248 OF THE LIMITS OF THE Chap, stained from subjecting to censure, on the part of -~v — ' 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 ques- tionable a nature under the controul of law, will argue either a very immature age, in which the difficulties, which give birth to that danger are not descried; or a very enlightened age, in which they are overcome*.
XV.
Legislation Por the Sake of obtaining the clearer idea of how lar necessary for the Hmits betwceu the art of legislation and private the enforce-,,, ment of the ethics, it may now be time to call to mind the prudence, 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 dis- tinguished. 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 * In certain countries, in which the voice of the people has a more especial controul over the hand of the legislator, nothing can exceed the dread which they are under of see- ing any effectual provision made against the offences which come under the head of defamation, particularly that branch of it which may be stiled 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.
PENAL BRANCH OF JURISPRUDENCE. ^^^ only be through some defect on the part of the ^^^^^ understanding, if a man be ever deficient in point ' "^ ' of duty to himself. If he does wrong, there is nothing else that it can be owing to but either some inadvertence * or some missupposal *, with regard to the circumstances on which his hap- piness depends. It is a standing topic of com- plaint, that a man knows too little of himself. Be it so: but is it so certain that the legislator must know more f J? It is plain, that of indivi- duals the legislator can know nothing: concerning those points of conduct which depend upon the particular circumstances of each individual, it is plain, therefore, that he can determine nothing to advantage. It is only with respect to those broad lines of conduct in which all persons, or very large and permanent descriptions of persons, may be in a way to engage, that he can have any pretence for interfering; and even here the propriety of his interference will, in most instances, lie very open * See ch. ix. [Consciousness.]
f On occasions like this, the legislator should never lose sight of the well-known story of the oculist and the sot. A countryman who had hurt his eyes by drinking, went to a celebrated oculist for advice. He found him at table, with a glass of wine before him. " You must leave off drinking," said the oculist. " How so," says the countryman? " You don't, and yet methinks your own eyes are none of the best." — "That's very true, friend," replied the oculist: "but you " are to know, I love my bottle better than my eyes."
X Ch. xvi. [Division] lii.
250 OF THE LIMITS OF THE 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 encrease the efficacy of private ethics, by giving strength and direc- tion 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 mis- chief 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 f, and rooting out the influence of all the social mo- tives. 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 arti- ficial disrepute.
* Evil of apprehension: third branch of the evil of a pu- nishment. Ch. xiii. § iv.
t Derivative evils: fourth branch of the evil of a punish- ment, lb.
PENAL BRANCH OF JURISPRUDENCE. 351 XVI. Chap.
XVII.
It may be observed, that with reffard to this "—->/ — ' branch of duty, legislators have, in general, been f"? f""" '" disposed to carry their interference full as far as is expedient. The great difficulty here is, to per- suade 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 expence.
XVII.
The mischief of this sort of interference is more — Particuparticularly conspicuous m the article oi religion, teis of re- The reasoning, in this case, is of the following ° stamp. There are certain errors, in matters of belief, to which all mankind are prone: and for these errors in judgment, it is the determination of a Being of infinite benevolence, to punish them with an infinity of torments. But from these errors the legislator himself is necessarily free: for the men, who happen to be at hand for him to consult with, being men perfectly enlightened, unfettered, and unbiassed, have such advantages over all the rest of the world, that when they sit down to 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 352 OF THE LIMITS OF THE C"AP. out a hand to save them? Such, for example, "^ — V — ' seems to have been the train of reasoning-, and such the motives, which led Lewis the XlVth 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 another place f.
* 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 reason- ing, 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 produc- tion of the effect. Sympathy, a concern for the danger they appear to be exposed to, gives birth to the wish of freeing them from it: that wish shews itself in the shape of a com- mand: 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 fewel to the flame. A kind of revenge exasperates the severities of coer- cive policy.
PENAL BRANCH OF JURISPRUDENCE. 253 iar XVIII. Chat The rules oi probity are those, which in point of _^ expediency stand most in need of assistance on J,^j.''j,jg^gJ, the part of the legislator, and in which, in point [°''^*'^™^^j°[J'/ of fact, his interference has been most extensive, of probity. There are few cases in which it would be expe- dient 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 pro- bity 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 in- vested 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 *.
* 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.
254 OF THE LIMITS OF THE Chap. XIX.
XVII.
^ — V — ' As to the rules of beneficence, these, as far as — of the dictates of coucems iiiatters of detail, must necessarily be beneficence.,..,..„ abandoned in great measure to the jurisdiction of private ethics. In many cases the beneficial qua- lity of the act depends essentially upon the dis- position of the agent; that is, upon tlie motives by which he appears to have been prompted to perform it: upon their belonging to the head of sympathy, love of amity, or love of reputation; and not to any head of self-regarding motives, brought into play by the force of political con- straint: in a word, upon their being such as de- nominate his conduct jree and 'voluntary, accord- ing to one of the many senses given to those am- biguous expressions*. The limits of the law on or do tliey oppose them, or do they remain neuter? a very interesting question this, but one that belongs not to the present subject. It belongs exclusively to that of private ethics. Principles which may lead to the solution of it may -be seen in A Fragment on Government, p. 150. Lond. edit.
