OP LAW. 193 circumstances, to which it owed its rise, and by which it was modified while under deliberation. To understand the weight and interpretation that will be allowed to it in a court of justice, he must have studied the whole collection of records, decisions and precedents. Law was originally devised, that ordinary men might know what they had to expect; and there is not, at this day, a lawyer existing in Great Britain, vain-glorio\is enough to pretend that he has mastered the code. Nor must it be forgotten that time and industry, even were they infinite, would not suiTice. It is a labyrinth without end; it is a mass of contradictions that cannot be disentangled. Study will enable the lawyer to find in it plausible, perhaps unanswerable arguments for any side of almost any question; but it would argue the utmost folly to suppose, that the study of law can lead to knowledge and certainty.
A further consideration that will demonstrate the absurdity of law in its most general acceptation, is, that it is of the nature of prophecy. Its task is to describe what will be the actions of mankind, and to dictate decisions respecting them. Its merits, in tliis respect, have already been decided under the head of pro- mises.* The language of such a procedure is, " We are so wise, that we can draw no additional knowledge from circumstances as they occur; and we pledge ourselves that, if it be otherwise, the additional knowledge we acquire, shall produce no effect upon our conduct." It is proper to observe, thai this subject of law may be considered, in some respects, as more properly belonging to the topic of the preceding book. Law tends, no less than creeds, catechisms and tests, to fix the human mind in a stagnant condition, and to substitute a principle of permanence in the room of that unceasing progi'ess which is the only salubrious element of mind. All the arguments therefore which were em- ployed upon that occasion, may be applied to the subject now under consideration.
The fable of Procrustes presents us with a fixint shadow of the pei-petual effort of law. In defiance of the great principle of natural philosophy, that there are not so much as two atoms of matter of the same form, through the whole universe, it endea- vours to reduce the actions of men, which are composed of a thousand evanescent elements, to one standard. We have already seen the tendency of this endeavour in the article of murder.f It was in the contemplation of this system of jurisprudence, that the strange maxim was invented, that " strict justice would often prove the highest injustice."! There is no more real justice in endeavouring to reduce the actions of men into classes, than there was in the scheme to which we have just alluded, of reducing all men to the same stature. If, on the contrary, justice be a result, flowing from the contemplation of all the circumstances of each individual case, if the only criterion of justice be general utility, • Book III., Chap. III. t Chnp. IV. t Summwn jus summa injuria. 28. — VOL. II. o 1 94 OP LAW.
the inevitable consequence is, that, the more Ave have of justice, the more we shall have of truth, virtue and happiness.
From all these considerations we can scarcely hesitate to con- clude universally, that law is an institution of the most pernicious tendency.
The subject will receive some additional elucidation, if ^ye con- sider the perniciousness of law, in its immediate relation to those •who practise it. If there ought to be no such thing as law, the profession of a lawyer is no doubt entitled to our disapprobation. A lawyer can scarcely fail to be a dishonest man. This is less a subject for censure, than for regret. Men are, in an eminent degree, the creatures of the circumstances under which they are placed. He that is habitually goaded by the incentives of vice will not fail to be vicious. He that is perpetually conversant in quibbles, false colours and sophistry, cannot equally cultivate the generous emotions of tlie soul, and the nice discernment of recti- tude. If a single individual can be found who is but superficially tainted with the contagion, how many men on the other hand, in ■whom there appeared a promise of the sublimest virtues, have by this trade been rendered indifferent to consistency, or accessible to a bribe? Be it observed, that these remarks apply principally to men eminent or successful in their profession. He that enters into an employment, carelessly, and by way of amusement, is much less under its influence (though even he will not escape,) than he that enters into it with ardoiu: and devotion.
