DIVISION OF OFFENSES.
§ 4. Advantages of the present method.
LVI. A few words, for the purpose of giving a general view of the method of division here pursued, and of the advantages which it possesses, may have their use. The whole system of offences, we may observe, is branched out into five classes. In the three first, the subordinate divisions are taken from the same source; viz. from the consideration of the different points, in respect whereof the interest of an individual is exposed to suffer. By this uniformity, a considerable degree of light seems to be thrown upon the whole system; particularly upon the offences that come under the third class: objects which have never hitherto been brought into any sort of order. With regard to the fourth class, in settling the precedence between its several subordinate divisions, it seemed most natural and satisfactory to place those first, the connection whereof with the welfare of individuals seemed most obvious and immediate. The mischievous effects of those offences, which tend in an immediate way to deprive individuals of the protection provided for them against the attacks of one another, and of those which tend to bring down upon them the attacks of foreign assailants, seem alike obvious and palpable. The mischievous quality of such as tend to weaken the force that is provided to combat those attacks, but particularly the latter, though evident enough, is one link farther off in the chain of causes and effects. The ill effects of such offences as are of disservice only by diminishing the particular fund from whence that force is to be extracted, such effects, I say, though indisputable, are still more distant and out of sight. The same thing may be observed with regard to such as are mischievous only by affecting the universal fund. Offences against the sovereignty in general would not be mischievous, if offences of the several descriptions preceding were not mischievous. Nor in a temporal view are offences against religion mischievous, except in as far as, by removing, or weakening, or misapplying one of the three great incentives to virtue, and checks to vice, they tend to open the door to the several mischiefs, which it is the nature of all those other offences to produce. As to the fifth class, this, as hath already been observed, exhibits, at first view, an irregularity, which however seems to be unavoidable. But this irregularity is presently corrected, when the analysis returns back, as it does after a step or two, into the path from which the tyranny of language had forced it a while to deviate.
It was necessary that it should have two purposes in view: the one, to exhibit, upon a scale more or less minute, a systematical enumeration of the several possible modifications of delinquency, denominated or undenominated; the other, to find places in the list for such names of offences as were in current use: for the first purpose, nature was to set the law; for the other, custom. Had the nature of the things themselves been the only guide, every such difference in the manner of perpetration, and such only, should have served as a ground for a different denomination, as was attended with a difference in point of effect. This however of itself would never have been sufficient; for as on one hand the new language, which it would have been necessary to invent, would have been uncouth, and in a manner unintelligible: so on the other hand the names, which were before in current use, and which, in spite of all systems, good or bad, must have remained in current use, would have continued unexplained. To have adhered exclusively to the current language, would have been as bad on the other side; for in that case the catalogue of offences, when compared to that of the mischiefs that are capable of being produced, would have been altogether broken and uncomplete.
To reconcile these two objects, in as far as they seemed to be reconcilable, the following course has therefore been pursued. The logical whole, constituted by the sum total of possible offences, has been bisected in as many different directions as were necessary, and the process in each direction carried down to that stage at which the particular ideas thus divided found names in current use in readiness to receive them. At that period I have stopped; leaving any minuter distinctions to be enumerated in the body of the work, as so many species of the genus characterised by such or such a name. If in the course of any such process I came to a mode of conduct which, though it required to be taken notice of, and perhaps had actually been taken notice of, under all laws, in the character of an offence, had hitherto been expressed under different laws, by different circumlocutions, without ever having received any name capable of occupying the place of a substantive in a sentence, I have frequently ventured so far as to fabricate a new name for it, such an one as the idiom of the language, and the acquaintance I happened to have with it, would admit of. These names consisting in most instances, and that unavoidably, of two or three words brought together, in a language too which admits not, like the German and the Greek, of their being melted into one, can never be upon a par, in point of commodiousness, with those univocal appellatives which make part of the established stock.
In the choice of names in current use, care has been taken to avoid all such as have been grounded on local distinctions, ill founded perhaps in the nation in which they received their birth, and at any rate not applicable to the circumstances of other countries.
The analysis, as far as it goes, is as applicable to the legal concerns of one country as of another: and where, if it had descended into further details, it would have ceased to be so, there I have taken care always to stop: and thence it is that it has come to be so much more particular in the class of offences against individuals, than in any of the other classes. One use then of this arrangement, if it should be found to have been properly conducted, will be its serving to point out in what it is that the legal interests of all countries agree, and in what it is that they are liable to differ: how far a rule that is proper for one, will serve, and how far it will not serve, for another. That the legal interests of different ages and countries have nothing in common, and that they have every thing, are suppositions equally distant from the truth.
