OF THE LIMITS OF THE PENAL BRANCH OF
§ 1. Limits between Private Ethics and the
Art of legislation.
I. So much for the division of offenses in general. Now
an offense 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 as 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 enquiry, 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 semi-social 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 him: 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. 2. 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 natured 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
anything 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
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 lie 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 control.
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. Secondly, 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 effectively
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 legislators the judge may be
disposed to make of it. As far as legislation is concerned, it will
depend upon the degree of perfecting 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
control 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
mis-supposal 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 pretense 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
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 unbiased, have such
advantages over all the rest of the world, that when they sit down to enquire
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 malevolence could
have devised. But of this more fully in
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 thing 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
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
motive 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
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 follows: 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 today, 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
It follows, that if there are any books which can, properly speaking, 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 ease, the law may be
referred to the head of internal, in the second case, to that of
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
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
It is evident enough, that international jurisprudence may, as well as
internal, be censorial as well as expository, unauthoritative as well as
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
XXVII. Thirdly, 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
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
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. Lastly, 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
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.
1. 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 enquiries had not
as yet reached it. But in the concluding note of this same chapter, in
paragraphs xxii. to the end, the omission may be seen in some measure supplied.
2. 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 for 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 It may come one
day to be recognized, 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?
3. Ch. vi. [Sensibility] iii.
4. 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.
5. Ch. xiii [Cases unmeet].
6. Ch. xiii [Cases unmeet], § iv.
7. Ch. xiv [Proportion] xviii. Rule 7.
8. Ch. xiii [Cases unmeet], § iii. Append. tit.
9. Ch. xi. [Disposition] xxxv. &c.
10. Ch. vi. [Sensibility].
11. In certain countries, in which the voice of the
people has a more especial control over the hand of the legislator, nothing can
exceed the dread which they are under of seeing any effectual provision made
against the offenses 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.
12. See ch. ix. [Consciousness].
13. Ch. xvi. [Division] lii.
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
me thinks 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.”
14. Evil of apprehension: third branch of the evil of a punishment.
15. Derivative evils: fourth branch of the evil of a punishment.
16. 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 shows 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.
17. See B. I. tit. [Self-regarding offences].
18. 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 he seen in A Fragment on
Government, p. 150 Lond. edit. 1776 — and p. 114, edit. 1823.
19. If we may believe M. Voltaire, there was a time when the French ladies who
thought themselves neglected by their husbands, used to petition pour
étre embesoignèes: the technical word, which, he says, was
appropriated to this purpose. This sort of law-proceedings seems 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
20. 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: lifting 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
21. 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.
22. 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
23. 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 uncharaeteristic, that, were it not for the force of custom,
it would seem rather to refer to internal jurisprudence. The chancellor
D'Aguesseau 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.
24. 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, wherever 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 uno
proceeding against. Gondemar paid the money. 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 A. Dumont, it has taken root in the language. Witness
reviews and newspapers.
25. 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.
26. 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. 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.
27. I. Here ends the original
work, in the state into which it was brought in 5 November, 1780. What follows
is now added in January, 1789.
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 achieve: 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.
II. 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 enquiry, 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 recognized 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.
III. Every law, when complete, is either of a
coercive or an 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.
IV. What has been termed a declaratory law,
sofar as it stands distinguished from either a coercive 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
V. 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
VI. 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 simply 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.
VII. 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 in 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 discoereive 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
VIII. 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 simply 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
IX. 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.
X. 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 cannot 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 no TITLE so 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 a TITLE to 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.
XI. 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 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
XII. 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. X 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
XIII. 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.
XIV. 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 maybe 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 so 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.
XV. 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.
XVI. 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, of are naturally involved, results the obscurity of
the limits betwixt a civil and a penal code, betwixt a 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 a 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
XVII. 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 many
correspondent punitory laws.
XVIII. 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.
XIX. 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, 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.
XX. 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 primaeval 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.
XXI. 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.
XXII. 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 other TITLE.
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
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.
XXIII. 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.
XXIV. In countries, where a great part of the law
exists in no other shape, than that of which 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 of whole fabric of the laws of property, is
nowhere else to be found. And, as uncertainty is of 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 remain uncertain and incomplete. What are those countries? To this
hour, every one on the surface of the globe.
XXV. 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
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.
XXVI. 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
XXVII. 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.
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's 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.
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.
28. See Lewis XIV's Code Noir.
29. Quest. sur l'Encyclop. tom. 7. art. Impuissance.
30. Œvres, Tom. ii. p. 337, edit. 1773, 12. no.
31. Selden's Table-Talk, tit. Law.
32. See Chap. II. [Principles Adverse] xiv.
33. Mirabeau sur la Monarchie Prussienne, Tom. v. Liv.
8. p. 215.
34. Recherches sur les États Unis, 8 vo. 1788,
vol. i. p. 158.
35. 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 enduedby the creator with certain unalienable
rights: that amongst those are life, liberty and the pursuit of
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 Independence. 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.
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