2. Jurisprudence, its branches.

XXI. Jurisprudence is a fictitious entity: nor can any meaning be found for the word, but by placing it in company with some word that shall be significative of a real entity. To know what is meant by jurisprudence, we must know, for example, what is meant by a book of jurisprudence. A book of jurisprudence can have but one or the other of two objects: 1. To ascertain what the law is: 2. to ascertain what it ought to be. In the former case it may be styled a book of expositoryjurisprudence; in the latter, a book of censorialjurisprudence: or, in other words, a book on the art of legislation.

XXII. A book of expository jurisprudence, is either authoritative or unauthoritative. It is styled authoritative, when it is composed by him who, by representing the state of the law to be so and so, causeth it so to be; that is, of the legislator himself: unauthoritative, when it is the work of any other person at large.

XXIII. Now law, or the law, taken indefinitely, is an abstract and collective term; which, when it means any thing, can mean neither more nor less than the sum total of a number of individual laws taken together. It follows, that of whatever other modifications the subject of a book of jurisprudence is susceptible, they must all of them be taken from some circumstance or other of which such individual laws, or the assemblages into which they may be sorted, are susceptible. The circumstances that have given rise to the principal branches of jurisprudence we are wont to hear of, seem to be as follows: 1. The extent of the laws in question in point of dominion. 2. The political quality of the persons whose conduct they undertake to regulate. 3. The time of their being in force. 4. The manner in which they are expressed. 5. The concern which they have with the article of punishment.

XXIV. In the first place, in point of extent, what is delivered concerning the laws in question, may have reference either to the laws of such or such a nation or nations in particular, or to the laws of all nations whatsoever: in the first case, the book may be said to relate to local, in the other, to universal jurisprudence.

Now of the infinite variety of nations there are upon the earth, there are no two which agree exactly in their laws: certainly not in the whole: perhaps not even in any single article: and let them agree today, they would disagree to-morrow. This is evident enough with regard to the substance of the laws: and it would be still more extraordinary if they agreed in point of form; that is, if they were conceived in precisely the same strings of words. What is more, as the languages of nations are commonly different, as well as their laws, it is seldom that, strictly speaking, they have so much as a single word in common. However, among the words that are appropriated to the subject of law, there are some that in all languages are pretty exactly correspondent to one another: which comes to the same thing nearly as if they were the same. Of this stamp, for example, are those which correspond to the words power, right, obligation, liberty, and many others.

It follows, that if there are any books which can, properly speaking, be styled books of universal jurisprudence, they must be looked for within very narrow limits. Among such as are expository, there can be none that are authoritative: nor even, as far as the substance of the laws is concerned, any that are unauthoritative. To be susceptible of an universal application, all that a book of the expository kind can have to treat of, is the import of words: to be, strictly speaking, universal, it must confine itself to terminology. Accordingly the definitions which there has been occasion here and there to intersperse in the course of the present work, and particularly the definition hereafter given of the word law, may be considered as matter belonging to the head of universal jurisprudence. Thus far in strictness of speech: though in point of usage, where a man, in laying down what he apprehends to be the law, extends his views to a few of the nations with which his own is most connected, it is common enough to consider what he writes as relating to universal jurisprudence.

It is in the censorial line that there is the greatest room for disquisitions that apply to the circumstances of all nations alike: and in this line what regards the substance of the laws in question is as susceptible of an universal application, as what regards the words. That the laws of all nations, or even of any two nations, should coincide in all points, would be as ineligible as it is impossible: some leading points, however, there seem to be, in respect of which the laws of all civilized nations might, without inconvenience, be the same. To mark out some of these points will, as far as it goes, be the business of the body of this work.

XXV. In the second place, with regard to the political quality of the persons whose conduct is the object of the law. These may, on any given occasion, be considered either as members of the same state, or as members of different states: in the first ease, the law may be referred to the head of internal, in the second case, to that of international jurisprudence.

Now as to any transactions which may take place between individuals who are subjects of different states, these are regulated by the internal laws, and decided upon by the internal tribunals, of the one or the other of those states: the case is the same where the sovereign of the one has any immediate transactions with a private member of the other: the sovereign reducing himself, pro re natâ, to the condition of a private person, as often as he submits his cause to either tribunal; whether by claiming a benefit, or defending himself against a burthen. There remain then the mutual transactions between sovereigns, as such, for the subject of that branch of jurisprudence which may be properly and exclusively termed international.

With what degree of propriety rules for the conduct of persons of this description can come under the appellation of laws, is a question that must rest till the nature of the thing called a law shall have been more particularly unfolded.

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

XXVI. Internal jurisprudence, again, may either concern all the members of a state indiscriminately, or such of them only as are connected in the way of residence, or otherwise, with a particular district. Jurisprudence is accordingly sometimes distinguished into national and provincial. But as the epithet provincial is hardly applicable to districts so small as many of those which have laws of their own are wont to be, such as towns, parishes, and manors; the term local (where universal jurisprudence is plainly out of the question) or the term particular, though this latter is not very characteristic, might either of them be more commodious.

XXVII. Thirdly, with respect to time. In a work of the expository kind, the laws that are in question may either be such as are still in force at the time when the book is writing, or such as have ceased to be in force. In the latter case the subject of it might be termed ancient; in the former, present or living jurisprudence: that is, if the substantive jurisprudence, and no other, must at any rate be employed, and that with an epithet in both cases. But the truth is, that a book of the former kind is rather a book of history than a book of jurisprudence; and, if the word jurisprudence be expressive of the subject, it is only with some such words as history or antiquities prefixed. And as the laws which are any where in question are supposed, if nothing appears to the contrary, to be those which are in force, no such epithet as that of present or living commonly appears.

Where a book is so circumstanced, that the laws which form the subject of it, though in force at the time of its being written, are in force no longer, that book is neither a book of living jurisprudence, nor a book on the history of jurisprudence: it is no longer the former, and it never was the latter. It is evident that, owing to the changes which from time to time must take place, in a greater or less degree, in every body of laws, every book of jurisprudence, which is of an expository nature, must in the course of a few years, come to partake more or less of this condition.

The most common and most useful object of a history of jurisprudence, is to exhibit the circumstances that have attended the establishment of laws actually in force. But the exposition of the dead laws which have been superseded, is inseparably interwoven with that of the living ones which have superseded them. The great use of both these branches of science, is to furnish examples for the art of legislation.

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

As to the difference between these two branches (which respects only the article of form or expression) it cannot properly be made appear till some progress has been made in the definition of a law.

XXIX. Lastly, The most intricate distinction of all, and that which comes most frequently on the carpet, is that which is made between the civil branch of jurisprudence and the penal, which latter is wont, in certain circumstances, to receive the name of criminal.

What is a penal code of laws? What a civil code? Of what nature are their contents? Is it that there are two sorts of laws, the one penal the other civil, so that the laws in a penal code are all penal laws, while the laws in a civil code are all civil laws? Or is it, that in every law there is some matter which is of a penal nature, and which therefore belongs to the penal code; and at the same time other matter which is of a civil nature, and which therefore belongs to the civil code? Or is it, that some laws belong to one code or the other exclusively, while others are divided between the two? To answer these questions in any manner that shall be tolerably satisfactory, it will be necessary to ascertain what a law is; meaning one entire but single law: and what are the parts into which a law, as such, is capable of being distinguished: or, in other words, to ascertain what the properties are that are to be found in every object which can with propriety receive the appellation of a law. This then will be the business of the third and fourth sections: what concerns the import of the word criminal, as applied to law, will be discussed separately in the fifth.

Here ends the original work, in the state into which it was brought in 5 November, 1780. What follows is now added in January, 1789.

The third, fourth, and fifth sections intended, as expressed in the text, to have been added to this chapter, will not here, nor now be given; because to give them in a manner tolerably complete and satisfactory, might require a considerable volume. This volume will form a work of itself, closing the series of works mentioned in the preface.

What follows here may serve to give a slight intimation of the nature of the task, which such a work will have to achieve: it will at the same time furnish, not any thing like a satisfactory answer to the questions mentioned in the text, but a slight and general indication of the course to be taken for giving them such an answer.

What is a law? What the parts of a law? The subject of these questions it is to be observed, is the logical, the ideal, the intellectual whole not the physical one: the law, and not the statute. An enquiry, directed to the latter sort of object, could neither admit of difficulty nor afford instruction. In this sense whatever is given for law by the person or persons recognized as possessing the power of making laws, is law. The Metamorphoses of Ovid, if thus given, would be law. So much as was embraced by one and the same act of authentication, so much as received the touch of the sceptre at one stroke, is one law: a whole law, and nothing more. A statute of George II. made to substitute an or instead of an and in a former statute is a complete law; a statute containing an entire body of laws, perfect in all its parts, would not be more so. By the word law then, as often as it occurs in the succeeding pages is meant that ideal object, of which the part, the whole, or the multiple, or an assemblage of parts, wholes, and multiples mixed together, is exhibited by a statute; not the statute which exhibits them.

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

A coercive law is a command.

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, sofar as it stands distinguished from either a coercive or a discoercive law, is not properly speaking a law. It is not the expression of an act of the will exercised at the time: it is a mere notification of the existence of a law, either of the coercive or the discoercive kind, as already subsisting: of the existence of some document expressive of some act of the will, exercised, not at the time, but at some former period. If it does any thing more than give information of this fact, viz. of the prior existence of a law of either the coercive or the discoercive kind, it ceases pro tanto to be what is meant by a declaratory law, and assuming either the coercive or the discoercive quality.

Every coercive law creates an offence, that is, converts an act of some sort, or other into an offence. It is only by so doing that it can impose obligation, that it can produce coercion.

A law confining itself to the creation of an offence, and a law commanding a punishment to be administered in case of the commission of such an offence, are two distinct laws, not parts (as they seem to have been generally accounted hitherto) of one and the same law. The acts they command are altogether different; the persons they are addressed to are altogether different. Instance, Let no man steal; and, Let the judge cause whoever is convicted of stealing to be hanged.

They might be styled, the former, a simply imperative law; the other a punitory: but the punitory, if it commands the punishment to be inflicted, and does not merely permit it, is as truly imperative as the other: only it is punitory besides, which the other is not.

A law of the discoercive kind, considered in itself, can have no punitory law belonging to it: to receive the assistance and support of a punitory in law, it must flrst receive that of a simply imperative or coercive law, and it is to this latter that the punitory law will attach itself, and not to the discoercive one. Example, discoercive law. The sheriff has power to hang all such as the judge, proceeding in due course of law, shall order him to hang. Example of a coercive law, made in support of the above discoereive one. Let no man hinder the sheriff from hanging such as the judge, proceeding in due course of law, shall order him to hang. Example of a punitory law, made in support of the above coercive one. Let the judge cause to be imprisoned whosoever attempts to hinder the sheriff from hanging one, whom the judge, proceeding in due course of law, has ordered him to hang.

But though a simply imperative law, and the punitory law attached to it, are so far distinct laws, that the former contains nothing of the latter, and the latter, in its direct tenor, contains nothing of the former; yet by implication, and that a necessary one, the punitory does involve and include the import of the simply imperative law to which it is appended. To say to the judge Cause to be hanged whoever in due form of law is convicted of stealing, is, though not a direct, yet as intelligible a way of intimating to men in general that they must not steal, as to say to them directly, Do not steal: and one sees, how much more likely to be efficacious.

It should seem then, that, wherever a simply imperative law is to have a punitory one appended to it, the former might be spared altogether: in, which case, saving the exception (which naturally should seem not likely to be a frequent one) of a law capable of answering its purpose without such an appendage, there should be no occasion in the whole body of the law for any other than punitory, or in other words than penal, laws. And this, perhaps, would be the case, were it not for the necessity of a large quantity of matter of the expository kind, of which we come now to speak.

