the imperative quality. Thou shalt not steal. Let no man steal. Whoso stealeth, shall be punished so and so. If any man steal, he shall be punished so and so. Stealing is where a man does so and so; the punishment for stealing is so and so. To judges, so and so named, and so and so constituted, belong the cognizance of such and such offences; viz. stealing; and so on. These are but part of a multitude of forms of words, in any of which the command, by which stealing is prohibited, might equally be couched: and it is manifest to what a degree, in some of them, the imperative quality is clouded and concealed from ordinary apprehension.

15. After this explanation, a general proposition or two, that may be laid down, may help to afford some little insight into the structure and contents of a complete body of laws.—So many different sorts of offences created, so many different laws of the coercive kind: so many exceptions taken out of the descriptions of those offences, so many laws of the discoercive kind.

To class offences, as hath been attempted to be done in the preceding chapter, is therefore to class laws: to exhibit a complete catalogue of all the offences created by law, including the whole mass of expository matter necessary for fixing and exhibiting the import of the terms contained in the several laws, by which those offences are respectively created, would be to exhibit a complete collection of the laws in force: in a word, a complete body of law, a pannomion, if so it might be termed.

16. From the obscurity in which the limits of a law, and the distinction betwixt a law of the civil or simply imperative kind and a punitory law, are naturally involved, results the obscurity of the limits betwixt a civil and a penal code, betwixt the civil branch of the law and the penal.

The question, What parts of the total mass of legislative matter belong to the civil branch, and what to the penal? supposes that divers political states, or at least that some one such state, are to be found, having as well a civil code as a penal code, each of them complete in its kind, and marked out by certain limits. But no one such state has ever yet existed.

To put a question to which a true answer can be given, we must substitute to the foregoing question some such one as that which follows:

Suppose two masses of legislative matter to be drawn up at this time of day, the one under the name of a civil code, the other of a penal code, each meant to be complete in its kind: in what general way is it natural to suppose that the different sorts of matter, as above distinguished, would be distributed between them?

To this question the following answer seems likely to come as near as any other to the truth.

The civil code would not consist of a collection of civil laws each complete in itself, as well as clear of all penal ones.

Neither would the penal code (since we have seen that it could not) consist of a collection of punitive laws, each not only complete in itself, but clear of all civil ones. But

17. The civil code would consist chiefly of mere masses of expository matter. The imperative matter, to which those masses of expository matter respectively appertained, would be found—not in that same code—not in the civil code—nor in a pure state, free from all admixture of punitory laws; but in the penal code—in a state of combination—involved, in manner as above explained, in so may correspondent punitory laws.

18. The penal code then would consist principally of punitive laws, involving the imperative matter of the whole number of civil laws: along with which would probably also be found various masses of expository matter, appertaining, not to the civil, but to the punitory laws. The body of penal law, enacted by the Empress-Queen Maria Theresa, agrees pretty well with this account.

19. The mass of legislative matter published in French as well as German, under the auspices of Frederic II. of Prussia, by the name of Code Frederic, but never established with force of law,a appears, for example, to be almost wholly composed of masses of expository matter, the relation of which to any imperative matter appears to have been but very imperfectly apprehended.

20. In that enormous mass of confusion and inconsistency, the ancient Roman, or, as it is termed by way of eminence, the civil law, the imperative matter, and even all traces of the imperative character, seem at last to have been smothered in the expository. Esto had been the language of primæval simplicity: esto had been the language of the twelve tables. By the time of Justinian (so thick was the darkness raised by clouds of commentators), the penal law had been crammed into an odd corner of the civil—the whole catalogue of offences, and even of crimes, lay buried under a heap of obligations—will was hid in opinion—and the original esto had transformed itself into videtur, in the mouths even of the most despotic sovereigns.

21. Among the barbarous nations that grew up out of the ruins of the Roman empire, law, emerging from under the mountain of expository rubbish, reassumed for a while the language of command: and then she had simplicity at least, if nothing else, to recommend her.

22. Besides the civil and the penal, every complete body of law must contain a third branch, the constitutional.

The constitutional branch is chiefly employed in conferring, on particular classes of persons, powers, to be exercised for the good of the whole society, or of considerable parts of it, and prescribing duties to the persons invested with those powers.

The powers are principally constituted, in the first instance, by discoercive or permissive laws, operating as exceptions to certain laws of the coercive or imperative kind. Instance: A tax-gatherer, as such, may, on such and such an occasion, take such and such things without any othertitle.

The duties are created by imperative laws, addressed to the persons on whom the powers are conferred. Instance: On such and such an occasion, such and such a tax-gatherer shall take such and such things. Such and such a judge shall, in such and such a case, cause persons so and so offending to be hanged.

The parts which perform the function of indicating who the individuals are, who in every case shall be considered as belonging to those classes, have neither a permissive complexion, nor an imperative.

They are so many masses of expository matter, appertaining in common to all laws, into the texture of which, the names of those classes of persons have occasion to be inserted. Instance; imperative matter:—Let the judge cause whoever, in due course of law, is convicted of stealing, to be hanged. Nature of the expository matter:—Who is the person meant by the word judge? He who has been invested with that office in such a manner, and in respect of whom no event has happened, of the number of those to which the effect is given, of reducing him to the condition of one divested of that office.

23. Thus it is, that one and the same law, one and the same command, will have its matter divided, not only between two great codes, or main branches of the whole body of the laws, the civil and the penal; but amongst three such branches, the civil, the penal, and the constitutional.

