An Introduction to the Principles of Morals and Legislation

Jeremy Bentham
(1748-1832)

Chapter XVII

The Last Chapter.

OF THE LIMITS OF THE PENAL BRANCH OF JURISPRUDENCE

§ 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.*121 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.

XVII. 1 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.

XVII. 2 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.

XVII. 3 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.

XVII. 4 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.

XVII. 5 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.*122 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.

XVII. 6 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.

XVII. 7 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.

XVII. 8 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:*123 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.

XVII. 9 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.

XVII. 10 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.*124 Now the cases in which punishment, meaning the punishment of the political sanction, ought not to be inflicted, have been already stated.*125 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.

XVII. 11 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.

XVII. 12 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 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 influence.

XVII. 13 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,*126 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.

XVII. 14 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,*127 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:*128 by the particular circumstances of the temptation:*129 and by the circumstances influencing the sensibility of the several individuals who are exposed to it.*130 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.

XVII. 15 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 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 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.*131

XVII. 16 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*132 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?*133 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,*134 tearing the bonds of sympathy asunder,*135 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.

XVII. 17 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. 18 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.*136 But of this more fully in another place.*137

XVII. 19 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 ethics.*138

XVII. 20 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.*139 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.*140

XVII. 21 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.

XVII. 22 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.

XVII. 22

§ 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*141 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.

XVII. 23 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.

XVII. 24 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.*142 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.

XVII. 25 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.

XVII. 26 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 others.

XVII. 27 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.

XVII. 28 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.

XVII. 29 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 international*143 jurisprudence.

XVII. 30 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.*144

XVII. 31 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.

XVII. 32 It is evident enough, that international jurisprudence may, as well as internal, be censorial as well as expository, unauthoritative as well as authoritative.

XVII. 33 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.*145

XVII. 34 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 appears.

XVII. 35 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.

XVII. 36 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.*146

XVII. 37 XXVIII. Fourthly, in point of expression, the laws in question may subsist either in the form of statute or in that of customary law.

XVII. 38 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.

XVII. 39 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 criminal.

XVII. 40 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.

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XVII. 41 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.

XVII. 41 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.

XVII. 42 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.

XVII. 43 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.

XVII. 44 Every law, when complete, is either of a coercive or an uncoercive nature.

XVII. 45 A coercive law is a command.

XVII. 46 An uncoercive, or rather a discoercive, law is the revocation, in whole or in part, of a coercive law.

XVII. 47 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 quality.

XVII. 48 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.

XVII. 49 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.

XVII. 50 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.

XVII. 51 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 flrst 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 to hang.

XVII. 52 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 efficacious.

XVII. 53 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.

XVII. 54 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.

XVII. 55 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.

XVII. 56 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.

XVII. 57 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.

XVII. 58 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. IX. 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.

XVII. 59 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.

XVII. 60 A circumstance, that will naturally contribute to increase the difficulty of the discovery, is the great variety of ways in which the operation 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.

XVII. 61 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.

XVII. 62 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.

XVII. 63 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 a civil branch of the law and the penal.

XVII. 64 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.

XVII. 65 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:

XVII. 66 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?

XVII. 67 To this question the following answer seems likely to come as near as any other to the truth.

XVII. 68 The civil code would not consist of a collection of civil laws, each complete in itself, as well as clear of all penal ones:

XVII. 69 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. 70 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.

XVII. 71 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.

XVII. 72 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,*147 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.

XVII. 73 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.

XVII. 74 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.

XVII. 75 Besides the civil and the penal, every complete body of law must contain a third branch, the constitutional.

XVII. 76 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.

XVII. 77 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.

XVII. 78 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.

XVII. 79 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.

XVII. 80 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.

XVII. 81 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.

XVII. 82 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.

XVII. 83 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.

XVII. 84 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.

XVII. 85 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.

XVII. 86 If it were thought necessary to recur to experience for proofs of this difficulty, and this necessity, they need not be long wanting.

XVII. 87 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.

XVII. 88 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.

XVII. 89 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.*148

XVII. 90 The following, to go no farther, is the first and fundamental article:

XVII. 91 '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.'

XVII. 92 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.

XVII. 93 Therefore this is the case, amongst others, with every coercive law.

XVII. 94 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.'

XVII. 95 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.'

XVII. 96 The above-mentioned consequences may suffice for examples, amongst an endless train of similar ones.*149

XVII. 97 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.

END