It will happen in the instance of many, probably of most, possibly of all commands endued with the force of a public law, that, in the expression given to such a command it shall be necessary to have recourse to terms too complex in their signification to exhibit the requisite ideas, without the assistance of a greater or less quantity of matter of an expository nature. Such terms, like the symbols used in algebraical notation, are rather substitutes and indexes to the terms capable of themselves of exhibiting the ideas in question, than the real and immediate representatives of those ideas.

Take for instance the law, Thou shalt not steal. Such a command, were it to rest there, could never sufficiently answer the purpose of a law. A word of so vague and unexplicit a meaning cannot otherwise perform this office, than by giving a general intimation of a variety of propositions, each requiring, to convey it to the apprehension, a more particular and ample assemblage of terms. Stealing, for example (according to a definition not accurate enough for use, but sufficiently so for the present purpose), is the taking of a thing which is another's, by one who has no TITLE so to do, and is conscious of his having none. Even after this exposition, supposing it a correct one, can the law be regarded as completely expressed? Certainly not. For what is meant by a man's having a TITLE to take a thing? To be complete, the law must have exhibited, amongst a multitude of other things, two catalogues: the one of events to which it has given the quality of conferring title in such a case; the other of the events to which it has given the quality of taking it away. What follows? That for a man to have stolen, for a man to have had no title to what he took, either no one of the articles contained in the first of those lists must have happened in his favour, or if there has, some one of the number of those contained in the second must have happened to his prejudice.

Such then is the nature of a general law, that while the imperative part of it, the punctum saliens as it may be termed, of this artificial body, shall not take up above two or three words, its expository appendage, without which that imperative part could not rightly perform its office, may occupy a considerable volume.

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.

The same mass of expository matter may serve in common for, may appertain in common to, many commands, many masses of imperative matter. Thus, amongst other things, the catalogue of collative and ablative events, with respect to titles above spoken of (see No. IX. of this note), will belong in common to all or most of the laws constitutive of the various offences against property. Thus, in mathematical diagrams, one and the same base shall serve for a whole cluster of triangles.

Such expository matter, being of a complexion so different from the imperative it would be no wonder if the connection of the former with the latter should escape the observation: which, indeed, is perhaps pretty generally the case. And so long as any mass of legislative matter presents itself, which is not itself imperative or the contrary, or of which the connection with matter of one of those two descriptions is not apprehended, so long and so far the truth of the proposition, That every law is a command or its opposite, may remain unsuspected, or appear questionable; so long also may the incompleteness of the greater part of those masses of legislative matter, which wear the complexion of complete laws upon the face of them, also the method to be taken for rendering them really complete, remain undiscovered.

A circumstance, that will naturally contribute to increase the difficulty of the discovery, is the great variety of ways in which the operation of a law may be conveyed—the great variety of forms which the imperative part of a law may indiscriminately assume: some more directly, some less directly expressive of the imperative quality. Thou shalt not steal. Let no man steal. Whoso stealeth shall be punished so and so. If any man steal, he shall be punished so and so. Stealing is where a man does so and so; the punishment for stealing is so and so. To judges so and so named, and so and so constituted, belong the cognizance of such and such offences; viz. stealing—and so on. These are but part of a multitude of forms of words, in any of which the command by which stealing is prohibited might equally be couched: and it is manifest to what a degree, in some of them, the imperative quality is clouded and concealed from ordinary apprehension.

After this explanation, a general proposition or two, that may be laid down, may help to afford some little insight into the structure and contents of a complete body of laws.—So many different sorts of offences created, so many different laws of the coercive kind: so many exceptions taken out of the descriptions of those offences, so many laws of the discoercive kind.

To class offences, as hath been attempted to be done in the preceding chapter, is therefore to class laws: to exhibit a complete catalogue of all the offences created by law, including the whole mass of expository matter necessary for fixing and exhibiting the import of the terms contained in the several laws, by which those offences are respectively created, would be to exhibit a complete collection of the laws in force: in a word a complete body of law; a pannomion, if so it might be termed.

From the obscurity in which the limits of a law, and the distinction betwixt a law of the civil or simply imperative kind and a punitory law, are naturally involved, results the obscurity of the limits betwixt a civil and a penal code, betwixt a civil branch of the law and the penal.

The question, What parts of the total mass of legislative matter belong to the civil branch, and what to the penal? supposes that divers political states, or at least that some one such state, are to be found, having as well a civil code as a penal code, each of them complete in its kind, and marked out by certain limits. But no one such state has ever yet existed.

To put a question to which a true answer can be given, we must substitute to the foregoing question some such a one as that which follows:

Suppose two masses of legislative matter to be drawn up at this time of day, the one under the name of a civil code, the other of a penal code, each meant to be complete in its kind—in what general way, is it natural to suppose, that the different sorts of matter, as above distinguished, would be distributed between them?

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 expository matter. The imperative matter, to which those masses of expository matter respectively appertained, would be found—not in that same code—not in the civil code—nor in a pure state, free from all admixture of punitory laws; but in the penal code—in a state of combination—involved, in manner as above explained, in so many correspondent punitory laws.

The penal code then would consist principally of punitive laws, involving the imperative matter of the whole number of civil laws: along with which would probably also be found various masses of expository matter, appertaining not to the civil, but to the punitory laws. The body of penal law enacted by the Empress-Queen Maria Theresa, agrees pretty well with this account.

The mass of legislative matter published in French as well as German, under the auspices of Frederic II. of Prussia, by the name of Code Frederic, but never established with force of law, appears, for example, to be almost wholly composed of masses of expository matter, the relation of which to any imperative matter appears to have been but very imperfectly apprehended.

In that enormous mass of confusion and inconsistency, the ancient Roman, or, as it is termed by way of eminence, the civil law, the imperative matter, and even all traces of the imperative character, seem at last to have been smothered in the expository. Esto had been the language of primæval simplicity: esto had been the language of the twelve tables. By the time of Justinian (so thick was the darkness raised by clouds of commentators) the penal law had been crammed into an odd corner of the civil—the whole catalogue of offences, and even of crimes, lay buried under a heap of obligations—will was hid in opinion—and the original esto had transformed itself into videtur, in the mouths even of the most despotic sovereigns.

Among the barbarous nations that grew up out of the ruins of the Roman Empire, Law, emerging from under the mountain of expository rubbish, reassumed for a while the language of command: and then she had simplicity at least, if nothing else, to recommend her.

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

The constitutional branch is chiefly employed in conferring, on particular classes of persons, powers, to be exercised for the good of the whole society, or of considerable parts of it, and prescribing duties to the persons invested with those powers.

The powers are principally constituted, in the first instance, by discoercive or permissive laws operating as exceptions to certain laws of the coercive or imperative kind. Instance: A tax-gatherer, as such, may, on such and such an occasion, take such and such things, without any other TITLE.

The duties are created by imperative laws, addressed to the persons on whom the powers are conferred. Instance: On such and such an occasion, such and such a tax-gatherer shall take such and such things. Such and such a judge shall, in such and such a case, cause persons so and so offending to be hanged.

The parts which perform the function of indicating who the individuals are, who, in every case, shall be considered as belonging to those classes, have neither a permissive complexion, nor an imperative.

They are so many masses of expository matter, appertaining in common to all laws, into the texture of which, the names of those classes of persons have occasion to be inserted. Instance; imperative matter:—Let the judge cause whoever, in due course of law, is convicted of stealing, to be hanged. Nature of the expository matter:—Who is the person meant by the word judge? He who has been invested with that office in such a manner: and in respect of whom no event has happened, of the number of those, to which the effect is given, of reducing him to the condition of one divested of that office.

Thus it is, that one and the same law, one and the same command, will have its matter divided, not only between two great codes, or main branches of the whole body of the laws, the civil and the penal; but amongst three such branches, the civil, the penal and the constitutional.

In countries, where a great part of the law exists in no other shape, than that of which in England is called common law but might be more expressively termed judiciary, there must be a great multitude of laws, the import of which cannot be sufficiently made out for practice, without referring to this common law, for more or less of the expository matter belonging to them. Thus in England the exposition of the word title, that basis of the of whole fabric of the laws of property, is nowhere else to be found. And, as uncertainty is of the very essence of every particle of law so denominated (for the instant it is clothed in a certain authoritative form of words it changes its nature, and passes over to the other denomination) hence it is that a great part of the laws in being in such countries remain uncertain and incomplete. What are those countries? To this hour, every one on the surface of the globe.

Had the science of architecture no fixed nomenclature belonging to it—were there no settled names for distinguishing the different sorts of buildings nor the different parts of the same building from each other—what would it be? It would be what the science of legislation, considered with respect to its form, remains at present.

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 collected not an answer to the questions in the text but an intimation, and that but an imperfect one, of the course to be taken for giving such an answer; and, at any rate, some idea of the difficulty, as well as of the necessity, of the task.

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 recommendations in ingenious books, to restrain supreme representative assemblies from making laws in such and such cases, or to such and such an effect. Such laws, to answer the intended purpose, require a perfect mastery in the science of law considered in respect of its form—in the sort of anatomy spoken of in the preface to this work: but a perfect, or even a moderate insight into that science, would prevent their being couched in those loose and inadequate terms, in which they may be observed so frequently to be conceived; as a perfect acquaintance with the dictates of utility on that head would, in many, if not in most, of those instances, discounsel the attempt. Keep to the letter, and in attempting to prevent the making of bad laws, you will find them prohibiting the making of the most necessary laws, perhaps even of all laws: quit the letter, and they express no more than if each man were to say, Your laws shall become ipso facto void, as often as they contain any thing which is not to my mind.

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 the State of North Carolina, in convention, in or about the month of September, 1788, and said to be copied, with a small exception, from one in like manner enacted by the State of Virginia.

The following, to go no farther, is the first and fundamental 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 protecting 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 tanto, of the enjoyment of liberty, viz. the liberty of paying or not paying as he thinks proper: not to mention the species opposed to imprisonment, in the event of such a mode of coercion's being resorted to: likewise of property, which is itself a 'means of acquiring, possessing and protecting property, and of pursuing and obtaining happiness and safety.'

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 examples, amongst an endless train of similar ones.

Leaning on his elbow, in an attitude of profound and solemn meditation, 'What a multitude of things there are' (exclaimed the dancing-master Marcel) 'in a minuet!'—May we now add?—and in a law.

For example.—It is worse to lose than simply not to gain.—A loss falls the lighter by being divided.—The suffering of a person hurt in gratification of enmity, is greater than the gratification produced lay the same cause.—These, and a few others which he will have occasion to exhibit at the head of another publication, have the same claim to the appellation of axioms as those given by mathematicians under that name; since, referring to universal experience as their immediate basis, they are incapable of demonstration, and require only to be developed and illustrated in order to be recognized as incontestable.

The first edition was published in 1789, in quarto.

A Fragment on Government, &c., reprinted in 1822.

Such as obligation, right power, possession, title, exemption, immunity, franchise, privilege, nullity, validity, and the like.

To the aggregate of them a common denomination has since been allotted—the rationale.

Note by the Author, July 1822.

To this denomination has of late been added, or substituted, the greatest happiness or greatest felicity principle: this for shortness, instead of saying at length that principle which states the greatest happiness of all those whose interest is in question, as being the right and proper, and only right and proper and universally desirable, end of human action: of human action in every situation, and in particular in that of a functionary or set of functionaries exercising the powers of Government. The word utility does not so clearly point to the ideas of pleasure and pain as the words happiness and felicity do: nor does it lead us to the consideration of the number, of the interests affected; to the number, as being the circumstance, which contributes, in the largest proportion, to the formation of the standard here in question; the standard of right and wrong, by which alone the propriety of human conduct, in every situation, can with propriety be tried. This want of a sufficiently manifest connexion between the ideas of happiness and pleasure on the one hand, and the idea of utility on the other, I have every now and then found operating, and with but too much efficiency, as a bar to the acceptance, that might otherwise have been given, to this principle.