* 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 ^tre embesoignees: the tech- nical word, which, he says, was appropriated to this pur- pose. These sort of law-proceedings seem not very well calculated to answer the design: accordingly we hear no- thing of them now-a-days. The French ladies of the present age seem to be under no such difficulties.
• Quest, sur I'Encyclop. torn. 7. art. Iiupuissance.
FENAL BRANCH OF JURISPRUDENCE. 255 this head seem, however, to be capable of being Chap. extended a good deal farther than they seem ever "^ — v — ' 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 with- out 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.
XX.
To conclude this section, let us recapitulate Difference and bring to a point the difference between vatrethicl' private ethics, considered as an art or science, on legislation re- 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 * 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 down- wards 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 punishment misapplied?
OF THE LIMITS OF THE Chap. XVII.
how a multitude of men, composing a community, may be disposed to pursue that course which upon the whole is the most conducive to the happiness of the whole community, by means of motives to be applied by the legislator.
We come now to exhibit the limits between penal and civil jurisprudence. For this purpose it may be of use to give a distinct though summary view of the principal branches into which jurispru- dence, 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 jurispru- dence. A book of jurisprudence can have but one or the other of two objects: 1. To ascertain what the law* is: 2. ascertain what it ought to be. In the former case it may be stiled a book of ea- pository jurisprudence; in the latter, a book of * 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 ac- customed to annex to it.
PENAL BRANCH OF JURISPRUDENCE. 257 censorial jurisprudence: or, in other words, a Chap. book on the art of legislation. ^ — v — ' XXII.
A book of expository jurisprudence is either Expository , jurispruaicthoritative or unautJwritative. It is stiled au-dence, au- thoritative, when it is composed by him who, by — unautho- representing the state of the law to be so and so, causeth it so to be; that is, of the legislator him- self: unauthoritative, when it is the work of any other person at large.
XXIII.
Now law, or the law, taken indefinitely, is an sources of abstract and collective term; which, when it tions yet"re- means any thing, can mean neither more nor less ™^"""2' 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 juris- * In most of the European languages there are two diffe- rent words for distinguishing the abstract and the concrete senses of the word laio: 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 diud recht. The English is at present destitute of this advantage.
In the Anglo-Saxon, besides lage, and several other words, for the concrete sense, there was the word right, answering to the German recht, for the abstract; as may be seen in the compound folc-right, and in other instances. But the word right having long ago lost this sense, the modern English no longer possesses this advantage.
VOL. II. S ^ OF THE LIMITS OF THE ^^^jj- prudence is susceptible, they must all of them be ^ ^^ — ' taken from some circumstance or other of which such individual laws, or the assemblages into which they may be sorted, are susceptible. The circumstances that have given rise to the principal branches of jurisprudence we are wont to hear of, seem to be as follow: 1. The ejctent of the laws in question in point of dominion. 2. The political quality of the persons whose conduct they under- take to regulate. 3. The time of their being in force. 4. The manner in which they are e.vpressed. 5. The concern which they have with the article of punishment.
XXIV.
jurispra- 111 thc first place, in point of extent, what is — uuiversai. delivered concerning the laws in question, may have reference either to the laws of such or such a nation or nations in particular, or to the laws of all nations whatsoever: in the first case, the book may be said to relate to local, in the other, to universal, jurisprudence.
Now of the infinite variety of nations there are upon the earth, there are no two which agree exactly in their laws: certainly not in the whole; perhaps not even in any single article; and let them agree to-day, they would disagree to-morrow. This is evident enough with regard to the substance of the laws: and it would be still more extraor- dinary if they agreed in point oi form; that is, if they were conceived in precisely the same strings PENAL BRANCH OF JURISPRUDENCE. '^59 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 lan- guages are pretty exactly correspondent to one another: which comes to the same thing nearly as if they were the same. Of this stamp, for ex- ample, are those which correspond to the words power, right, obligation, liberty, and many others.
It follows, that if there are any books which can, properly speaking, be stiled books of universal jurisprudence, they must be looked for within very narrow limits. Among such as are exposi- tory, there can be none that are authoritative: nor even, as far the substance of the laws is con- cerned, any that are unauthoritative. To be sus- ceptible 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 defini- tion 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 2C0 OF THE LIMITS OF THE C"AP- the law, extends his views to a few of the nations * — ^ — ' with which his own is most connected, it is com- mon 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 coin- cide 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 same of these points will, as far as it goes, be the business of the body of this work.
XXV.