LVII. A natural method, such as it hath been here attempted to exhibit, seems to possess four capital advantages; not to mention others of inferior note. In the first place, it affords such assistance to the apprehension and to the memory, as those faculties would in vain look for in any technical arrangement. That arrangement of the objects of any science may, it should seem, be termed a natural one, which takes such properties to characterise them by, as men in general are, by the common constitution of man's nature, independently of any accidental impressions they may have received from the influence of any local or other particular causes, accustomed to attend to: such, in a word, as naturally, that is readily and at first sight, engage, and firmly fix, the attention of any one to whom they have once been pointed out. Now by what other means should an object engage or fix a man's attention, unless by interesting him? and what circumstance belonging to any action can be more interesting, or rather what other circumstance belonging to it can be at all interesting to him, than that of the influence it promises to have on his own happiness, and the happiness of those who are about him? By what other mark then should he more easily find the place which any offence occupies in the system, or by what other clue should he more readily recall it?
LVIII. In the next place, it not only gives at first glance a general intimation of the nature of each division of offences, in as far as that nature is determined by some one characteristic property, but it gives room for a number of general propositions to be formed concerning the particular offences that come under that division, in such manner as to exhibit a variety of other properties that may belong to them in common. It gives room therefore, for the framing of a number of propositions concerning them, which, though very general, because predicated of a great number of articles, shall be as generally true.
LIX. In the third place, it is so contrived, that the very place which any offence is made to occupy, suggests the reason of its being put there. It serves to indicate not only that such and such acts are made offences, but why they ought to be. By this means, while it addresses itself to the understanding, it recommends itself in some measure to the affections. By the intimation it gives of the nature and tendency of each obnoxious act, it accounts for, and in some measure vindicates, the treatment which it may be thought proper to bestow upon that act in the way of punishment. To the subject then it is a kind of perpetual apology: showing the necessity of every defalcation, which, for the security and prosperity of each individual, it is requisite to make from the liberty of every other. To the legislator it is a kind of perpetual lesson: serving at once as a corrective to his prejudices, and as a check upon his passions. Is there a mischief which has escaped him? in a natural arrangement, if at the same time an exhaustive one, he cannot fail to find it. Is he tempted ever to force innocence within the pale of guilt? the difficulty of finding a place for it advertises him of his error. Such are the uses of a map of universal delinquency, laid down upon the principle of utility: such the advantages, which the legislator as well as the subject may derive from it. Abide by it, and every thing that is arbitrary in legislation vanishes. An evil-intentioned or prejudiced legislator durst not look it in the face. He would proscribe it, and with reason: it would be a satire on his laws.
LX. In the fourth place, a natural arrangement, governed as it is by a principle which is recognised by all men, will serve alike for the jurisprudence of all nations. In a system of proposed law, framed in pursuance of such a method, the language will serve as a glossary by which all systems of positive law might be explained, while the matter serves as a standard by which they might be tried. Thus illustrated, the practice of every nation might be a lesson to every other: and mankind might carry on a mutual interchange of experiences and improvements as easily in this as in every other walk of science. If any one of these objects should in any degree be attained, the labour of this analysis, severe as it has been, will not have been thrown away.
107. The above hints are offered to the consideration of the few who may be disposed to bend their minds to disquisitions of this uninviting nature: to sift the matter to the bottom, and engage in the details of illustration, would require more room than could in this place be consistently allowed.
108. See Fragment on Government, preface p. xlv. edit. 1776. preface p. xlvii. edit. 1823.
109. Imagine what a condition a science must be in, when as yet there shall be no such thing as forming any extensive proposition relative to it, that shall be at the same time a true one: where, if the proposition shall be true of some of the particulars contained under it, it shall be false with regard to others. What a state would botany, for example, be in, if the classes were so contrived, that no common characters could be found for them? Yet in this state, and no better, seems every system of penal law to be, authoritative or unauthoritative, that has ever yet appeared. Try if it be otherwise, for instance, with the delicta privata et publica, and with the publica ordinaria, and publica extra-ordirnaria of the Roman law. All this for want of method: and hence the necessity of endeavouring to strike out a new one.
Nor is this want of method to be wondered at. A science so new as that of penal legislation, could hardly have been in any better state. Till objects are distinguished, they cannot be arranged. It is thus that truth and order go on hand in hand. It is only in proportion as the former is discovered, that the latter can be improved. Before a certain order is established, truth can be but imperfectly announced: but until a certain proportion of truth has been developed and brought to light, that order cannot be established. The discovery of truth leads to the establishment of order: and the establishment of order fixes and propagates the discovery of truth.
110. Heineccius, Johann Gottlieb, Elementa, p. vii, §79, 80.
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