The word principle is derived from the Latin principium: which seems to be compounded of the two words primus, first, or chief, and cipium a termination which seems to be derived from capio, to take, as in mancipium, municipium; to which are analogous, auceps, forceps, and others. It is a term of very vague and very extensive signification: it is applied to any thing which is conceived to serve as a foundation or beginning to any series of operations: in some cases, of physical operations; but of mental operations in the present case.

The principle here in question may be taken for an act of the mind; a sentiment; a sentiment of approbation; a sentiment which, when applied to an action, approves of its utility, as that quality of it by which the measure of approbation or disapprobation bestowed upon it ought to be governed.

Interest is one of those words, which not having any superior genus, cannot in the ordinary way be defined.

'The principle of utility, (I have heard it said) is a dangerous principle: it is dangerous on certain occasions to consult it.' This is as much as to say, what? that it is not consonant to utility, to consult utility: in short, that it is not consulting it, to consult it.

Addition by the Author, July 1822.

Not long after the publication of the Fragment on Government, anno 1776, in which, in the character of all-comprehensive and all-commanding principle, the principle of utility was brought to view, one person by whom observation to the above effect was made was Alexander Wedderburn, at that time Attorney or Solicitor General, afterwards successively Chief Justice of the Common Pleas, and Chancellor of England, under the successive titles of Lord Loughborough and Earl of Rosslyn. It was made—not indeed in my hearing, but in the hearing of a person by whom it was almost immediately communicated to me. So far from being self-contradictory, it was a shrewd and perfectly true one. By that distinguished functionary, the state of the Government was thoroughly understood: by the obscure individual, at that time not so much as supposed to be so: his disquisitions had not been as yet applied, with any thing like a comprehensive view, to the field of Constitutional Law, nor therefore to those features of the English Government, by which the greatest happiness of the ruling one with or without that of a favoured few, are now so plainly seen to be the only ends to which the course of it has at any time been directed. The principle of utility was an appellative, at that time employed by me, as it had been by others, to designate that which, in a more perspicuous and instructive manner, may, as above, be designated by the name of the greatest happiness principle. 'This principle (said Wedderburn) is a dangerous one.' Saying so, he said that which, to a certain extent, is strictly true: a principle, which lays down, as the only right and justifiable end of Government, the greatest happiness of the greatest number—how can it be denied to be a dangerous one? dangerous it unquestionably is, to every government which has for its actual end or object, the greatest happiness of a certain one, with or without the addition of some comparatively small number of others, whom it is matter of pleasure or accommodation to him to admit, each of them, to a share in the concern, on the footing of so many junior partners. Dangerous it therefore really was, to the interest—the sinister interest—of all those functionaries, himself included, whose interest it was, to maximize delay, vexation, and expense, in judicial and other modes of procedure, for the sake of the profit, extractible out of the expense. In a Government which had for its end in view the greatest happiness of the greatest number, Alexander Wedderburn might have been Attorney General and then Chancellor: but he would not have been Attorney General with £15,000 a year, nor Chancellor, with a peerage with a veto upon all justice, with £25,000 a year, and with 500 sinecures at his disposal, under the name of Ecclesiastical Benefices, besides et cæteras.

Ascetic is a term that has been sometimes applied to Monks. It comes from a Greek word which signifies exercise. The practices by which Monks sought to distinguish themselves from other men were called their Exercises. These exercises consisted in so many contrivances they had for tormenting themselves. By this they thought to ingratiate themselves with the Deity. For the Deity, said they, is a Being of infinite benevolence: now a Being of the most ordinary benevolence is pleased to see others make themselves as happy as they can: therefore to make ourselves as unhappy as we can is the way to please the Deity. If any body asked them, what motive they could find for doing all this? Oh! said they, you are not to imagine that we are punishing ourselves for nothing: we know very well what we are about. You are to know, that for every grain of pain it costs us now, we are to have a hundred grains of pleasure by and by. The case is, that God loves to see us torment ourselves at present: indeed he has as good as told us so. But this is done only to try us, in order just to see how we should behave: which it is plain he could not know, without making the experiment. Now then, from the satisfaction it gives him to see us make ourselves as unhappy as we can make ourselves in this present life, we have a sure proof of the satisfaction it will give him to see us as happy as he can make us in a life to come.

The following Note was first printed in January 1789.

It ought rather to have been styled, more extensively, the principle of caprice. Where it applies to the choice of actions to be marked out for injunction or prohibition, for reward or punishment, (to stand, in a word, as subjects for obligations to be imposed,) it may indeed with propriety be termed, as in the text, the principle of sympathy and antipathy. But this appellative does not so well apply to it, when occupied in the choice of the events which are to serve as sources of title with respect to rights: where the actions prohibited and allowed the obligations and rights, being already fixed, the only question is, under what circumstances a man is to be invested with the one or subjected to the other? from what incidents occasion is to be taken to invest a man, or to refuse to invest him, with the one, or to subject him to the other? In this latter case it may more appositely be characterized by the name of the phantastic principle. Sympathy and antipathy are affections of the sensible faculty. But the choice of titles with respect to rights, especially with respect to proprietary rights, upon grounds unconnected with utility, has been in many instances the work not of the affections but of the imagination.

When, in justification of an article of English Common Law calling uncles to succeed in certain cases in preference to fathers, Lord Coke produced a sort of ponderosity he had discovered in rights, disqualifying them from ascending in a straight line, it was not that he loved uncles particularly, or hated fathers, but because the analogy, such as it was, was what his imagination presented him with, instead of a reason, and because, to a judgment unobservant of the standard of utility, or unacquainted with the art of consulting it, where affection is out of the way, imagination is the only guide.

When I know not what ingenious grammarian invented the proposition Delegatus non potest delegare, to serve as a rule of law, it was not surely that he had any antipathy to delegates of the second order, or that it was any pleasure to him to think of the ruin which, for want of a manager at home, may befall the affairs of a traveller whom an unforeseen accident has deprived of the object of his choice: it was, that the incongruity, of giving the same law to objects so contrasted as active and passive are, was not to be surmounted, and that -atus chimes, as well as it contrasts, with -are.

When that inexorable maxim, (of which the dominion is no more to be defined, than the date of its birth, or the name of its father, is to be found,) was imported from England for the government of Bengal, and the whole fabric of judicature was crushed by the thunders of ex post facto justice, it was not surely that the prospect of a blameless magistracy perishing in prison afforded any enjoyment to the unoffended authors of their misery; but that the music of the maxim, absorbing the whole imagination, had drowned the cries of humanity along with the dictates of common sense.* Fiat Justitia, ruat cœlum, says another maxim, as full of extravagance as it is of harmony: Go heaven to wreck—so justice be but done:—and what is the ruin of kingdoms, in comparison of the wreck of heaven?

So again, when the Prussian chancellor, inspired with the wisdom of I know not what Roman sage, proclaimed in good Latin, for the edification of German ears, Servitus servitutis non datur, [Cod. Fred. tom. ii. par. 2. liv. 2. tit. x. 6. p. 308.] it was not that he had conceived any aversion to the life-holder who, during the continuance of his term, should wish to gratify a neighbour with a right of way or water, or to the neighbour who should wish to accept of the indulgence; but that, to a jurisprudential ear, -tus -tutis sound little less melodious than -atus -are. Whether the melody of the maxim was the real reason of the rule, is not left open to dispute: for it is ushered in by the conjunction quia, reason's appointed harbinger: quia servitus servitutis non datur.

Neither would equal melody have been produced, nor indeed could similar melody have been called for, in either of these instances, by the opposite provision: it is only when they are opposed to general rules, and not when by their conformity they are absorbed in them, that more specific ones can obtain a separate existence. Delegatus potest delegare, and Servitus servitutis datur, provisions already included under the general adoption of contracts, would have been as unnecessary to the apprehension and the memory, as, in comparison of their energetic negatives, they are insipid to the ear.

Were the inquiry diligently made, it would be found that the goddess of harmony has exercised more influence, however latent, over the dispensations of Themis, than her most diligent historiographers, or even her most passionate panegyrists, seem to have been aware of. Every one knows, how, by the ministry of Orpheus, it was she who first collected the sons of men beneath the shadow of the sceptre: yet, in the midst of continual experience, men seem yet to learn, with what successful diligence she has laboured to guide it in its course. Every one knows, that measured numbers were the language of the infancy of law: none seem to have observed with what imperious sway they have governed her maturer age. In English jurisprudence in particular, the connexion betwixt law and music, however less perceived than in Spartan legislation, is not perhaps less real nor less close. The music of the Office, though not of the same kind, is not less musical in its kind, than the music of the Theatre; that which hardens the heart, than that which softens it:—sostenutos as long, cadences as sonorous; and those governed by rules, though not yet promulgated, not less determinate. Search indictments, pleadings, proceedings in chancery, conveyances: whatever trespasses you may find against truth or common sense you will find none against the laws of harmony. The English Liturgy justly as this quality has been extolled in that sacred office, possesses not a greater measure of it, than is commonly to be found in an English Act of Parliament. Dignity, simplicity, brevity, precision, intelligibility, possibility of being retained or so much as apprehended, every thing yields to Harmony. Volumes might be filled, shelves loaded, with the sacrifices that are made to this insatiate power. Expletives, her ministers in Grecian poetry are not less busy, though in different shape and bulk, in English legislation: in the former, they are monosyllables:** in the latter, they are whole lines.***

To return to the principle of sympathy and antipathy: a term preferred at first, on account of its impartiality, to the principle of caprice. The choice of an appellative, in the above respects too narrow, was owing to my not having, at that time, extended my views over the civil branch of law, any otherwise than as I had found it inseparably involved in the penal. But when we come to the former branch, we shall see the phantastic principle making at least as great a figure there, as the principle of sympathy and antipathy in the latter.

In the days of Lord Coke, the light of utility can scarcely be said to have as yet shone upon the face of Common Law. If a faint ray of it, under the name of the argumentum ab inconvenienti, is to be found in a list of about twenty topics exhibited by that great lawyer as the co-ordinate leaders of that all-perfect system, the admission, so circumstanced, is as sure a proof of neglect, as, to the statues of Brutus and Cassius, exclusion was a cause of notice. It stands, neither in the front, nor in the rear, nor in any post of honour; but huddled in towards the middle, without the smallest mark of preference. [Coke, Littleton, II. a.] Nor is this Latin inconvenience by any means the same thing with the English one. It stands distinguished from mischief: and because by the vulgar it is taken for something less bad, it is given by the learned as something worse. The law prefers a mischief to an inconvenience, says an admired maxim, and the more admired, because as nothing is expressed by it, the more is supposed to be understood.

Not that there is any avowed, much less a constant opposition, between the prescriptions of utility and the operations of the common law: such constancy we have seen to be too much even for ascetic fervor. From time to time instinct would unavoidably betray them into the paths of reason: instinct which, however it may be cramped, can never be killed by education. The cobwebs spun out of the materials brought together by 'the competition of opposite analogies,' can never have ceased being warped by the silent attraction of the rational principle: though it should have been, as the needle is by the magnet, without the privity of conscience.

• Additional Note by the Author, July 1822.

Add, and that the bad system, of Mahometan and other native law was to be put down at all events, to make way for the inapplicable and still more mischievous system of English Judge-made law, and, by the hand of his accomplice Hastings, was to be put into the pocket of Impey—Importer of this instrument of subversion, £8,000 a-year contrary to law, in addition to the £8,000 a-year lavished upon him, with the customary profusion, by the hand of law.—See the Account of the transaction in Mill's British India.

To this Governor a statue is erecting by a vote of East India Directors and Proprietors: on it should be inscribed—Let it but put money into our pockets, no tyranny too flagitious to be worshipped by us.

To this statue of the Arch-malefactor should be added, for a companion, that of the long-robed accomplice: the one lodging the bribe in the hand of the other. The hundred millions of plundered and oppressed Hindoos and Mahometans pay for the one: a Westminster Hall subscription might pay for the other.