24. In countries where a great part of the law exists in no other shape, than that of what in England is called common law, but might be more expressively termed judiciary, there must be a great multitude of laws, the import of which cannot be sufficiently made out for practice, without referring to this common law, for more or less of the expository matter belonging to them. Thus, in England, the exposition of the word title, that basis of the whole fabric of the laws of property, is no where else to be found. And, as uncertainty is the very essence of every particle of law so denominated (for the instant it is clothed in a certain authoritative form of words it changes its nature, and passes over to the other denomination), hence it is that a great part of the laws in being in such countries remains uncertain and incomplete. What are those countries? To this hour, every one on the surface of the globe.

25. Had the science of architecture no fixed nomenclature belonging to it—were there no settled names for distinguishing the different sorts of buildings, nor the different parts of the same building from each other—what would it be? It would be what the science of legislation, considered with respect to its form, remains at present.

Were there no architects who could distinguish a dwelling-house from a barn, or a side wall from a ceiling, what would architects be? They would be what all legislators are at present.

26. From this very slight and imperfect sketch may be collected, not an answer to the questions in the text, but an intimation, and that but an imperfect one, of the course to be taken for giving such an answer; and, at any rate, some idea of the difficulty, as well as of the necessity, of the task.

If it were thought necessary to recur to experience for proofs of this difficulty, and this necessity, they need not be long wanting.

Take, for instance, so many well-meant endeavours on the part of popular bodies, and so many well-meant recommendations in ingenious books, to restrain supreme representative assemblies from making laws in such and such cases, or to such and such an effect. Such laws, to answer the intended purpose, require a perfect mastery in the science of law, considered in respect of its form—in the sort of anatomy spoken of in the preface to this work: but a perfect, or even a moderate insight into that science, would prevent their being couched in those loose and inadequate terms, in which they may be observed so frequently to be conceived; as a perfect acquaintance with the dictates of utility on that head would, in many, if not in most, of those instances, discounsel the attempt. Keep to the letter, and in attempting to prevent the making of bad laws, you will find them prohibiting the making of the most necessary laws, perhaps even of all laws: quit the letter, and they express no more than if each man were to say, Your laws shall become ipso facto void, as often as they contain any thing which is not to my mind.

Of such unhappy attempts, examples may be met with in the legislation of many nations: but in none more frequently than in that newly-created nation, one of the most enlightened, if not the most enlightened, at this day on the globe.

27. Take for instance, the Declaration of Rights, enacted by the state of North-Carolina, in convention, in or about the month of September 1788, and said to be copied, with a small exception, from one in like manner enacted by the state of Virginia.a

The following, to go no farther, is the first and fundamental article:—

“That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.”

Not to dwell on the oversight of confining to posterity the benefit of the rights thus declared, what follows? That—as against those whom the protection, thus meant to be afforded, includes—every law, or other order, divesting a man of the enjoyment of life or liberty, is void.

Therefore this is the case, amongst others, with every coercive law.

Therefore, as against the persons thus protected, every order, for example, to pay money on the score of taxation, or of debt from individual to individual, or otherwise, is void: for the effect of it, if complied with, is “to deprive and divest him,” pro tanto, of the enjoyment of liberty, viz. the liberty of paying or not paying as he thinks proper: not to mention the species opposed to imprisonment, in the event of such a mode of coercion being resorted to: likewise of property, which is itself a “means of acquiring, possessing, and protecting property, and of pursuing and obtaining happiness and safety.”

Therefore also, as against such persons, every order to attack an armed enemy, in time of war, is also void: for, the necessary effect of such an order is, “to deprive some of them of the enjoyment of life.”

The above-mentioned consequences may suffice for examples, amongst an endless train of similar ones.b

Leaning on his elbow, in an attitude of profound and solemn meditation, “What a multitude of things there are,” exclaimed the dancing-master Marcel, “in a minuet!”—May we now add?—and in a law!

[a ]See Lewis XIVth’s Code Noir.

[a ]Quest, sur l’Encyclop. tom. 7, art, Impuissance.

[a ]Œuvres, tom. ii. p. 337, edit. 1773, 12mo.

[a ]Selden’s Table-Talk, tit. Law.

[b ]See ch. ii. [Principles adverse] par. 14.

[a ]Mirabeau sur la Monarchie Prussienne, tom. v. liv. 8, p. 215.

[a ]Recherches sur Les Etats Unis, 8vo. 1788, vol. i. p. 158.

[b ]The Virginian Declaration of Rights, said, in the French work above quoted, to have been enacted the 1st of June 1776, is not inserted in the publication entitled “The Constitutions of the several independent States of America, &c.” Published by order of Congress: Philadelphia printed: Reprinted for Stockdale and Walker, London, 1782: though that publication contains the form of government enacted in the same convention, between the 6th of May and the 5th of July in the same year.But in that same publication is contained a Declaration of Rights of the province of Massachusetts, dated in the years 1779 and 1780, which in its first article is a little similar: also one of the province of Pennsylvania, dated between July 15th and September 28th, in which the similarity is rather more considerable.Moreover, the famous Declaration of Independence, published by Congress July 5th, 1776, after a preambular opening, goes on in these words: “We hold these truths to be self-evident: that all men are created equal; that they are endued by the Creator with certain unalienable rights; that amongst those are life, liberty, and the pursuit of happiness.”The Virginian Declaration of Rights is that, it seems, which claims the honour of having served as a model to those of the other Provinces; and in respect of the above leading article, at least, to the above-mentioned general Declaration of Independency. See Recherches, &c. I. 197.Who can help lamenting, that so rational a cause should be rested upon reasons, so much fitter to beget objections, than to remove them?But with men who are unanimous and hearty about measures, nothing so weak but may pass in the character of a reason: nor is this the first instance in the world, where the conclusion has supported the premises, instead of the premises the conclusion.