78 Appendix.
to be employed, is that styled definition. By definitian seems com- monly to be understood, the exhibition of some word of more exten- sive signification, within the signification of which, that of the word in question is included, — accompanied with the designation of some circumstance, whereby the object designated by it, stands distinguished from all others, that are in use to be designated by that more extensive appellative.
Man (for example) you can thus define: j'ou may do so, by saying that he is an animal; and then stating a quality, by which he is distinguishable from other animals. Here then is a word you can and do thus define. Why? Because, comprehending in its import that of this same word man, stands that same word animal, by which is accordingly designated a genus, of which man is a species. So likewise in regard to operations: for example, that of contracting, in the civil branch of the field of law; aud that of stealing, in the penal branch of that same thorny field. Contracting is one species of operation; stealiiig is another. But this you cannot say in the instance of right, or power, or obligation; for a right is not a species of any tiling: a power is not a species of any thing: an obligation is not a species of any thing.
The objects, of which the words man, animal, substance, are names, are exten* eive sorts or kinds of real entities; the objects, of which, the words right, power, obligation, are names, are not sorts or kinds of any real entities: the objects, of which they are sorts or kinds, are but so many fictitious entities.* * For expounding or explaining the import of any one of these names of ficti< tious entities, the nature of the case affords but one resource; and that is, the finding some class of real entities, which is more or less clearly in view as often as, to the name of a class of fictitious entities, any clear idea stands annext, — and thereupon framing two propositions; one, in which the name of the ficti. tious entity is the leading term; the other, in which the name of a correspond- ing class, either of real entities, or of operations or other motions of real entities, is the leading term: — this last so ordered, that, by being seen to express the same import, it shall explain and make clear the import of the first. This mode of exposition has been termed paruphrasis — paraphrase: giving phrase for phrase.
It is for want of observation made of this distinction, that all attempts to define words of tiie description in question, such as right, power, and oWt- gation, have proved abortive. Of a regular and comprehensive body of law, framed in subservience to what are or ought to be the ends of law, a set of appropriate expositions for words of this description would be an indispensable accompaniment; but, for any such work this is no proper place.
In a Work entitled A Fragment on Government, published by the Author in 1776, without a name, and long since out of print, indication was, for the first lime, given of the utter impossibility of doing that which, in such numbers, men iave been continually supposing themselves to have done. Instead of a supC' riorgmus, what on this occasion has been brought forward has been some term Appendix. 79 III. Enumeratien, Of this word the import is sufficiently clear: it neither requires, nor admits of, fixation or explanation.
Of the occasion in question enumeration may have for its subjects either species or individuals. Of species or modes of operation, in- stances are afforded by the present Bill. They will bfe found in the ensuing example of Exposition, as applied to the words disturbance smd annoyance, which may be seen in black letter in the text of Sec- tion 3. Security <bc, against disturbance, <b-c.
Of the species contained under the given name of Offices, an cnii- meration is proposed by the present Bill, namely, in Section 13, Eligible who, as constituting another portion of matter proper for the Appendix.
NOTE. Note that in the particular case here in question, namely, that of Offices^ &c. of a certain description, considered as having the effect of excluding the pos- sessor from a Seat in the House — it is not altogether clear, that any enumeration of them would, to the purpose in question, be absolutely necessary; definition with exemplification might perhaps suffice. On the other hand, what is certain is — that without definition or explanation — without words of general description — enumeration, in a case such as this, would not suffice, Why? Because if enu- meration were the only mode of designation employed, sinister ingenuity could not fail to set itself to work; under different names it would pour in objects on which it would bestow the desirable quality, free from the undesirable one; in- stead of Offices, it would attacli the emolument to functions, to situations — to trusts — to posts — to any thing: and thus the purpose of the law would be evaded. To establish distinctions where there are no differences, is among the endeavours and the performances — not only of Crown Lawyers, but of every Member of that profession, of which insincerity and artifice are not so much the confessed as the professed attributes.
or other bearing in its import such a resemblance to the term in question, as to be capable of being, on some occasions, with little or no impropriety, employed instead of it. A right is a power — or a power is a riglit — and so forth; shifting off the task of definition, backward and forward, from one word to another; shifting it off thus at each attempt, and never performing it.