What they have done for Ireland with her seven millions of souls, the authorized deniers and perverters of justice have done for Hindostan with her hundred millions. In this there is nothing wonderful. The wonder is—that, under such institutions, men, though in ever such small number, should be found, whom the view of the injustices which, by English Judge-made law, they are compelled to commit, and the miseries they are thus compelled to produce, deprive of health and rest. Witness the Letter of an English Hindostan Judge, Sept. 1, 1819, which lies before me. I will not make so cruel a requital for his honesty, as to put his name in print: indeed the House of Commons' Documents already published leave little need of it.

*** And be it further enacted by the authority aforesaid, that—Provided always, and it is hereby further enacted and declared that—&c. &c.

It is curious enough to observe the variety of inventions men have hit upon, and the variety of phrases they have brought forward, in order to conceal from the world, and, if possible, from themselves, this very general and therefore very pardonable self-sufficiency.

12. One man says, he has a thing made on purpose to tell him what is right and what is wrong; and that it is called a moral sense: and then he goes to work at his ease, and says, such a thing is right, and such a thing is wrong—why? 'because my moral sense tells me it is.'

13. Another man comes and alters the phrase: leaving out moral, and putting in common, in the room of it. He then tells you, that his common sense teaches him what is right and wrong, as surely as the other's moral sense did: meaning by common sense, a sense of some kind or other, which he says, is possessed by all mankind: the sense of those, whose sense is not the same as the author's, being struck out of the account as not worth taking. This contrivance does better than the other, for a moral sense being a new thing, a man may feel about him a good while without being able to find it out: but common sense is as old as the creation, and there is no man but would be ashamed to be thought not to have as much of it as his neighbours. It has another great advantage: by appearing to share power, it lessens envy: for when a man gets up upon this ground, in order to anathematize those who differ from him, it is not by a sic volo sic jubeo, but by a velitis jubeatis.

14. Another man comes, and says, that as to a moral sense indeed, he cannot find that he has any such thing: that however he has an understanding, which will do quite as well. This understanding, he says, is the standard of right and wrong: it tells him so and so. All good and wise men understand as he does: if other men's understandings differ in any point from his, so much the worse for them: it is a sure sign they are either defective or corrupt.

15. Another man says, that there is an eternal and immutable Rule of Right: that that rule of right dictates so and so: and then he begins giving you his sentiments upon any thing that comes uppermost: and these sentiments (you are to take for granted) are so many branches of the eternal rule of right.

16. Another man, or perhaps the same man (it's no matter) says, that there are certain practices conformable, and others repugnant, to the Fitness of Things; and then he tells you, at his leisure, what practices are conformable and what repugnant: just as he happens to like a practice or dislike it.

17. A great multitude of people are continually talking of the Law of Nature; and then they go on giving you their sentiments about what is right and what is wrong: and these sentiments, you are to understand, are so many chapters and sections of the Law of Nature.

18. Instead of the phrase, Law of Nature, you have sometimes, Law of Reason, Right Reason, Natural Justice, Natural Equity, Good Order. Any of them will do equally well. This latter is most used in politics. The three last are much more tolerable than the others, because they do not very explicitly claim to be any thing more than phrases: they insist but feebly upon the being looked upon as so many positive standards of themselves, and seem content to be taken, upon occasion, for phrases expressive of the conformity of the thing in question to the proper standard, whatever that may be. On most occasions, however, it will be better to say utility: utility is clearer, as referring more explicitly to pain and pleasure.

19. We have one philosopher, who says, there is no harm in any thing in the world but in telling a lie: and that if, for example, you were to murder your own father, this would only be a particular way of saying, he was not your father. Of course, when this philosopher sees any thing that he does not like, he says, it is a particular way of telling a lie. It is saying, that the act ought to be done, or may be done, when, in truth, it ought not to be done.

20. The fairest and openest of them all is that sort of man who speaks out, and says, I am of the number of the Elect: now God himself takes care to inform the Elect what is right: and that with so good effect, and let them strive ever so, they cannot help not only knowing it but practicing it. If therefore a man wants to know what is right and what is wrong, he has nothing to do but to come to me.

21. It is upon the principle of antipathy that such and such acts are often reprobated on the score of their being unnatural: the practice of exposing children, established among the Greeks and Romans, was an unnatural practice. Unnatural, when it means any thing, means unfrequent: and there it means something; although nothing to the present purpose. But here it means no such thing: for the frequency of such acts is perhaps the great complaint. It therefore means nothing; nothing, I mean, which there is in the act itself. All it can serve to express is, the disposition of the person who is talking of it: the disposition he is in to be angry at the thoughts of it. Does it merit his anger? Very likely it may: but whether it does or no is a question, which, to be answered rightly, can only be answered upon the principle of utility.

Unnatural, is as good a word as moral sense, or common sense; and would be as good a foundation for a system. Such an act is unnatural; that is, repugnant to nature: for I do not like to practice it: and, consequently, do not practise it. It is therefore repugnant to what ought to be the nature of every body else.

The mischief common to all these ways of thinking and arguing (which, in truth, as we have seen, are but one and the same method, couched in different forms of words) is then serving as a cloke, and pretense, and aliment, to despotism: if not a despotism in practice, a despotism however in disposition: which is but too apt, when pretense and power offer, to show itself in practice. The consequence is, that with intentions very commonly of the purest kind, a man becomes a torment either to himself or his fellow-creatures. If he be of the melancholy cast, he sits in silent grief, bewailing their blindness and depravity: if of the irascible, he declaims with fury and virulence against all who differ from him; blowing up the coals of fanaticism, and branding with the charge of corruption and insincerity, every man who does not think, or profess to think, as he does.

If such a man happens to possess the advantages of style, his book may do a considerable deal of mischief before the nothingness of it is understood.

These principles, if such they can be called, it is more frequent to see applied to morals than to politics: but their influence extends itself to both. In politics, as well as morals, a man will be at least equally glad of a pretense for deciding any question in the manner that best pleases him without the trouble of inquiry. If a man is an infallible judge of what is right and wrong in the actions of private individuals, why not in the measures to be observed by public men in the direction of those actions? accordingly (not to mention other chimeras) I have more than once known the pretended law of nature set up in legislative debates, in opposition to arguments derived from the principle of utility.

'But is it never, then, from any other considerations than those of utility, that we derive our notions of right and wrong?' I do not know: I do not care. Whether a moral sentiment can be originally conceived from any other source than a view of utility, is one question: whether upon examination and reflection it can, in point of fact, be actually persisted in and justified on any other ground, by a person reflecting within himself, is another: whether in point of right it can properly be justified on any other ground, by a person addressing himself to the community, is a third. The two first are questions of speculation: it matters not, comparatively speaking, how they are decided. The last is a question of practice: the decision of it is of as much importance as that of any can be.

'I feel in myself,' (say you) 'a disposition to approve of such or such an action in a moral view: but this is not owing to any notions I have of its being a useful one to the community. I do not pretend to know whether it be an useful one or not: it may be, for aught I know, a mischievous one.' 'But is it then,' (say I) 'a mischievous one? examine; and if you can make yourself sensible that it is so, then, if duty means any thing, that is, moral duty, is your duty at least to abstain from it: and more than that, if it is what lies in your power, and can be done without too great a sacrifice, to endeavour to prevent it. It is not your cherishing the notion of it in your bosom, and giving it the name of virtue, that will excuse you.'

'I feel in myself,' (say you again) 'a disposition to detest such or such an action in a moral view; but this is not owing to any notions I have of its being a mischievous one to the community. I do not pretend to know whether it be a mischievous one or not: it may be not a mischievous one: it may be, for aught I know, an useful one.'—'May it indeed', (say I) 'an useful one? but let me tell you then, that unless duty, and right and wrong, be just what you please to make them, if it really be not a mischievous one, and any body has a mind to do it, it is no duty of yours, but, on the contrary, it would be very wrong in you, to take upon you to prevent him: detest it within yourself as much as you please; that may be a very good reason (unless it be also a useful one) for your not doing it yourself: but if you go about, by word or deed, to do any thing to hinder him, or make him suffer for it, it is you, and not he, that have done wrong: it is not your setting yourself to blame his conduct, or branding it with the name of vice, that will make him culpable, or you blameless. Therefore, if you can make yourself content that he shall be of one mind, and you of another, about that matter, and so continue, it is well: but if nothing will serve you, but that you and he must needs be of the same mind, I'll tell you what you have to do: it is for you to get the better of your antipathy, not for him to truckle to it.'

King James the First of England had conceived a violent antipathy against Arians: two of whom he burnt.* This gratification he procured himself without much difficulty: the notions of the times were favourable to it. He wrote a furious book against Vorstius, for being what was called an Arminian: for Vorstius was at a distance. He also wrote a furious book, called 'A Counterblast to Tobacco,' against the use of that drug, which Sir Walter Raleigh had then lately introduced. Had the notions of the times co-operated with him, he would have burnt the Anabaptist and the smoker of tobacco in the same fire. However he had the satisfaction of putting Raleigh to death afterwards, though for another crime.

Disputes concerning the comparative excellence of French and Italian music have occasioned very serious bickerings at Paris. One of the parties would not have been sorry (says Mr. D'Alembert**) to have brought government into the quarrel. Pretences were sought after and urged. Long before that, a dispute of like nature, and of at least equal warmth, had been kindled at London upon the comparative merits of two composers at London; where riots between the approvers and disapprovers of a new play are, at this day, not unfrequent. The ground of quarrel between the Big-endians and the Little-endians in the fable, was not more frivolous than many an one which has laid empires desolate. In Russia, it is said, there was a time when some thousands of persons lost their lives in a quarrel, in which the government had taken part, about the number of fingers to be used in making the sign of the cross. This was in days of yore: the ministers of Catherine II. are better instructed*** than to take any other part in such disputes, than that of preventing the parties concerned from doing one another a mischief.

• Hume's Hist. vol. 6. ** Melanges Essai sur la Liberté de la Musique. *** Instruct. Art. 474, 475, 476.

See ch. xvi. [Division], par. 42, 44.

The principle of theology refers every thing to God's pleasure. But what is God's pleasure? God does not, he confessedly does not now, either speak or write to us. How then are we to know what is his pleasure? By observing what is our own pleasure, and pronouncing it to be his. Accordingly, what is called the pleasure of God, is and must necessarily be (revelation apart) neither more nor less than the good pleasure of the person whoever he be, who is pronouncing what he believes, or pretends, to be God's pleasure. How know you it to be God's pleasure that such or such an act should be abstained from? whence come you even to suppose as much? 'Because the engaging in it would, I imagine, be prejudicial upon the whole to the happiness of mankind;' says the partizan of the principle of utility: 'Because the commission of it is attended with a gross and sensual, or at least with a trifling and transient satisfaction;' says the partizan of the principle of asceticism: 'Because I detest the thoughts of it; and I cannot, neither ought I to be called upon to tell why;' says he who proceeds upon the principle of antipathy. In the words of one or other of these must that person necessarily answer (revelation apart) who professes to take for his standard the will of God.

Sanctio, in Latin was used to signify the act of binding, and, by a common grammatical transition, any thing which serves to bind a man: to wit, to the observance of such or such a mode of conduct. According to a Latin grammarian,* the import of the word is derived by rather a far-fetched process (such as those commonly are, and in a great measure indeed must be, by which intellectual ideas are derived from sensible ones) from the word sanguis, blood: because, among the Romans, with a view to inculcate into the people a persuasion that such or such a mode of conduct would be rendered obligatory upon a man by the force of what I call the religious sanction (that is, that he would be made to suffer by the extraordinary interposition of some superior being, if he failed to observe the mode of conduct in question) certain ceremonies were contrived by the priests: in the course of which ceremonies the blood of victims was made use of.

A Sanction then is a source of obligatory powers or motives: that is, of pains and pleasures; which, according as they are connected with such or such modes of conduct, operate, and are indeed the only things which can operate, as motives. See Chap. x. [Motives].

• Servius. See Ainsworth's Dict. Ad verbum Sanctio.