Let us however suppose, a circumstance which is perhaps alto- gether impossible, that a man shall be a perfectly honest lawyer. He is determined to plead no cause, that he does not believe to be just, and to employ no argument that he does not apprehend to be solid. He designs, as far as his sphere extends, to strip law of its ambiguities, and to speak the manly language of reason. This man is, no doubt, highly respectable, so far as relates to him- self; but it may be questioned whether he be not a more perni- cious member of society, than the dishonest la\\7er. The hopes of mankind in relation to their future progress, depend upon tlieir observing the genuine effects of erroneous institutions. But this man is employed in softening and masking these effects. His conduct has a direct tendency to postpone the reign of sound policy, and to render mankind tranquil in the midst of imperfec- tion and ignorance.
What is here stated, however, in favour of the dishonest lawyer, like that sUited in favour of an imbecile monarch,* should be con- sidered as advanced in the way of conjecture only. As there is seme pain, which is requisite as the means of an over-balance of pleasure, so there may, in a few extraordinary uistances, be some vice, (understanding by vice, evil intention or rooted depravity) which is productive of the effects of virtue. In questions of this kind, however, it becomes us to be more than usually scrupulous • Book v.. Chap. VII.
OF LAW. 195 and guarded. It is of the most pernicious consequence for us to confound the distinctions of virtue and vice. It can scarcely be considered as the part of a philanthropist, to rejoice in the depra- vity of others. It is safer for us, in almost every imaginable instance, to regard "every departure from enormous vice, as so much gained to the cause of general happiness."* The only principle which can be substituted in the room of law, is that of reason exercising an uncontrolled jurisdiction upon tlie circumstances of the case. To this principle no objection can arise on the score of wisdom. It is not to be supposed that there are not men now existing, whose intellectual accomplishments rise to the level of law. Law we sometimes call the wisdom of our ancestors. But this is a strange imposition. It was as fre- quently the dictate of their passion, of timidity, jealousy, a mono- polising spirit, and a lust of power that knew no bounds. Are we not obliged perpetually to revise and remodel tliis misnamed wisdom of our ancestors? to correct it by a detection of tlieir ignorance, and a censm-e of their intolerance? But if men can be found among us, whose wisdom is equal to the wisdom of law, it will scarcely be maintained, that the truths tliey have to com- municate will be the worse, for having no authority, but that which they derive from the reasons that support them.
It may however be alleged that, " if there be little difficulty in securing a current portion of wisdom, there may nevertheless be something to be feared from the passions of men. Law may be supposed to have been constructed in the tranquil serenity of the soul, a suitable monitor, to check the inflamed mind, with which the recent memory of ills might induce us to proceed to the in- fliction of punishment." This is the most considerable argument that can be adduced in favour of the prevailing system, and therefore deserves a mature examination.
The true answer to this objection is, that nothing can be im- proved but in conformity to its nature. If we consult for the wel- fare of man, we must bear in mind the structure of man. It must be admitted that we are imperfect, ignorant, the slaves of appear- ances. These defects can be removed by no indirect method, but only by the introduction of knowledge. A. specimen of the indirect method we have in the doctrine of spiritual infallibility. It was obsen-ed that men were liable to error, to dispute for ever "without coming to a decision, and to mistake in their most im- portant interests. What was wanting, was supposed to be a criterion and a judge of controversies. What was attempted, •was to indue truth with a visible form, and then repair to the oracle we had erected.
The case respecting law is parallel to this. Men were aware of the deceitfulness of appearances, and they sought a talisman to guard them from imposition. Suppose I were to determine, at the commencement of every day, upon a certain code of princi- • Vol. I., Book IV., Chap. XI.
1 96 OF LAW.
pies, to which I would conform the conduct of the day; and, at the commencement of every year, the conduct of the year. Sup- pose I were to determine that no circumstances should be allow- •ed, by the light they aJfforded, to modify my conduct, lest I should become the dupe of appearance, and the slave of passion. This is a just and accurate image of every system of permanence. Such systems are formed upon the idea of stopping the perpetual motion of the machine, lest it should sometimes fall into disorder.
