xvYr' V^^^^ laws, while the laws in a civil code are all ^ — V — ' 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 man- ner 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 distin- guished: or, in other words, to ascertain what the properties are that are to be found in every object which can with propriety receive the appel- lation of a law. This then will be the business of the third and fourth sections: what concerns the import of the word criminaly as applied to law, will be discussed separately in the fifth*.
Occasion * Here ends the original work, in the state into which it ^J^,,?3Twas brought in November, 1780. What follows is now eluding note, 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 tole- rably 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 PENAL BRANCH OF JURISPRUDENCE. 267 the nature of the task, which such a work will have to at- Chap. chieve: it will at the same time furnish, not any thing like a v ^ ' ^ 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.
What is a law? What the parts of a law? The subject of By a law these questions, it is to be observed, is the logical, the ideal, nfeTnuTta- the intellectual whole, not the physical one: the law and not '"'^• the statute. An inquiry, directed to the latter sort of object, could neither admit of difficulty nor afford instruction. In this sense whatever is given for law by the person or persons 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 con- taining an entire body of laws, perfect in all its parts, would not be more so. By the word laio 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.
Every law, when complete, is either of a coercive or uncoer- Every law is cive nature. ^'^^^' \ command or A coercive law is a command. a revocation An uncoercive, or rather a discoercive, law is the revocation, in whole, or in part, of a coercive law.
What has been termed a declaratory law, so far as it stands A declaradistinffuished from either a coercive or adiscoercive law, is not ^""^^ ''^^ '^ ° ' not, properproperly speaking a law. It is not the expression of an act 'j speaking, 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 docu- ment expressive of some act of the will, exercised, not at the 268 ON THE LIMITS OF 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.
V. Every coercive law creates an offence, that is, converts an cive bw ere- ^^^ °^ ^°"^^ ^°'"* ^^ Other into an offence. It is only by so ates an of- doing that it can impose obligation, that it can produce coer- fence.
cion.
VI. A law confining itself to the creation of an offence, and a ting an of- ^^^^ commanding a punishment to be administered in case of fence, and the Commission of such an offence, are two distinct laws: one appoint ing punish- not parts (as they seem to have been generally accounted distin"^ hitherto) of one and the same law. The acts they command laws. 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 stiled; the former, a simple imperative law; the other, a punitory; but the punitory, if it commands the punishment to be inflicted; and does not merely permit it, is as truly imperative as the other: only it is punitory besides, which the other is not.
"VII. A law of the discoercive kind, considered in itself, can have vebw "^an ^^ punitory law belonging to it: to receive the assistance and have no pu- support of a punitory law, it must first receive that of a simappertain- P^y imperative or coercive law, and it is to this latter that the mgto It but punitory law will attach itself, and not to the discoercive one.
through the "^ •'.
intervention Example", discoercive law. The sheriff has power to hang all civeone" *"^^ ^* the judge, proceeding in due course of law, shall order him to hang. Example of a coercive law, made in support of the above discoercive one. Let no man hinder the sheriff from hanging such as the judge, proceeding in due course of law, shall order him to hang. Example of a punitory law, made in support of the above coercive one. Let the judge cause to be imprisoned whosoever attempts to hinder the sherifffrom hanging PENAL BRANCH OF JURISPRUDENCE. 36£> one, whom the judge, proceeding in due course of law, has or- dered h'lm to hang.
But though a simply imoerative law, and the punitory law VIII. attached to it, are so far distinct laws, that the former con- nitory law tains nothing of the latter, and the latter, in its direct tenor, ".^^o'^'es the ^ ' simply irncontains nothing of the former; yet by implication, and that perative one a necessary one, the punitory does involve and include the import of the simple imperative law to which it is appended.
To say to the judge. Cause to be hanged whoever in due form of law is convicted of stealing, is, though not a direct, yet as intelligible a way of intimating to men in general that they must not steal, as to say to them directly. Do not steal.- and one sees, how much more likely to be efficacious.
It should seem then, that, wherever a simply imperative ^^^ The simply law is to have a punitory one appended to it, the former imperative might be spared altogether; in which case, saving the excep- ^H^J^l^^ ^^g tion, (which naturally should seem not likely to be a fie- spared, but quent one) of a law capable ot answering its purpose without gitory mat- 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.
It will happen in the instance of many, probably of most, X. possibly of all commands endued with the force of a public ^^^^^ exposi- law, that, in the expression given to such a command, it shall '^■■"3' niatter. be necessary to have recourse to terms too complex in their signification, to exhibit the requisite ideas, without the assist- ance 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 terras capable of themselves of exhibiting the ideas in question, than the real and immediate representatives of tliose ideas.
Take for instance the law. Thou shalt not steal: Such a command, were it to rest there, could never suflficiently answer the purpose of a law. A word of so vague and unex- ^0 OF THE LIMITS OF THE Chap, plicit a meaning can no otherwise perform this office, than by > — \^-^ giving a general intimation of a variety of propositions, each requiring, to convey it to the apprehension, a more particular and ample assemblage of terms. Stealing, for example, (according to a definition not accurate enough for use, but sufficiently so for the present purpose) is the taking of a thing which is another s, by one who has 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 com- pletely expressed? Certainly not. For what is meant by a man's having a title to take a thing P 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 preju- dice.