Better termed popular, as more directly indicative of its constituent cause; as likewise of its relation to the more common phrase public opinion, in French opinion publique, the name there given to that tutelary power, of which of late so much is said, and by which so much is done. The latter appellation is however unhappy and inexpressive; since if opinion is material, it is only in virtue of the influence it exercises over action, through the medium of the affections and the will.

A suffering conceived to befall a man by the immediate act of God, as above, is often, for shortness' sake, called a judgment: instead of saying, a suffering inflicted on him in consequence of a special judgment formed, and resolution thereupon taken, by the Deity.

See ch. xiii. [Cases unmeet] par. 2. note.

These circumstances have since been denominated elements or dimensions of value in a pleasure or a pain.

Not long after the publication of the first edition, the following memoriter verses were framed, in the view of lodging more effectually, in the memory, these points, on which the whole fabric of morals and legislation may be seen to rest.

The catalogue here given, is what seemed to be a complete list of the several simple pleasures and pains of which human nature is susceptible: insomuch, that if, upon any occasion whatsoever, a man feels pleasure or pain, it is either referable at once to some one or other of these kinds, or resolvable into such as are. It might perhaps have been a satisfaction to the reader, to have seen an analytical view of the subject, taken upon an exhaustive plan, for the purpose of demonstrating the catalogue to be what it purports to be, a complete one. The catalogue is in fact the result of such an analysis which, however, I thought it better to discard at present as being of too metaphysical a cast, and not strictly within the limits of this design. See ch. xiii. [Cases unmeet], par. 2. Note.

There are also pleasures of novelty, excited by the appearance of new ideas: these are pleasures of the imagination. See infra xiii.

For instance, the pleasure of being able to gratify the sense of hearing, by singing, or performing upon any musical instrument. The pleasure thus obtained, is a thing superadded to, and perfectly distiguishable from, that which a man enjoys from hearing another person perform in the same manner.

See ch. iii. [Sanctions].

See ch. iii. [Sanctions].

In contradistinction to these, all other pleasures may be termed pleasures of enjoyment.

The pleasure of the sexual sense seems to have no positive pain to correspond to it: it has only a pain of privation, or pain of the mental class, the pain of unsatisfied desire. If any positive pain of body result from the want of such indulgence, it belongs to the head of pains of disease.

The pleasures of novelty have no positive pains corresponding to them. The pain which a man experiences when he is in the condition of not knowing what to do with himself, that pain, which in French is expressed by a single word ennui, is a pain of privation: a pain resulting from the absence, not only of all the pleasures of novelty, but of all kinds of pleasure whatsoever.

The pleasures of wealth have also no positive pains corresponding to them: the only pains opposed to them are pains of privation. If any positive pains result from the want of wealth, they are referable to some other class of positive pains; principally to those of the senses. From the want of food, for instance, result the pains of hunger; from the want of clothing, the pains of cold; and so forth.

It may be a question, perhaps, whether this be a positive pain of itself, or whether it be nothing more than a pain of privation, resulting from the consciousness of a want of skill. It is, however, but a question of words, nor does it matter which way it be determined.

In as far as a man's fellow-creatures are supposed to be determined by any event not to regard him with any degree of esteem or good will, or to regard him with a less degree of esteem or good will than they would otherwise; not to do him any sorts of good offices, or not to do him so many good offices as they would otherwise; the pain resulting from such consideration may be reckoned a pain of privation: as far as they are supposed to regard him with such a degree of aversion or disesteem as to be disposed to do him positive ill offices, it may be reckoned a positive pain. The pain of privation, and the positive pain, in this case run one into another indistinguishably.

There seem to be no positive pains to correspond to the pleasures of power. The pains that a man may feel from the want or the loss of power in as far as power is distinguished from all other sources of pleasure, seem to be nothing more than pains of privation.

The positive pains of piety, and the pains of privation, opposed to the pleasures of piety, run one into another in the same manner as the positive pains of enmity, or of an ill name, do with respect to the pains of privation, opposed to the pleasures of amity, and those of a good name. If what is apprehended at the hands of God is barely the not receiving pleasure, the pain is of the privative class if, moreover, actual pain be apprehended, it is of the class of positive pains.

In contradistinction to these, all other pains may be termed pains of sufferance.

See chap. x. [Motives].

By this means the pleasures and pains of amity may be the more clearly distinguished from those of benevolence: and on the other hand, those of enmity from those of malevolence. The pleasures and pains of amity and enmity are of the self-regarding cast: those of benevolence and malevolence of the extra-regarding.

It would be a matter not only of curiosity, but of some use, to exhibit a catalogue of the several complex pleasures and pains, analyzing them at the same time into the several simple ones, of which they are respectively composed. But such a disquisition would take up too much room to be admitted here. A short specimen, however, for the purpose of illustration, can hardly be dispensed with.

The pleasures taken in at the eye and ear are generally very complex. The pleasures of a country scene, for instance, consist commonly, amongst others, of the following pleasures:

I. Pleasures of the senses.

36. The simple pleasures of sight, excited by the perception of agreeable colours and figures, green fields, waving foliage, glistening water, and the like. 36. The simple pleasures of the ear, excited by the perceptions of the chirping of birds, the murmuring of waters, the rustling of the wind among the trees. 36. The pleasures of the smell, excited by the perceptions of the fragrance of flowers, of new-mown hay, or other vegetable substances, in the first stages of fermentation. 36. The agreeable inward sensation, produced by a brisk circulation of the blood, and the ventilation of it in the lungs by a pure air, such as that in the country frequently is in comparison of that which is breathed in towns.

II. Pleasures of the imagination produced by association.

36. The idea of the plenty, resulting from the possession of the objects that are in view, and of the happiness arising from it. 36. The idea of the innocence and happiness of the birds, sheep, cattle, dogs, and other gentle or domestic animals. 36. The idea of the constant flow of health, supposed to be enjoyed by all these creatures: a notion which is apt to result from the occasional flow of health enjoyed by the supposed spectator. 36. The idea of gratitude, excited by the contemplation of the all-powerful and beneficent Being, who is looked up to as the author of these blessings.

These four last are all of them, in some measure at least, pleasures of sympathy.

The depriving a man of this group of pleasures is one of the evils apt to result from imprisonment; whether produced by illegal violence, or in the way of punishment, by appointment of the laws.

The exciting cause, the pleasure or pain produced by it, and the intention produced by such pleasure or pain in the character of a motive, are objects so intimately connected, that, in what follows, I fear I have not, on every occasion, been able to keep them sufficiently distinct. I thought it necessary to give the reader this warning; after which, should there be found any such mistakes, it is to be hoped they will not be productive of much confusion.

Thus, in physical bodies, the momentum of a ball put in motion by impulse, will be influenced by the circumstance of gravity: being in some directions increased, in others diminished by it. So in a ship, put in motion by the wind, the momentum and direction will be influenced not only by the attraction of gravity, but by the motion and resistance of the water, and several other circumstances.

An analytical view of all these circumstances will be given at the conclusion of the chapter: to which place it was necessary to refer it, as it could not well have been understood, till some of them had been previously explained.

To search out the vast variety of exciting or moderating causes, by which the degree or bias of a man's sensibility may be influenced, to define the boundaries of each, to extricate them from the entanglements in which they are involved, to lay the effect of each article distinctly before the reader's eye, is, perhaps, if not absolutely the most difficult task, at least one of the most difficult tasks, within the compass of moral physiology. Disquisitions on this head can never be completely satisfactory without examples. To provide a sufficient collection of such examples, would be a work of great labour as well as nicety: history and biography would need to be ransacked: a vast course of reading would need to be travelled through on purpose. By such a process the present work would doubtless have been rendered more amusing; but in point of bulk, so enormous that this single chapter would have been swelled into a considerable volume. Feigned cases, although they may upon occasion serve to render the general matter tolerably intelligible, can never be sufficient to render it palatable. On this therefore, as on so many other occasions, I must confine myself to dry and general instruction: discarding illustration, although sensible that without it instruction cannot manifest half its efficacy. The subject, however, is so difficult, and so new, that I shall think I have not ill succeeded, if without pretending to exhaust it, I shall have been able to mark out the principal points of view, and to put the matter in such amethod as may facilitate the researches of happier inquirers.

The great difficulty lies in the nature of the words, which are not, like pain and pleasure, names of homogeneous real entities, but names of various fictitious entities, for which no common genus is to be found: and which therefore, without a vast and roundabout chain of investigation, can never be brought under any exhaustive plan of arrangement, but must be picked up here and there as they happen to occur.

It may be thought, that in a certain degree of health, this negative account of the matter hardly comes up to the case. In a certain degree health, there is often such a kind of feeling diffused over the whole frame such a comfortable feel, or flow of spirits, as it is called, as may with propriety come under the head of positive pleasure. But without experiencing any such pleasurable feeling, if a man experience no painful one, he may be well enough said to be in health.

The most accurate measure that can be given of a man's strength, seems to be that which is taken from the weight or number of pounds and ounces he can lift with his hands in a given attitude. This indeed relates immediately only to his arms: but these are the organs of strength which are most employed; of which the strength corresponds with most exactness to the general state of the body with regard to strength; and in which the quantum of strength is easiest measured. Strength may accordingly be distinguished into general and particular.

Weakness is a negative term, and imports the absence of strength. It is, besides, a relative term, and accordingly imports the absence of such a quantity of strength as makes the share, possessed by the person in question, less than that of some person he is compared to. Weakness, when it is at such a degree as to make it painful for a man to perform the motions necessary to the going through the ordinary functions of life, such as to get up, to walk, to dress one's self, and so forth, brings the circumstance of health into question, and puts a man into that sort of condition in which he is said to be in ill health.

See B. I. Tit. [Irrep. Corp. Injuries].

See chap. iv. [Value].

When, for instance, having been determined, by the prospect of some inconvenience, not to disclose a fact, although he should be put to the rack, he perseveres in such resolution after the rack is brought into his presence, and even applied to him.

The facility with which children grow tired of their play-things, and throw them away, is an instance of unsteadiness: the perseverance with which a merchant applies himself to his traffic, or an author to his book may be taken for an instance of the contrary. It is difficult to judge of the quantity of pleasure or pain in these cases, but from the effects which it produces in the character of a motive: and even then it is difficult to pronounce, whether the change of conduct happens by the extinction of the old pleasure or pain, or by the intervention of a new one.

See Chapter V. [Pleasures and Pains].

See Chapter V. [Pleasures and Pains].

This is one reason why legislators in general like better to have married people to deal with than single; and people that have children than such as are childless. It is manifest that the stronger and more numerous a man's connexions in the way of sympathy are, the stronger is the hold which the law has upon him. A wife and children are so many pledges a man gives to the world for his good behaviour.

The characteristic circumstances whereby one man's frame of body or mind, considered at any given period, stands distinguished from that of another, have been comprised by metaphysicians and physiologists under the name idiosyncrasy, from , peculiar, and , composition.

Those who maintain, that the mind and the body are one substance may here object, that upon that supposition the distinction between frame of mind and frame of body is but nominal, and that accordingly there is no such thing as a frame of mind distinct from the frame of body. But granting, for argument-sake, the antecedent, we may dispute the consequence. For if the mind be but a part of the body, it is at any rate of a nature very different from the other parts of the body.

A man's frame of body cannot in any part of it undergo any considerable alteration without its being immediately indicated by phenomena discernible by the senses. A man's frame of mind may undergo very considerable alterations, his frame of body remaining the same to all appearance; that is, for any thing that is indicated to the contrary by phenomena cognizable to the senses: meaning those of other men.

Hume's Hist.