But, though a rigtU is not itself a species of any thing, right has divers species perfectly and clearly distinguishable: namely, by means of the benefits, which they respectively confer, and the sanctions, by which they are respectively cre- ated: and for each of these species a separate exposition would be found requisite.
Give us our rights, say the thousands and the millions. Give us our rights they say, and they do well to say so. Yet, of all who say so, not one perhaps can say, not one perhaps ever conceived clearly, what it is he thus calls for — what sort of a thing a riglU is.
80 Appendix.
80 Appendix.
IV. Abbrevialion. To the result designated by this word, tht operations, designated by the three foregoing words, fixation, expla^ nation^ enumeration, may, any of them, be rendered subservient. For these several instruments of perspicuity, let the word, for which they are respectively in demand, present itself in the body of law in question, ever so many times, — the demand, for the sort of eluci- dation respectively afforded by them, may present itself that same number of times.
At the same time, if every time the principal word came to be em- ployed, the adjunct or adjuncts, such as have been deemed necessary as above, were to be attached to it at full length, there is no saying to what enormity of extent the bulk of the body of law would thus be swelled. Happily, to the production of the effect required, no such full length repetitions are necessary. If, to the principal word in question, the adjunct or adjuncts deemed necessary are but annexed the first time it comes to be employed, every succeeding time the word is employed, the purpose of them may in great measure be an- swered, by a bare notice given of their existence.
For a memento of this sort, the typographic art affords an instru- ment as simple as it is efficient— c/i appropriate type: and if, through- out the whole tenor of the work, this type be not applied to any other use than this, any sort of type may serve.
In the text of the present Bill, may be seen an example. In Sec- tion 13, Security, 6-c. against disturbance, 6-c., to the words dis- turbance and annoyance, an elucidation, the tenor of which will be seen presently, is proposed to be applied in the Appendix. Of the aid thus provided for sincere conception, and the check for sinister application, notice is afforded by the type called Black Letter^ in which they are printed.
Thus, and without prejudice to certainly, may the operation of abbreviation be performed, upon a mass of law, by means of iht above described instruments of elucidation — any or all of them.
But it may also be performed without any of them. Examples may be seen in the Introduction to Buhn's Justice. Of the two parts contained in that Introduction, the first has for its title — " Cer- tain abbreviations made use of in this ivork." Of these instances of abbreviations (23 in number) the first is in these words: " 1. The Appendix, B 1 Appendix, B 1 word Justice is always to be understood to mean Juslice of the Peace ^ when not otherwise expressed," In this case, to the principal word Justice is added (we see] an adjunct: and the abbreviation consists in the constant omission of this adjunct. With few, if any excep- tions, in the other twenty-two instances the instrument of abbreviation employed is the same; namely, omission of an adjunct: notice of the omission, once for all, having thus been given.
Of the abbreviation thus afforded, the utility cannot but have been felt by thousands and tens of tliousands. But, that from the above- mentioned instrument^an appropriate type — the service so rendered could not but have received no small increase, will be no less mani- fest. For, among so many readers of that useful and masterly per- formance, scarcely perhaps has there been one, to whose mind the notice so given once for all at the commencement of the work, has, in all its parts, been at all times present. By an appropriate type, it would, on each occasion, have been revived. By the appropriate type, true it is, that the particular nature of the adjunct omitted would not have been expressed. But a notice which, on every oc- casion, would have thus been given, is — that to the word or phrase in question, an elucidation would be found provided, in some shape or other: and in what particular shape, is a point, which the nature of the context would not often leave exposed to doubt.