This consideration must sufficiently persuade an impartial mind that, whatever inconveniences may arise from the passions of men, the introduction of fixed laws cannot be the genuine remedy. Let us consider what would be the operation and pro- gressive state of these passions, provided men were trusted to the guidance of their own discretion. Such is the discipline that a reasonable state of society employs with respect to man in his individual capacity:* why should it not be equally valid with respect to men acting in a collective capacity? Inexperience and zeal would prompt me to restrain my neighbour whenever he is acting wrong, and, by penalties and inconveniences designedly interposed, to cure him of his errors. But reason evinces the folly of this proceeding, and teaches me that, if he be not accus- tomed to depend upon the energies of intellect, he will never rise to tlie dignity of a rational being. As long as a man is held in the trammels of obedience, and habituated to look to some foreign guidance for the direction of his conduct, his understand- ing and the vigour of his mind will sleep. Do I desire to raise him to the energy of which he is capable? I must teach him to feel himself, to bow to no authority, to examine the principles he entertains, and render to his mind the reason of his conduct.
The habits which are tlius salutary to the individual, will be equally salutary in the transactions of communities. Men are weak at present, because they have always been told they are weak, and must not be trusted with themselves. Take them out of their shackles, bid them enquire, reason and judge, and you will soon find them very different beings. Tell them that they have passions, are occasionally hasty, intemperate and injurious, but they must be trusted with themselves. Tell them that the mountains of parchment in which they have been hitherto in- trenched, are fit only to impose upon ages of superstition and ignorance; that henceforth we will have no dependence but upon •tlieir spontaneous justice; that, if their passions be gigantic, they must rise with gigantic energy to subdue them; that, if their ^decrees be iniquitous, the iniquity shall be all their own. The effect of this disposition of things will soon be visible; mind will rise to the level of its situation; juries and umpires will be pene- trated with the magnitude of the trust reposed in them.
It may be no uninstructive spectacle, to survey the progressive establishment of justice in the state of things which is here recom- OP LAW. 197 mended. At first, it may be, a few decisions will be made un- commonly absurd or atrocious. But the authors of these decisions will be confounded, with the unpopularity and disgrace in which they have involved themselves. In reality, whatever was the original source of law, it soon became cherished as a cloak for oppression. Its obscurity was of use to mislead the inquisitive eye of the sufferer. Its antiquity served to divert a considerable part of the odium, from the perpetrator of the injustice, to the author of the law; and, still more, to disarm that odium by the influence of superstitious awe. It was well knovm that un- varnished, barefaced oppression could not fail to be the victim of its own operations.
To this statement it may indeed be objected, '"'that bodies of men have often been found callous to censure, and that the dis- grace, being amicably divided, is intolerable to none." In this observation there is considerable force, but it is inapplicable to the present argument. To this species of abuse one of two things is indispensibly necessary, either numbers or secrecy. To this abuse, therefore, it will be a sufficient remedy, that each jurisdic- tion be considerably limited, and all transactions conducted in an open and explicit manner. — To proceed.
The juridical decisions that were made immediately after the abolition of law, would differ little from those during its empire. They would be the decisions of prejudice and habit. But habit, having lost the centre about which it revolved, would diminish in tlie regularity of its operations. Those to whom the arbitration of any question was intrusted, would frequently recollect, that the whole case was committed to their deliberation; and they could not fail occasionally to examine themselves, respecting the reason of those principles which had hitherto passed uncon- troverted. Their understandings would grow enlarged, in pro- portion as they felt the importance of their trust, and the unbounded freedom of their investigation. Here, then, would commence an auspicious order of things, of which no understand- ing of man at present in existence can foretel the result, the dethronement of implicit faith, and the inauguration of reason and justice.
Some of the conclusions, of which tliis state of things would be the harbinger, have been already seen in the judgment that avouM be made of offences against the community.* Offences arguing a boundless variety in the depravity from which they sprung, would no longer be confounded under some general name. Juries would grow as perspicacious in distinguishing, as they are now indiscriminate in confounding, the merit of actions and cha- racters.