The quantity of the sort of pain, which is called grief, is indeed hardly to be measured by any external indications. It is neither to be measured for instance, by the quantity of the tears, nor by the number of moments spent in crying. Indications rather less equivocal may, perhaps, be afforded by the pulse. A man has not the motions of his heart at command as he has those of the muscles of his face. But the particular significancy of these indications is still very uncertain. All they can express is, that the man is affected; they cannot express in what manner, nor from what cause. To an affection resulting in reality from such or such a cause, he may give an artificial colouring, and attribute it to such or such another cause. To an affection directed in reality to such or such a person as its object, he may give an artificial bias, and represent it as if directed to such or such another object. Tears of rage he may attribute to contrition. The concern he feels at the thoughts of a punishment that awaits him, he may impute to a sympathetic concern for the mischief produced by his offense.

A very tolerable judgment, however, may commonly be formed by a discerning mind, upon laying all the external indications exhibited by a man together, and at the same time comparing them with his actions.

A remarkable instance of the power of the will, over the external indications of sensibility, is to be found in Tacitus's story of the Roman soldier, who raised a mutiny in the camp, pretending to have lost a brother by the lawless cruelty of the General. The truth was, he never had had a brother.

The ways in which a religion may lessen a man's means, or augment his wants, are various. Sometimes it will prevent him from making a profit of his money: sometimes from setting his hand to labour. Sometimes it will oblige him to buy dearer food instead of cheaper: sometimes to purchase useless labour: sometimes to pay men for not labouring: sometimes to purchase trinkets, on which imagination alone has set a value: sometimes to purchase exemptions from punishment, or titles to felicity in the world to come.

This is far from being a visionary proposal, not reducible to practice. I speak from experience, having actually drawn up such an estimate, though upon the least commodious of the two plans, and before the several circumstances in question had been reduced to the precise number and order in which they are here enumerated. This is a part of the matter destined for another work. See ch. xiii. [Cases unmeet], par. 2. Note. There are some of these circumstances that bestow particular denominations on the persons they relate to: thus, from the circumstance of bodily imperfections, persons are denominated deaf, dumb, blind, and so forth: from the circumstance of insanity, idiots, and maniacs: from the circumstance of age, infants: for all which classes of persons particular provision is made in the Code. See B. I. tit. [Exemptions]. Persons thus distinguished will form so many articles in the catalogus personarum privilegiatarum. See Appendix. tit. [Composition].

As to a man's pecuniary circumstances, the causes on which those circumstances depend, do not come all of them under the same class. The absolute quantum of a man's property does indeed come under the same class with his pecuniary circumstances in general: so does the profit he makes from the occupation which furnishes him with the means of livelihood. But the occupation itself concerns his own person, and comes under the same head as his habitual amusements: as likewise his habits of expense: his connexions in the ways of profit and of burthen, under the same head as his connexions in the way of sympathy: and the circumstances of his present demand for money, and strength of expectation, come under the head of those circumstances relative to his person which regard his affections.

Or of importance.

In certain cases the consequences of an act may be material by serving as evidences indicating the existence of some other material fact, which is even antecedent to the act of which they are the consequences: but even here, they are material only because, in virtue of such their evidentiary quality, they have an influence, at a subsequent period of time, in the production of pain and pleasure: for example, by serving as grounds for conviction, and thence for punishment. See tit. [Simple Falsehoods], verbo [material].

What follows, relative to the subject of punishment, ought regularly to be preceded by a distinct chapter on the ends of punishment. But having little to say on that particular branch of the subject, which has not been said before, it seemed better, in a work which will at any rate be but too voluminous, to omit this title, reserving it for another, hereafter to be published, intituled The Theory of Punishment.* To the same work I must refer the analysis of the several possible modes of punishment, a particular and minute examination of the nature of each, and of its advantages and disadvantages, and various other disquisitions, which did not seem absolutely necessary to be inserted here. A very few words, however, concerning the ends of punishment, can scarcely be dispensed with.

The immediate principal end of punishment is to control action. This action is either that of the offender, or of others: that of the offender it controls by its influence, either on his will, in which case it is said to operate in the way of reformation; or on his physical power, in which case it is said to operate by disablement: that of others it can influence otherwise than by its influence over their wills, in which case it is said to operate in the way of example. A kind of collateral end, which it has a natural tendency to answer, is that of affording a pleasure or satisfaction to the party injured, where there is one, and, in general, to parties whose ill-will whether on a self-regarding account, or on the account of sympathy or antipathy, has been excited by the offense. This purpose, as far as it can be answered gratis, is a beneficial one. But no punishment ought to be allotted merely to this purpose, because (setting aside its effects in the way of control) no such pleasure is ever produced by punishment as can be equivalent to the pain. The punishment, however, which is allotted to the other purpose, ought, as far as it can be done without expense, to be accommodated to this. Satisfaction thus administered to a party injured, in the shape of a dissocial pleasure,** may be styled a vindictive satisfaction or compensation: as a compensation, administered in the shape of self-regarding profit, or stock of pleasure, may be styled a lucrative one. See B. I. tit. vi. [Compensation]. Example is the most important end of all, in proportion as the number of the persons under temptation to offend is to one.

• This is the work which, from the Author's papers, has since been published by Mr. Dumont in French, in company with The Theory of Reward added to it, for the purpose of mutual illustration. It is in contemplation to publish them both in English, from the Author's manuscripts, with the benefit of any amendments that have been made by Mr. Dumont. [Note to the Edition of 1823.]

** See ch. x. [Motives].

See B. I. tit. [Justifications].

See supra, ch. iv. [Value].

See Book I. tit. [Justifications].

This, for example, seems to have been one ground, at least, of the favour shown by perhaps all systems of laws, to such offenders as stand upon a footing of responsibility: shown, not directly indeed to the persons themselves; but to such offenses as none but responsible persons are likely to have the opportunity of engaging in. In particular, this seems to be the reason why embezzlement, in certain cases, has not commonly been punished upon the footing of theft: nor mercantile frauds upon that of common sharping.*

• See tit. [Simple merc. Defraudment].

See B. II. Appendix, tit. iii. [Promulgation].

Notwithstanding what is here said, the cases of infancy and intoxication (as we shall see hereafter) cannot be looked upon in practice as affording sufficient grounds for absolute impunity. But this exception in point of practice is no objection to the propriety of the rule in point of theory. The ground of the exception is neither more nor less than the difficulty there is of ascertaining the matter of fact: viz. whether at the requisite point of time the party was actually in the state in question; that is, whether a given case comes really under the rule. Suppose the matter of fact capable of being perfectly ascertained, without danger or mistake. the impropriety of punishment would be as indubitable in these cases as in any other.*

The reason that is commonly assigned for the establishing an exemption from punishment in favour of infants, insane persons, and persons under intoxication, is either false in fact, or confusedly expressed. The phrase is that the will of these persons concurs not with the act; that they have no vicious will; or, that they have not the free use of their will. But suppose all this to be true? What is it to the purpose? Nothing: except in as far as it implies the reason given in the text.

• See B. I. tit. iv. [Exemptions]. and tit. vii. [Extenuations].

See ch. viii. [Intentionality].

See ch. ix. [Consciousness].

The influences of the moral and religious sanctions, or, in other words, of the motives of love of reputation and religion, are other causes, the force of which may, upon particular occasions, come to be greater than that of any punishment which the legislator is able, or at least which he will think proper, to apply. These, therefore, it will be proper for him to have his eye upon. But the force of these influences is variable and different in different times and places: the force of the foregoing influences is constant and the same, at all times and every where. These, therefore, it can never be proper to look upon as safe grounds for establishing absolute impunity: owing (as in the above-mentioned cases of infancy and intoxication) to the impracticability of ascertaining the matter of fact.

See ch. v. [Pleasures and Pains].

See ch. xii. [Consequences].

By offences I mean, at present, acts which appear to him to have a tendency to produce mischief.

The same rules (it is to be observed) may be applied, with little variation, to rewards as well as punishment: in short, to motives in general, which, according as they are of the pleasurable or painful kind, are of the nature of reward or punishment: and, according as the act they are applied to produce is of the positive or negative kind, are styled impelling or restraining. See ch. x. [Motives] xliii.

By the profit of an offense, is to be understood, not merely the pecuniary profit, but the pleasure or advantage, of whatever kind it be, which as a man reaps, or expects to reap, from the gratification of the desire which prompted him to engage in the offense.*

It is the profit (that is, the expectation of the profit) of the offence that constitutes the impelling motive, or, where there are several, the sum of the impelling motives, by which a man is prompted to engage in the offense. It is the punishment, that is, the expectation of the punishment, that constitutes the restraining motive, which, either by itself, or in conjunction with others, is to act upon him in a contrary direction, so as to induce him to abstain from engaging in the offense. Accidental circumstances apart, the strength of the temptation is as the force of the seducing, that is, of the impelling motive or motives. To say then, as authors of great merit and great name have said, that the punishment ought not to increase with the strength of the temptation, is as much as to say in mechanics, that the moving force or momentum of the power need not increase in proportion to the momentum of the burthen.

• See ch. x. [Motives] 1.

Beccaria, dei diletti, 6. id. trad. par. Morellet, 23.

See ch. xi. [Dispositions] xxix.

It is a well-known adage, though it is to be hoped not a true one, that every man has his price. It is commonly meant of a man's virtue. This saying, though in a very different sense, was strictly verified by some of the Anglo-Saxon laws: by which a fixed price was set, not upon a man's virtue indeed, but upon his life: that of the sovereign himself among the rest. For 200 shillings you might have killed a peasant: for six times as much, a nobleman: for six-and-thirty times as much you might have killed the king.* A king in those days was worth exactly 7,200 shillings. If then the heir to the throne, for example, grew weary of waiting for it, he had a secure and legal way of gratifying his impatience: he had but to kill the king with one hand, and pay himself with the other, and all was right. An earl Godwin, or a duke Streon, could have bought the lives of a whole dynasty. It is plain, that if ever a king in those days died in his bed, he must have had something else, besides this law, to thank for it. This being the production of a remote and barbarous age, the absurdity of it is presently recognised: but, upon examination, it would be found, that the freshest laws of the most civilised nations are continually falling into the same error.** This, in short, is the ease wheresoever the punishment is fixed while the profit of delinquency is indefinite: or, to speak more precisely, where the punishment is limited to such a mark, that the profit of delinquency may reach beyond it.

• Wilkins Leg. Anglo-Sax. p, 71, 72. See Hume, Vol. 1. App. 1. p. 219.

** See in particular the English Statue laws throughout, Bonaparte's Penal Code, and the recently enacted or not enacted Spanish Penal Code.—Note by the Author, July 1822.

See ch. xiii. [Cases unmeet], 1.

See ch. xi. [Dispositions], xlii.

For example, if it can ever be worth while to be at the expense of so horrible a punishment as that of burning alive, it will be more so in the view of preventing such a crime as that of murder or incendiarism, than in the view of preventing the uttering of a piece of bad money. See B. I. tit. [Defraudment touching the Coin] and [Incendiarism].

Espr. des Loix, L. vi. c. 16.

If any one have any doubt of this, let him conceive the offence to be divided into as many separate offenses as there are distinguishable parcels of mischief that result from it. Let it consist, for example, in a man's giving you ten blows, or stealing from you ten shillings. If then, for giving you ten blows, he is punished no more than for giving you five, the giving you five of these ten blows is an offense for which there is no punishment at all: which being understood, as often as a man gives you five blows, he will be sure to give you five more, since he may have the pleasure of giving you these five for nothing. In like manner, if for stealing from you ten shillings, he is punished no more than for stealing five, the stealing of the remaining five of those ten shillings is an offense for which there is no punishment at all. This rule is violated in almost every page of every body of laws I have ever seen.

The profit, it is to be observed, though frequently, is not constantly, proportioned to the mischief: for example, where a thief, along with the things he covets, steals others which are of no use to him. This may happen through wantonness, indolence, precipitation, &c. &c.

See ch. vi. [Sensibility].

See ch. iv. [Value].

It is for this reason, for example, that simple compensation is never looked upon as sufficient punishment for theft or robbery.

A punishment may be said to be calculated to answer the purpose of a moral lesson, when, by reason of the ignominy it stamps upon the offense, it is calculated to inspire the public with sentiments of aversion towards those pernicious habits and dispositions with which the offense appears to be connected; and thereby to inculcate the opposite beneficial habits and dispositions.