Abbreviation is not the only useful purpose, to which the separation thus proposed between text and authoritative comment is capable of being made subservient. Another is— the saving from the imputation of frivolousness, or even of ridiculousness, this or that matter of de- tail, the insertion of which may, by an attentive consideration of the subject, have been represented to the draughtsmen as indispensable. In a case of this sort, if he declines employing the expedient, his work will be liable to find itself in a dilemma, from which it will not be easy for him to disengage it without injury to it. If he omits the ob- noxious matter altogether, he leaves the door open to wilful misre- presentation, to misapplication, and arbitrary rule: if he inserts it, he gives disgust to the thoughtless many, to whom the sensation of the moment is every thing, the future nothing — and who either can not or will not see, that by those who have the power, misinterpretation, wherever, in addition to a motive, any the slightest pretext can be 82 Appendix.
82 Appendix.
found for it, will be sure to be practised. At the same time, by the addition which it can not but make to the bulk of the mass of law, the subordinate species of matter, if not detached from that to which it is subordinate, will, in proportion to its bulk, contribute to render the whole mass to such a degree incomprehensible, that while ineffi- cient as a protection, it will be efficient only as a snare.
True it is, that whether interwoven with the main body or de- tached from it, the matter of elucidation will not the less be the le- gislator's work. But in the main body it would present itself to all readers and on all occasions: in the Appendix it would as it were withdraw itself from the attention of readers in general, reserving it- self to be consulted only by this or that particular class of readers, and by them only eventually, in case that by this or that event a call for their applying their attention to it should be made: and, in this case, as the occasion will place the importance of the explanation in its true light, it will thus be saved from the imputation of frivolous- ness.
V. Forms of Instruments. Of this species of matter, the form of a Vole-making Certificate in Section 2, and the form of a Recommen- datorj/ Certificate in Section 3, afford so many examples; for matter of this sort, the Appendix has just been spoken of as being, generally speaking, a proper place. That it would have been such in the pre- sent instance will scarcely appear disputable. But, on the present occasion, so paramount was the importance of these two instruments— so much of the whole plan do they give. intimation of — that, though the Appendix could scarcely be denied to be a proper place, the Main body of the proposed Act ^YOuld, it was thought, be deemed the more proper place.
When the destination of this receptacle — the Appendix, is thus settled and determined — the structure of the work of which it forms a part will, in some sort be to be directed by it. To the Appendix may be referred whatsoever matters appear capable of being thus disposed of, consistently with the grand object — namely, the implanting and keeping, at all times, in the mind of the subject-citizen such part of the rule of action — such part and such only — as, according to his situation in rife, he may have need of for his guidance at all times: reserving for other parts those particulars which it will not be necessary for him lo Appendix. 83 Appendix. 83 form any detailed conception oF, till a particular state of things, calling for application to be made to that part of the law, has taken place. Thus, whatever concerns this or that species of contract, a man cannot have any need to trouble himself with, till either he has entered into a contract of that sort, or has in contemplation the entering into it, or has need to enter into it. But this refers to another division of the entire body of the law: namely, the division into the General Code and the collection of Particular codes; the General Code containing those parts of the rule of action which all persons have need to be informed of; the Particular Codes, those parts only which so many particular classes of persons have respectively need to be informed of.
As in the present proposed Act, so in any other Act, and in the whole body of the law, if any such work were any where to come into existence, here then would be two distinguishable parts — Main body and Appendix. In the Appendix would be included the Elucidations^ the Abbreviations., and the Forms of Instruments. To this part might also be consigned the Rationale, or collection of Rea,sons, supposing provision made of an instrument of elucidation and justification at once so useful, and so difficult to frame. I say the Rationale; for to this place it might be posted off, except in so far as, in thisor that instance, for the more immediate perception of this or that reason, it were thought fit, either to interweave it with the body of the Article to which it belonged (a mode frequently pursued in an Act of Parliament, and pursued in several places of the present Bill), or, in the form of a Note, to subjoin it, in the margin, at the bottom of the text.* * In its application to the penal branch of law, this mode stands exemplified in the first of those works of tlie Author's on legislation, which were edited in French by il7r. Dumont. In this way a quantity of letter-press, not larger than what has been seen contained in an Almanack, might supply a man with as large a quantity of legal information, as he would have need to carry in his head, with the addition of appropriate indication, sufficient to enable him upon occasion to present to his mind, in time for nse, whatever was not contained in it.