XI. Such then is the nature of a general law, that while the of its compa- imperative- part of it, the punctum saliens as it may be termed, rativebulk»s of this artificial bodv, shall not take up above two or three to legislative words, its expository appendage, without which that impera- comman s. ^j^^ ^^^.^ could not rightly perform its office, may occupy a considerable volume.
But this may equally be the case with a private order given in a family. Take for instance one from a bookseller to his foreman. Remove, from this shop to my new one, my whole stock, according to this printed catalogue. — Remove, from this shop to my new one, my whole stock, is the imperative matter of this order; the catalogue referred to contains the expository appendage. XII. The same mass of expository matter may serve in common Hip saine f^^.^ ^^^ appertain in common to, many commands, many PENAL BRANCH OF JURISPRUDENCE. 271 masses of imperative matter. Thus, amongst other things the Chap, catalogue of collative and ablative events, with respect to titles ^ ^ ' ' above spoken of, (see No. IX. of this note) will belong in ^''P"^'""-^ common to all or most of the laws constitutive of the va- serve in rious offences against property. Thus, in mathematical dia- niany laws, grams, one and the same base shall serve for a whole cluster of triangles.
Such expository matter, being of a complexion so different XIII. from the imperative, it would be no wonder if the connec- tive charac- tion of the former with the latter should escape the obser- ^^^ essential to law, is apt vation: which, indeed, is perhaps pretty generally the case, tobeconceal- And so long as any mass of legislative matter presents itself, expositor which is not itself imperative or the contrary, or of which the matter, connection with matter of one of those two descriptions is not apprehended, so long and so far the truth of the propo- sition, 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 legis- lative matter, which wear the complexion of complete laws upon the face of them, also the method to be taken for ren- dering them really complete, remain undiscovered.
A circumstance, that will naturally contribute to increase XIV.
the difficulty of the discovery, is the great variety ot ways in ment is fa- which the imperation of a law may be conveyed — the great ^""'"'''^ by variety of forms which the imperative part of a law may in- tude of indi- ,..., J- ii IT rect forms in discriminately assume: some more directly, some less di- whicli impe- rectly expressive of the imperative quality. Thou shalt not ^^^'^^ "'''" steal. Let no man steal. Whoso stealeth shall be punished so ble of being and so. If any man steal, he shall he punished so ond 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 'i-'i OF THE LIMITS OF THE Chap. XVII.
XV.
Number aiid nature of the laws in a code, how de- termined.
XVI.
Gsneral idea of the linjits between a civil and a penal code.
manifest to what a degree, in some of them, the imperative quahty is clouded and concealed from ordinary apprehen- sion.
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 dis- coercive 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, includ- ing 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.
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, be- twixt the civil branch of the law and the penal.
The question, What parts of the total mass of legislative matter belong to the civil branch, and what to the penal? sup- poses that divers political states, or at least that some one such state, are to be found, having as well a civil code as a penal code, each of them complete in its kind, and marked out by certain limits. But no one such state has ever yet existed.
To put a question to which a true answer can be given, we must substitute to the foregoing question some such one as that which follows: Suppose two masses of legislative matter to be drawn up at this time of day, the one under the name of a civil code, the PENAL BRANCH OF JURISPRUDENCE.
XV n.
other of a penal code, each meant to be complete in its Chap 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 The civil code would consist chiefly of mere masses of ex- XVII. pository matter. The imperative matter, to which those ^ (.j^jj ^^^^^ 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 puni- tory laws.
The penal code then would consist principally of punitive XVIII. 1 • 1 •, ■. n,,,,,. Contents of laws, mvomng the imperative matter of the whole number of a penal 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.
The mass of legislative matter published in French as well xix.
as German, under the auspices of Frederic lid. of Prussia, ^^ the Code -Trcdcric the by the name of Code Frederic, but never established with imperative force of law*, appears, for example, to be almost wholly *^!'^''^'^'^'' " composed of masses of expository matter, the relation of in the ex- which to any imperative matter appears to have been but ^^/ter"^ very imperfectly apprehended.
* Mirabeau sur la Monarchic Prussiennc, Tom. v. Liv. 8. p. 215. VOL. II. T ^^^ OF THE LIMITS OF THE Chap. fn that enormous mass of confusion and inconsistency, ^^ — V — ' the ancient Roman, or, as it is termed by way of eminence, So in the ^^^ ^^^^^ '^w, the imperative matter, and even all traces of Roraanlavv. 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 ob- ligations— 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 ffrew up out of the ruins barian codes of the Roman Empire, Law, emerging from under the mounspicuc)us*^°"' *^'" °^ expository rubbish, reassumed for a while the lan- guage of command: and then she had simplicity at least, if nothing else, to recommend her. XXII Constitu-' Besides the civil and the penal, every complete body of tional code, law must contain a third branch, the constitutional.
with the two The constitutional branch is chiefly employed in conferothers. ring, 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 in- stance, by discoercive or permissive laws, operating as ex- ceptions 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 io be hanged.