It is this, for example, if any thing, that must justify the application of so severe a punishment as the infamy of a public exhibition, hereinafter proposed, for him who lifts up his hand against a woman, or against his father. See B. I. tit. [Simp. corporal injuries].

It is partly on this principle, I suppose, that military legislators have justified to themselves the inflicting death on the soldier who lifts up his hand against his superior officer.

See ch. xiii. [Cases unmeet], 4.

See B. II. tit. [Purposes], Append. tit. [Composition].

Notwithstanding this rule, my fear is, that in the ensuing model, I may be thought to have carried my endeavours at proportionality too far. Hitherto scarce any attention has been paid to it. Montesquieu seems to have been almost the first who has had the least idea of any such thing. In such a matter, therefore, excess seemed more eligible than defect. The difficulty is to invent: that done, if any thing seems superfluous, it is easy to retrench.

See B. I. tit. [Punishments].

See Append. tit. [Promulgation].

There are few madmen but what are observed to be afraid of the strait waistcoat.

See ch. xii. [Consequences], xxxiii.

By the English law, there are several offenses which are punished by a total forfeiture of moveables, not extending to immoveables. This is the case with suicide, and with certain species of theft and homicide. In some cases, this is the principal punishment: in others, even the only one. The consequence is, that if a man's fortune happens to consist in moveables, he is ruined; if in immoveables, he suffers nothing.

See View of the Hard-Labour Bill, Lond. 1778, p. 100.

For the idea of this property, I must acknowledge myself indebted to an anonymous letter in the St. James's Chronicle, of the 27th of September 1777; the author of which is totally unknown to me. If any one should be disposed to think lightly of the instruction, on recount of the channel by which it was first communicated, let him tell me where I can find an idea more ingenious or original.

See Montesq. Esp. des Loix, L. xii. ch. iv. He seems to have the property of characteristicalness in view; but that the idea he had of it was very indistinct, appears from the extravagant advantages he attributes to it.

See ch. vii. [Actions], iii.

Besides this, there are a variety of other ways in which the punishment may bear an analogy to the offence. This will be seen by looking over the table of punishments.

See ch. xiii. [Cases unmeet] 1, 2. note.

Ib. 4. par. iii.

See B. I. tit. [Punishments].

See B. II. tit. [Execution].

Ch. xiii. [Cases unmeet], par. iii.

Ib. note.

See ch. xiii. [Cases unmeet], par. ii. note.

See ch. x. [Motives].

See B. I. tit. [Offences against Justice].

See B. I. tit. [Punishments].

The property of characteristicalness, therefore, is useful in a mode of punishment in three different ways: 1. It renders a mode of punishment, before infliction, more easy to be borne in mind: 2. It enables it, especially after infliction, to make the stronger impression, when it is there; that is, renders it the more exemplary: 3. It tends to render it more acceptable to the people, that is, it renders it the more popular.

See ch. xiii. [Cases unmeet], v.

See ch. xiii. [Cases unmeet], iv. par. iv.

See View of the Hard Labour Bill, p. 109.

See ch. xiii. [Cases unmeet], ii. note.

This chapter is an attempt to put our ideas of offences into an exact method. The particular uses of method are various: but the general one is, to enable men to understand the things that are the subjects of it. To understand a thing, is to be acquainted with its qualities or properties. Of these properties, some are common to it with other things; the rest, peculiar. But the qualities which are peculiar to any one sort of thing are few indeed, in comparison with those which are common to it with other things. To make it known in respect of its difference, would therefore be doing little, unless it were made known also by its genus. To understand it perfectly, a man must therefore be informed of the points in which it agrees as well as of those in which it disagrees, with all other things. When a number of objects, composing a logical whole, are to be considered together all of these possessing with respect to one another a certain congruency or agreement denoted by a certain name, there is but one way of giving a perfect knowledge of their nature; and that is, by distributing them into a system of parcels, each of them a part, either of some other parcel, or, at any rate, of the common whole. This can only be done in the way of bipartition, dividing each superior branch into two, and but two, immediately subordinate ones; beginning with the logical whole, dividing that into two parts, then each of those parts into two others; and so on. These first-distinguished parts agree in respect of those properties which belong to the whole: they differ in respect of those properties which are peculiar to each. To divide the whole into more than two parcels at once, for example into three, would not answer the purpose; for, in fact, it is but two objects that the mind can compare together exactly at the same time. Thus then, let us endeavour to deal with offences; or rather, strictly speaking, with acts which possess such properties as seem to indicate them fit to be constituted offences. The task is arduous, and as yet at least, perhaps for ever, above our force. There is no speaking of objects but by their names: but the business of giving them names has always been prior to the true and perfect knowledge of their natures. Objects the most dissimilar have been spoken of and treated as if their properties were the same. Objects the most similar have been spoken of and treated as if they had scarce anything in common. Whatever discoveries may be made concerning them, how different soever their congruencies and disagreements may be found to be from those which are indicated by their names, it is not without the utmost difficulty that any means can be found out of expressing those discoveries by a conformable set of names. Change the import of the old names, and you are in perpetual danger of being misunderstood: introduce an entire new set of names, and you are sure not to be understood at all. Complete success then, is, as yet at least, unattainable. But an attempt, though imperfect, may have its use: and, at the worst, it may accelerate the arrival of that perfect system, the possession of which will be the happiness of some maturer age. Gross ignorance descries no difficulties; imperfect knowledge finds them out, and struggles with them: it must be perfect knowledge that overcomes them.

See ch. xiii. [Cases unmeet], ii. 1.

That is, either by name, or at least by description, in such manner as to be sufficiently distinguished from all others; for instance, by the circumstance of being the owner or occupier of such and such goods. See B. I. tit. [Personation], supra, ch. xii. [Consequences], xv.

With regard to offences against a class or neighbourhood, it is evident, that the fewer the individuals are, of which such class is composed, and the narrower that neighbourhood is, the more likely are the persons, to whom the offense is detrimental, to become assignable, insomuch that, in some cases, it may be difficult to determine concerning a given offense, whether it be an offense against individuals, or against a class or neighbourhood. It is evident also, that the larger the class or neighbourhood is, the more it approaches to a coincidence with the great body of the state. The three classes, therefore, are liable to a certain degree, to run into one another, and be confounded. But this is no more than what is the case, more or less, with all those ideal compartments under which men are wont to distribute objects for the convenience of discourse.

See ch. vii. [Actions], xiii.

1. Offences by falsehood: 2. Offenses against trust. See also par. xx. to xxx. and par. lxvi. Maturer views have suggested the feasibility, and the means, of ridding the system of this anomalous excrescence. Instead of considering these as so many divisions of offences, divided into genera a correspondent and collateral to the several genera distinguished by other appellations, they may be considered as so many specific differences, respectively applicable to those genera. Thus, in the case of a simple personal injury, in the operation of which a plan of falsehood has been employed: it seems more simple and more natural, to consider the offense thus committed as a particular species or modification of the genus of offence termed a simple personal injury, than to consider the simple personal injury, when effected by such means, as a modification of the division of offences entitled Offences through falsehood. By this means the circumstances of the intervention of falsehood as an instrument, and of the existence of a particular obligation of the nature of a trust, will be reduced to a par with various other classes of circumstances capable of affording grounds of modification commonly of aggravation or extenuation, to various genera of offences: instance, Premeditation, and conspiracy, on the one hand; Provocation received, and intoxication, on the other. This class will appear, but too plainly, as a kind of botch in comparison of the rest. But such is the fate of science and more particularly of the moral branch; the distribution of things must in a great measure be dependent on their names: arrangement, the work of mature rejection, must be ruled by nomenclature, the work of popular caprice.

In the book of the laws, offences must therefore be treated of as much as possible under their accustomed names. Generical terms, which are in continual use, and which express ideas for which there are no other terms in use, cannot safely be discarded. When any such occur, which cannot be brought to quadrate with such a plan of classification as appears to be most convenient upon the whole, what then is to be done? There seems to be but one thing, which is, to retain them, and annex them to the regular part of the system in the form of an appendix. Though they cannot, when entire, be made to rank under any of the classes established in the rest of the system, the divisions to which they give title may be broken down into lesser divisions, which may not be alike intractable. By this means, how discordant soever with the rest of the system they may appear to be at first sight, on a closer inspection they may be found conformable.

This must inevitably be the case with the names of offences, which are so various and universal in their nature, as to be capable, each of them of doing whatever mischief can be done by any other kind or kinds of offences whatsoever. Offences of this description may well be called anomalous.

Such offences, it is plain, cannot but show themselves equally intractable under every kind of system. Upon whatever principle the system be constructed, they cannot, any of them, with any degree of propriety, be confined to any one division. If, therefore, they constitute a blemish in the present system, it is such a blemish as could not be avoided but at the expense of a greater. The class they are here thrown into will traverse, in its subordinate ramifications, the other classes and divisions of the present system: true, but so would they of any other. An irregularity, and that but a superficial one, is a less evil than continual error and contradiction. But even this slight deviation, which the fashion of language seemed to render unavoidable at the outset, we shall soon find occasion to correct as we advance. For though the first great parcels into which the offences of this class are divided are not referable, any of them, to any of the former classes, yet the subsequent lesser subdivisions are.

See ch. vii. [Actions], iii. and xxiii.

If, by reason of the word relation, this part of the division should appear obscure, the unknown term may be got rid of in the following manner. Our ideas are derived, all of them, from the senses; pleasurable and painful ones, therefore, among the rest: consequently, from the operation of sensible objects upon our senses. A man's happiness, then, may be said to depend more or less upon the relation he bears to any sensible object, when such object is in a way that stands a chance, greater or less, of producing to him, or averting from him, pain or pleasure. Now this, if at all, it must do in one or other of two ways; 1. In an active way, properly so called; viz. by motion: or, 2. In a passive or quiescent way, by being moved to, or acted upon: and in either case, either, 1. in an immediate way, by acting upon, or being acted on by, the organs of sense, without the intervention of any other external object: or, 2. in a more or less remote way, by acting upon, or being acted on by, some other external object, which (with the intervention of a greater or less number of such objects, and at the end of more or less considerable intervals of time) will come at length to act upon, or be acted upon by, those organs. And this is equally true, whether the external objects in question be things or persons. It is also equally true of pains and pleasures of the mind, as of those of the body: all the difference is, that in the production of these, the pleasure or pain may result immediately from the perception which it accompanies: in the production of those of the mind, it cannot result from the action of an object of sense any otherwise than by association; to wit, by means of some connection which the perception has contracted with certain prior ones, lodged already in the memory.*

• See ch. v. [Pleasures and Pains], xv, xxxi. Ch. x. [Motives], xxxviii, note.

See ch. x. [Motives].

Subsequent consideration has here suggested several alterations. The necessity of adding to property, power, in the character of a distinguishable as well as valuable object or subject-matter of possession, has presented itself to view: and in regard to the fictitious entity here termed condition (for shortness instead of saying condition in life), it has been observed to be a sort of composite object, compounded of property, reputation, power and right to services. For this composite object the more proper place was therefore at the tail of the several simple ones.—Note by the Editor, July, 1822.

Supra, iv. note.

See ch. xii. [Consequences].

See ch. viii. [Intentionality].

See B. I. tit. [Semi-public offences]. In the mean time that of pestilence may serve as an example. A man, without any intention of giving birth to such a calamity, may expose a neighbourhood to the danger of it, by breaking quarantine or violating any of those other preventive regulations which governments, at certain conjunctures, may find it expedient to have recourse to, for the purpose of guarding against such danger.

See ch. xiii. [Cases unmeet], iv.