In every such abridgment, it being as truly the work of the legislator as the work at large of which it is an abridgment, every man would of course behold a rule of action, on which he could repose an equally safe confidence.
I cannot let this occasion pass without observing, that an abridgment thus made is the only sort of abridgment on which any such confidence can be placed. On the part of any iincommissioiml abridger, no degree of ability can have any 84 Appendix.
Taken together, Main body and Appendix would be the entire Code. Separated from the Appendix, the Main body would be a sort of Abridgment of the entire Code. Sanctioned by the same hand as that from which the Appendix received its sanction, the abridgment thus made would be an aulhoritative one.
Here follows the portion of c.v/)05i7on/ matter, proposed to be inserted in the Appendix for the exposition of the words disturbance and annoy- ance in section 13 of the text.
[Disturbance- — Annoyance'] Art. 1. To this purpose, it matters not in what shape, and by what means, the annoyance be produced, if among its effects be that of causing disturbance to the proceedings of the House.
Art. 2. It matters not to what sense^ or whdit faculty ^ the annoy- ance has been applied: as for example — 1. To the sense of hearing; by noise, whereby Members are pre- vented from hearing any thing spoken or read: for instance, by un- timely vociferation, by stamping or scraping with the feet; or even by coughing or blowing of the nose, if performed, not through necessity, but for this or any other forbidden purpose.
2. To the sense oi sight; for example, by preventing any Member or Members from having the Speaker of the House in view, or the Speaker from having any other Member in view; or by repairing to the House, with the visible marks or other symptoms of any noisome disease.
3. To the sense oi smell; by uncleanliness in any shape.
4. To keallh in general: by a Member repairing to the House at a time when he is labouring under any infectious disease.
5. By personal injury in any shape, done, — or attempted, or intend* such effect as that of giving to his work a just title to any such confidence. In the original, suppose imperfections iu any abundance; in the abridgment, none. The greater the nnmber of these imperfections, the more delusive and dange- rous to trust to will the abridgment be. For it is from what the original is, not from what it ought to have been, that the interpretation put upon it by the Judge will be deduced. Unless indeed it should happen to suit his private views to interpret it according to what it ought to have been. For wherever, through the medium of that which is, that which ought to have been and is not is disceru- able, the Judge is upon velvet: with hands decorated with sham chains, he de- cides this way or that way, whichever he finds most agreeable and convenient.
/ Appendix. 85 ed, or proposed to be done, — to any Member, or any Officer of the House, or to any other person present.
6. To the tranquillity of the Assembly, by words or deportment, threatening personal injury, in any shape, — to be done, whether to the whole Assembly present, to any particular Member, or other person present. Here ends the Explanation.
In the particular case here exemplified, supposing that, as here, ia the designation of the proposed Ground for exclusion, words such as *^ annoyance" and *^ disturbance" (the words employed in the Bill) were employed, I durst not, without very particular exposition, such as that here proposed to be given, depend upon them as sufficient to secure the exclusion of sinister interpretation: in particular, on the part of Honourable House, even under any Constitution that would be given to it. In the reign of Charles the Second it was, that Honour- able House concurred in an Act (18. C. 11. c 2, s. 1.) declaring the importation of Cattle into England from Ireland ^^ a nuisance," and punishing it as a crime. Were it not for the check, applied by speci- fications such as the above, — with less violent torture of words might the House, at any time, have applied that term of reproach, to the act of any Member, who, rendered obnoxious to Noble Lords and Honourable Gentlemen by attachment to the cause of the people, had, by some trifling indecorum, in language or deportment, afforded a pretence. Not many years ago, a Member, whose language had long been suffi- ciently indecorous, was stopped in the very act of offering violence to the person of the Speaker. Being on the right side in politics, and violent on that side — his transgression was regarded with the indulgence that might have been expected. But had Home Tooke been the man — Home Tooke, for dread of whom, after the House had, for so many ages, continued open to Clergymen without inconvenience or com- plaint, an exclusion was put upon the whole Order in the lump- mercy might not quite so readily have taken the place of justice.
THE END.
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