PENAL BRANCH OF JURISPRUDENCE. ^^* The parts which perform the function of indicating who ^^^^ the individuals are, who, in every case, shall be considered ^ — v— v as belonging to those classes, have neither a permissive complexion, nor an imperative.
They are so many masses of expository matter, appertain- ing in common to all laws, into the texture of which, the names of those classes of persons have occasion to be insert- ed. 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 9 He who has been invested with that office in such a manner: and in respect of whom no e^iejii 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.
Thus it is, that one and the same law, one and the same ^,^^f^^' Thus the command, will have its matter divided, not only between two matter of great codes, or main branches of the whole body of the laws, °^^ ^ ^{.
the civil and the penal; but amongst three such branches, ^ided a-...mong all the civil, the penal, and the constitutional. three codes.
In countries, where a great part of the law exists in no XXIV.
other shape, than that of what in England is called common,natter a law but might be more expressively termed judiciary, there 8'"^^* ^1"°"" ® '^. tityot It exmust be a great multitude of laws, the import of which can- ists every not be sufficiently made out for practice, without referring ^^^ ^^^^^.
to this common law, for more or less of the expository matter ^o""™ '^•'^" belonging to them. 1 bus inEngland the exposition of the word common or title, that basis of the whole fabrick of the laws of property, is J"°'<^'3''y nowhere else to be found. And, as uncertainty is the very essence of every particle of law so denominated (for the instant it is clothed in a certain authoritative form of words it changes its nature, and passes over to the other denomi- nation) 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 honr, every one on the surface of the globe.
OF THE LIMITS OF THE Chap. XVII.
XXV.
Hence the deplorable state of the science of legislation, considered in respect of its yorm.
XXVI.
Occasions affording an exemplifica' tion of the difficulty as trell as iraportance of this branch of science; — attempts to limit the powers of supreme representa- tive legis- latures.
Had the science of architecture no fixed nomenclature belonging to it — were there no settled names, for distin- guishing the different sorts of buildings, nor the different parts of the same building from each other — what would it be? It would be what the science of legislation, considered with respect to its form, remains at present.
Were there no architects who could distinguish a dwelling- house from a barn, or a side-wall from a ceiling, what would architects be? They would be what all legislators are at present.
From this very slight and imperfect sketch, may be collec- ted not an answer to the questions in the text but an intima- tion, 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 recommend- ations 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 prohibit- ing the making of the most necessary laws, perhaps even of all laws: quit the letter, and they express no more than if PENAL BRANCH OF JURISPRUDENCE. 877 each man were to say, Your laws shall become ipso facto Chap. void, as often as they contain any thing which is not to my v— ^^_1/ mind.
Of such unhappy attempts, examples may be met with in the legislation of many nations: but in none more frequently than in that newly-created nation, one of the most enlightened, if not the most enlightened, at this day on the globe.
Take for instance, the Declaration of Rights, enacted by XXVII the state of North-Carolina, in convention, in or about the Example.
month of September, 1788, and said to be copied, with a declarations small exception, from one in like manner enacted by the state ° "^ ^^' of Virginia*.
The following, to go no farther, is the first and funda- mental 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 pro- " tecting 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 ian^o, of the enjoyment of liberty, viz. the liberty of paying or not paying as he thinks proper: not to mention • Rccherches sur Les Etats Unis, 8vo. 1788, Vol. I. p. 158.
^78 OF THE LIMITS OF THE 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 protec- *' ting 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 exam- ples, amongst an endless train of similar ones*.
* 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 Constituticms nf the several independent states of America, ^c." Published by order of Congress: Vhiladelphia printed. Be- pinted 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 Massachusets, dated in the years 1779 and 1780, which in its first article is a little similar: also one of the province of Pennsylvatiia, dated between July 15th and September 28iii, in which the similarity is rather more considerable.
Moreover, the famous DeciacrtttoK o/" Independence, published by Congress July 5th, 1776, after a prearabular opening, goes on in these words; " We hold these truths to be self-evident; that all men are created equal: that they are endued by the creator with certain unaligndble i-ights: that amongst those are life, liberty, and the pursuit of happiness.
The Virginian Declaration of Rights is that, it seems, which claims the honour of having served as a model to those of the otlier Provinces; and in respect of the above leading article, at least, to the above-mentioned general Declaration of Independency. See Recherches, &c. I. 1 97.
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 tlie premises the conclusion.
PENAL BRANCH OF JURISPRUDENCE. ^79 Leaninp; on his elbow, in an attitude of profound and Chap.
» XVII solemn meditation, " What a multitude of things there are," ^ ^ ' ^ (exclaimed the dancing-master Marcel,) " in a minuet? " —