The effects of the abolition of law, as it respects the article of property, would not be less auspicious. Nothing can be more ■worthy of regret, than the manner in which property is at * Chap. IV. p. 168 198 OF PARDONS.
present administered, so far as relates to courts of justice. The doubtfulness of titles, the different measures of legislation as they relate to different classes of property, the tediousness of suits, and the remoyal of causes by appeal from court to court, are a per- petual round of artifice and chicane to one part of the community, and of anguish and misery to another. Who can describe the baffled hopes, the fruitless years of expectation, which thus con- sume away the strength and the lives of numerous individuals? In vain is the intention of a testator, while tlie disputes between the legal and the testamentary heir, or a mere quibble upon the phraseology of the bequest, shall supply food for endless con- troversy. In vain shall be all the assurances I can heap together for the establishment of my right, since the obscurity of records, and the complexity of law, will, almost in all cases, enable an in- genious man, who is at the same time a rich one, to dispute my tenure. The imbecility of law is strikingly illustrated by the vulgar maxim of the importance of possession. Possession could not be thus advantageous, were it not for the opportunity that law affords for procrastination and evasion. Property could not be thus disputable, were the persons who are called upon to decide concerning it, left to the direction of their own under- standing. The contention of opposing claims arises more from the jargon in which these claims are recorded, than from the com- plexity of the subject to which they relate. The intention of a Testator is much more easily settled, than the quibbles to which the expression of that intention may be subjected. Those who were appointed for the decision of suits, would not indeed be such gainers, under the system here delineated, as at present; but every other description of persons that were interested in questions of property, would, no doubt, find their advantage.
An observation which cannot have escaped the reader in the perusal of this chapter, is, that law is merely relative to the exer- cise of political force, and must perish when the necessity for that force cease?, if the influence of truth do not still sooner extirpate it from the practice of mankind* CHAP. IX.
OF PAKDONS.
Their absurdity. — Their origin. — Their abuses. — Their arbitrary character. — Destructive of morality.
There is one other topic which belongs to the subject of the pre- sent book, but which may be dismissed in a very few words, because, though it has unhappily been, in almost all cases, OF PARDOKS. 199 neglected in practice, it is a point that seems to admit of uncom- monly simple and irresistible evidence: I mean the topic of pardons.
The very word, to a reflecting mind, is fraught with absurdity. " What is the rule that ought, in all cases, to direct my conduct?'* Surely justice; understanding by justice the greatest utility of the whole mass of beings that may be influenced by my conduct. " What, then, is clemency?" It can be nothing but the pitiable egotism of him who imagines he can do something better thaa justice. " Is it right that I should suiFer constraint for a certain offence?" The reasonableness of my suffering, must be founded in its consonance with tlie general welfare. He, therefore, that pardons me, iniquitously prefers the supposed interest of an indi- vidual, and utterly neglects what he owes to the whole. He bestows that which I ought not to receive, and which he has no right to give. "Is it right, on the contrary, that I should not undergo the suffering in question? Will he, by rescuing me from suffering, confer a benefit on me, and inflict no injury on others?'* He will then be a notorious delinquent, if he allow me to suffer. There is indeed a considerable defect in tliis last supposition. If, Avhile he benefits me, he inflicts no injury upon others, he is infallibly performing a public service. If I suffered, in the arbitrary manner which the supposition includes, tlie public would sustain an unquestionable injury in the injustice that was perpe- trated. And yet the man who prevents this odious injustice, has been accustomed to arrogate to himself the attribute of clement, and the apparently sublime, but, in reality, tyrannical, name of forgiveness. For, if he do more than has been here described, instead of glory, he ought to take shame to himself, as an enemy to human kind. If every action, and especially every action in which the happiness of a rational being is concerned, be suscepti- ble of a certain rule, then caprice mu5t be in all cases excluded: there civn be no action, which, if I neglect, I shall have discharged my duty, and, if I perform, I shall be entitled to applause.