—internal ^^ ^^^® sccoud place, with regard to the political and interna- Qualitii of the persous whosc couduct is the object tionaJ. 7 ^ r j of the law. These may, on any given occasion, be considered either as members of the same state, or as members of different states: in the first case, the law may be referred to the head of internal, in the second case, to that of inter- national* jurisprudence.
* 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 PENAL BRANCH OF JURISPRUDENCE. 561 Now as to any transactions which may take Chap.
place between individuals who are subjects of "^ — v — ' different states, these are regulated by the inter- nal laws, and decided upon by the internal tribu- nals, 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 nafd, to the condition of a private person, as often as he submits his cause to either tribunal; whether by claiming a benefit, or de- fending himself against a burthen. There remain then the mutual transactions between sovereigns as such, for the subject of that branch of jurispru- dence which may be properly and exclusively termed international*.
way, the branch of law which goes commonly under the name of the law of nations: an appellation so uncharacteris- tic, that, were it not for the force of custom, it would seem rather to refer to internal jurisprudence. The chancellor D'Auguesseau has already made, I find, a similar remark: he says, that what is commonly called droit des gens, ought rather to be termed droit entre les gensf.
* 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 562 OF THE LIMITIS OF THE Chap. With what degree of propriety rules for the "^ — V — ' conduct of persons of this description can come under the appellation of laws, is a question that must rest till the nature of the thing called a law shall have been more particularly unfolded.
It is evident enough, that international juris- prudence may, as well as internal, be censorial as well as expository, unauthoritative as well as authoritative.
XXVI.
Internal ju- Internal jurisprudence, again, may either connational and ccm all the membcrs of a state indiscriminately, local or par- or such of thcm ouly as are connected m the way of residence, or otherwise, with a particular dis- trict. Jurisprudence is accordingly sometimes distinguished into iiational and provificial. But as the epithet provincial is hardly applicable to disso: 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 bailywick. As to the sheriffs, Philip, we may believe, was in no great fear of them: but, what answered the same purpose, he happened on his part to have demands upon some other merchants, whom, so long as the outlawry remained in force, there was no proceeding against. Gondemar paid the money*. This was internal jurisprudence: if the dispute had been betwixt Philip and James himself, it would have been international.
As to the word international, from this work, or the first of the works edited in French by Mr. Dumont, it has taken root in the language. Witness Reviews and Newspapers.
PENAL BRANCH OF JURISPRUDENCE. ^63 tricts SO small as many of those which have laws Svir* of then- own are wont to be, such as towns, "^ — ^ — ' parishes, and manors; the term local (where uni- versal jurisprudence is plainly out of the question) or the term particular, though this latter is not very characteristic, might either of them be more commodious *.
XXVII.
XXVII.
Third, with respect to time. In a work of Jurispru- the expository kind, the laws that are in question deut— liv- 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 juris- prudence; and, if the word jurisprudejice be ex- pressive 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 * 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 contradistinc- tion to international law, and the imaginary law of nature. It might still be used in this sense, without scruple, in any other language.
264 OF THE LIMITS OB" THE Chap. }jq thosc wliicli are in force, no such epithet as XVII.
' — V — ' that of present or living commonly appears.
Where a book is so circumstanced, that the laws which form the subject of it, though in force at the time of its being written, are in force no longer, that book is neither a book of living jurisprudence, nor a book on the history of juris- prudence: 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 ex- pository 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 circum- stances that have attended the establishment of laws actually in force. But the exposition of the dead laws which have been superseded, is inse- parably interwoven with that of the living ones which have superseded them. The great use of both these branches of science, is to furnish ex- amples for the art of legislation*.
* Of what stamp are the works of Grotius, PufFendorf, and Burlamaqui? Are they pohtical or ethical, historical or juri- dical, expository or censorial? — Sometimes one thing, some- times 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 PENAL BRANCH OF JURISPRUDENCE. 265 XXVIII. Chap.
XVII.
Fourthly, in point of expression, the laws in ^— v — ' question may subsist either in the form of statute deuce, staor m that oi customary law. customary.
As to the difference between these two bran- ches (which respects only the article of form or expression) it cannot properly be made appear till some progress has been made in the definition of a law.
XXIX.
Last, The most intricate distinction of all, and Junspru- Qcncc civil that which comes most frequently on the carpet, —peiiai— is that which is made between the civil branch of jurisprudence and the penal, which latter is wont, in certain circumstances, to receive the name of criminal.:>^^^-..
What is a penal code of laws? What a civil Qnesticn, code: Or what nature are their contents: Is it the distinc- that there are two sorts of laws, the one penal the the civil other civil, so that the laws in a penal code are all thrpenat" stated.
pretended law of nature; an obscure phantom, which, in the imaginations of those who go in chace of it, points some- times 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.
• See Chap. II. [Principles adverse] xiv.
266 OF THE LIMITS OF THE