The pernicious effect of the system of pardons, is peculiarly glaring. It was first invented as the miserable supplement to a sanguinary code, the atrociousness of which was so conspicuous, that its ministers either dreaded the resistance of the people, if it were indiscriminately executed, or themselves shrunk with un- conquerable repugnance from the devastation it commanded. The system of pardons obviously associates with the system of law; for, though we may call every case, for instance, in which one man occasions the death of another, by the name of murder, yet tlie injustice would be too great to apply to all cases the same treatment. Define murder as accurately as we please, the same consequence, the same disparity of cases, will obtrude itself. It is uecessarj', therefore, to have a court of reason, to which the decisions of a court of law shall_be brought for revisal.
But liow is this coiurt, inexpressibly more important than the 200 OF PARDOXS.
otlier, to "be constituted? Here lies the essence of the matter; tlie rest is form. A jury is impannelled, to tell you tlie generical name of the action; a judge presides, to read out of the volume of the law the prescription annexed to that name; last of all, comes the court of inquiry, which is to decide whether the pre- scription of the dispensatory is suitable to the circumstances of this particular case. This authority we are accustomed to invest, in the first instance with the judge, and in the last resort with the king in comicil. Now, putting aside the propriety or impropriety of this particular selection, there is one grievous abuse which ought to sk-ike the most superficial observer. These persons, with whom the principal trust is reposed, consider their functions in this respect, as a matter purely incidental, exercise them with supineness, and, in many instances, Avith the most scanty mate- rials to guide their judgment. This grows, in a considerable degree, out of the very name of pardon, by which m'c are accustomed to understand, a work of supererogatory benevo- lence.
From the manner in which pardons are dispensed, inevitably flows the uncertainty of punishment. It is too evident that punishment is inflicted by no certain rules, and therefore creates 110 uniformity of expectation. Uniformity of trentment, and con- stancy of expectation, form the sole basis of a genuine morality. In a just form of society, this would never go beyond the sober expression of those sentiments of approbation or disapprobation, ■with which different modes of conduct inevitably impress us. But, if we at present exceed this line, it is surely an execrable refinement of injustice, that should exhibit the perpetual menace of sufi'ering, unaccompanied with any certain rule foretelling its application. Not more than one third of the offenders, whom the law condemns to death in this metropolis, are made to sufi'er the punishment that is awarded. Is it possible that each off"cnder should not flatter himself that he shall be among the number that escapes? Such a system, to speak it truly, is a lottery of death, in which each man draws his ticket for reprieve or execution, as indefinable accidents shall decide.
It may be asked whether " the abolition of law would not pro- duce equal uncertainty?" By no means. The principles of king and council, in such cases, are very little understood, either by themselves or others. The principles of a jury of his neighbours, commissioned to pronounce upon the whole of the case, the criminal easily guesses. He has only to appeal to his own senti- ments and experience. Reason is a thousand times more explicit and intelligible than law; and, when we were accustomed to consult her, tlie certainty of her decisions would be such, as men, practised in our present courts, are totally unable to conceive.
Another important consequence grows out of the system of pardons. A system of pardons is a system of unmitigated slavery. I am taught to expect a certain desirable event, from what?
OF PARDOKS. 201 From the clemency, the uncontroled, unmerited kindness of a fellow mortal. Can any lesson be more degrading? The pusil- lanimous servility of the man, -vvho devotes himself with everlast- ing obsequiousness to another, because that other, having begun to be unjust, relents in his career; the ardour with which he confesses the equity of his sentence and the enormity of his deserts, will constitute a tale, that future ages will find it difficult to understand.
What are the sentiments in this respect that are alone worthy of a rational being? Give me that, and that only, which without injustice you cannot refuse. More than justice it would be dis- ?:raceful for me to ask, and for you to bestow. I stand upon the foundation of right. This is a title, which brute force may refuse to acknowledge, but which all the force in the world cannot annihilate. By resisting this plea, you may prove your- self unjust; but, in yielding to it, you grant me but my due. If, all things considered"^ I be the fit subject of a benefit, the benefit is merited; merit, in any other sense, is contradictory and absurd. If you bestow iipon me unmerited advantage, you are a recreant from the general good. I may be base enough to thank you; but, if I were virtuous, I should condemn you.