In this part of the analysis, I have found it necessary to deviate in some degree from the rigid rules of the exhaustive method I set out with. By me, or by some one else, this method may, perhaps, be more strictly pursued at some maturer period of the science. At present, the benefit that might result from the unrelaxed observance of it, seemed so precarious that I could not help doubting whether it would pay for the delay and trouble. Doubtless such a method is eminently instructive: but the fatigue of following it out is so great, not only to the author, but probably also to the reader, that carried to its utmost length at the first attempt, it might perhaps do more disservice in the way of disgust, than service in the way of information. For knowledge, like physic, how salutary soever in itself, becomes no longer of any use, when made too unpalatable to be swallowed. Mean time, it cannot but be a mortifying circumstance to a writer, who is sensible of the importance of his subject, and anxious to do it justice, to find himself obliged to exhibit what he perceives to be faulty, with any view, how indistinct soever, of something more perfect before his eyes. If there be any thing new and original in this work, it is to the exhaustive method so often aimed at that I am indebted for it. It will, therefore, be no great wonder if I should not be able to quit it without reluctance. On the other hand, the marks of stiffness which will doubtless be perceived in a multitude of places, are chiefly owing to a solicitous, and not perfectly successful, pursuit of this same method. New instruments are seldom handled at first with perfect ease.

The idea of government, it may be observed, is introduced here without any preparation. The fact of its being established, I assume as notorious, and the necessity of it as alike obvious and incontestable. Observations indicating that necessity, if any such should be thought worth looking at in this view, may be found by turning to a passage in a former chapter, where they were incidentally adduced for the purpose of illustration. See. Ch. xii. [Consequences], xvii.

See infra, liv. note. Even this head, ample as it is, and vague as it may seem to be, will not, when examined by the principle of utility, serve, any more than another, to secrete any offence which has no title to be placed there. To show the pain or loss of pleasure which is likely to ensue, is a problem, which before a legislator can justify himself in adding the act to the catalogue of offences, he may in this case, as in every other, be called upon to solve.

For examples, see infra, liv. note. This branch of the business of government, a sort of work of supererogation, as it may be called, in the calendar of political duty, is comparatively but of recent date. It is not for this that the untutored many could have originally submitted themselves to the dominion of the few. It was the dread of evil, not the hope of good that first cemented societies together. Necessaries come always before luxuries. The state of language marks the progress of ideas. Time out of mind the military department has had a name: so has that of justice: the power which occupies itself in preventing mischief, not till lately, and that but a loose one, the police: for the power which takes for its object the introduction of positive good, no peculiar name, however inadequate, seems yet to have been devised.

The functions of justice, and those of the police, must be apt in many points to run one into another: especially as the business would be very badly managed if the same persons, whose more particular duty it is to act as officers of the police, were not upon occasion to act in the capacity of officers of justice. The ideas, however, of the two functions may still be kept distinct: and I see not where the line of separation can be drawn, unless it be as above.

As to the word police, though of Greek extraction, it seems to be of French growth: it is from France, at least, that it has been imported into Great Britain, where it still retains its foreign garb: in Germany, if it did not originate there, it has at least been naturalized. Taken all together, the idea belonging to it seems to be too multifarious to be susceptible of any single definition. Want of words obliged me to reduce the two branches here specified into one. Who would have endured in this place to have seen two such words as the phthano-paranomic or crime-preventing, and the phthano-symphoric or calamity-preventing, branches of the police? the inconveniences of uniting the two branches under the same denomination, are, however, the less, inasmuch as the operations requisite to be performed for the two purposes will in many cases be the same. Other functions, commonly referred to the head of police, may be referred either to the head of that power which occupies itself in promoting in a positive way the increase of the national felicity, or of that which employs itself in the management of the public wealth. See infra, liv. note.

It is from abroad that those pernicious enterprises are most apt to originate, which come backed with a greater quantity of physical force than the persons who are in a more particular sense the officers of justice are wont to have at their command. Mischief the perpetration of which is ensured by a force of such magnitude, may therefore be looked upon in general as the work of external adversaries. Accordingly, when the persons by whom it is perpetrated are in such force as to bid defiance to the ordinary efforts of justice, they loosen themselves from their original denomination in proportion as they increase in force, till at length they are looked upon as being no longer members of the state, but as standing altogether upon a footing with external adversaries. Give force enough to robbery, and it swells into rebellion: give permanence enough to rebellion, and it settles into hostility.

It must be confessed, that in common speech the distinction here established between the public wealth and the national wealth is but indifferently settled: nor is this to be wondered at; the ideas themselves, though here necessary to be distinguished, being so frequently convertible. But I am mistaken if the language will furnish any other two words that would express the distinction better. Those in question will, I imagine, be allowed to be thus far well chosen, that if they were made to change their places, the import given to them would not appear to be quite so proper as that which is given to them as they stand at present.

I should have been afraid to have said necessarily. In the United Provinces, in the Helvetic, or even in the Germanic body, where is that one assembly in which an absolute power over the whole resides? where was there in the Roman Commonwealth? I would not undertake for certain to find an answer to all these questions.

See par. xvii. with regard to justice.

It may be observed, that upon this occasion I consider religion in no other light, than in respect of the influence it may have on the happiness of the present life. As to the effects it may have in assuring us of and preparing us for a better life to come, this is a matter which comes not within the cognizanoe of the legislator. See tit. [Offences against religion].

I say offences against religion, the fictitious entity: not offences against God, the real being. For, what sort of pain should the act of a feeble mortal occasion to a being unsusceptible of pain? How should an offence affect him? Should it be an offence against his person, his property, his reputation, or his condition?

It has commonly been the way to put offences against religion foremost. The idea of precedence is naturally enough connected with that of reverence. . But for expressing reverence, there are other methods enough that are less equivocal. And in point of method and perspicuity it is evident, that with regard to offences against religion, neither the nature of the mischief which it is their tendency to produce, nor the reason there may be for punishing them, can be understood, but from the consideration of the several mischiefs which result from the several other sorts of offences. In a political view, it is only because those others are mischievous, that offences against religion are so too.

This division of falsehoods, it is to be observed, is not regularly drawn out: that being what the nature of the case will not here admit of. Falsehood may be infinitely diversified in other ways than these. In a particular case, for instance, simple falsehood when uttered by writing, is distinguished from the same falsehood when uttered by word of mouth, and has had a particular name given to it accordingly. I mean, where it strikes against reputation, in which case, the instrument it has been uttered by has been called a libel. Now it is obvious, that in the same manner it might have received a distinct name in all other cases where it is uttered by writing. But there has not happened to be any thing in particular that has disposed mankind in those cases to give it such a name. The case is, that among the infinity of circumstances by which it might have been diversified, those which constitute it a libel, happen to have engaged a peculiar share of attention on the part of the institutors of language; either in virtue of the influence which these circumstances have on the tendency of the act, or in virtue of any particular degree of force with which on any other account they may have disposed it to strike upon the imagination.

See B. I. tit. [Falsehoods].

There are two other circumstances still more material; viz. 1. The parties whose interest is affected by the falsehood: 2. The point or article in which that interest is affected. These circumstances, however, enter not into the composition of the generical character. Their use is, as we shall see, to characterize the several species of each genus. See B. I. tit. [Falsehoods].

Ibid.

Powers, though not a species of rights (for the two sorts of fictitious entities, termed a power and a right, are altogether disparate) are yet so far included under rights, that wherever the word power may be employed, the word right may also be employed: The reason is, that wherever you may speak of a person as having a power, you may also speak of him as having a right to such power: but the converse of this proposition does not hold good: there are cases in which, though you may speak of a man as having a right, you cannot speak of him as having a power or in any other way make any mention of that word. On various occasions you have a right for instance, to the services of the magistrate: but if you are a private person, you have no power over him: all the power is on his side. This being the case, as the word right was employed, the word power might perhaps, without any deficiency in the sense, have been omitted. On the present occasion however, as in speaking of trusts this word is commonly made more use of than the word right, it seemed most eligible, for the sake of perspicuity, to insert them both.

It may be expected that, since the word trust has been here expounded, the words power and right, upon the meaning of which the exposition of the word trust is made to depend, should be expounded also: and certain it is, that no two words can stand more in need of it than these do. Such exposition I accordingly set about to give, and indeed have actually drawn up: but the details into which I found it necessary to enter for this purpose, were of such length as to take up more room than could consistently be allotted to them in this place. With respect to these words, therefore, and a number of others, such as possession, title, and the like, which in point of import are inseparably connected with them, instead of exhibiting the exposition itself, I must content myself with giving a general idea of the plan which I have pursued in framing it: and as to every thing else, I must leave the import of them to rest upon whatever footing it may happen to stand upon in the apprehension of each reader. Power and right, and the whole tribe of fictitious entities of this stamp, are all of them, in the sense which belongs to them in a book of jurisprudence, the results of some manifestation or other of the legislator's will with respect to such or such an act. Now every such manifestation is either a prohibition, a command, or their respective negations; viz. a permission, and the declaration which the legislator makes of his will when on any occasion he leaves an act uncommanded. Now, to render the expression of the rule more concise, the commanding of a positive act may be represented by the prohibition of the negative act which is opposed to it. To know then how to expound a right, carry your eye to the act which in the circumstances in question would be a violation of that right: the law creates the right by prohibiting that act. Power, whether over a man's own person, or over other persons or over things, is constituted in the first instance by permission: but in as far as the law takes an active part in corroborating it, it is created by prohibition, and by command: by prohibition of such acts (on the part of other persons) as are judged incompatible with the exercise of it; and upon occasion, by command of such acts as are judged to be necessary for the removal of such or such obstacles of the number of those which may occur to impede the exercise of it. For every right which the law confers on one party, whether that party be an individual, a subordinate class of individuals, or the public, it thereby imposes on some other party a duty or obligation. But there may be laws which command or prohibit acts, that is, impose duties, without any other view than the benefit of the agent: these generate no rights: duties, therefore, may be either extra-regarding or self-regarding: extra-regarding have rights to correspond to them: self-regarding, none.

That the exposition of the words power and right must, in order to be correct, enter into a great variety of details, may be presently made appear. One branch of the system of rights and powers, and but one, are those of which property is composed: to be correct, then, it must, among other things, be applicable to the whole tribe of modifications of which property, is susceptible. But the commands and prohibitions, by which the powers and rights that compose those several modifications are created, are so many different forms: to comprise the exposition in question within the compass of a single paragraph, would therefore be impossible: to take as many paragraphs for it as would be necessary, in order to exhibit these different forms, would be to engage in a detail so ample, that the analysis of the several possible species of property would compose only a part of it. This labour, uninviting as it was, I have accordingly undergone: but the result of it, as may well be imagined, seemed too voluminous and minute to be exhibited in an outline like the present. Happily it is not necessary except only for the scientific purpose of arrangement, to the understanding of any thing that need be said on the penal branch of the art of legislation. In a work which should treat of the civil branch of that art, it would find its proper place: and in such a work, if conducted upon the plan of the present one, it would be indispensable. Of the limits which seem to separate the one of these branches from the other, a pretty ample description will be found in the next chapter: from which some further lights respecting the course to be taken for developing the notions to be annexed to the words right and power, may incidentally be collected. See in particular 3 and 4. See also par. lv. of the present chapter.

I might have cut this matter very short, by proceeding in the usual strain, and saying, that a power was a faculty, and that a right was a privilege, and so on, following the beaten track of definition. But the inanity of such a method, in cases like the present, has been already pointed out:* a power is not a—any thing: neither is a right a—any thing: the case is they have neither of them any superior genus: these, together with duty, obligation, and a multitude of others of the same stamp, being of the number of those fictitious entities, of which the import can by no other means be illustrated than by showing the relation which they bear to real ones.

• See Fragment of Government, ch. v. 6. note.

The first of these parties is styled in the law language, as well as in common speech, by the name here given to him. The other is styled, in the technical language of the English law, a cestuy que trust: in common speech, as we have observed, there is, unfortunately, no name for him. As to the law phrase, it is antiquated French, and though complex, it is still elliptical, and to the highest degree obscure. The phrase in full length would run in some such manner as this: cestuy al use de qui le trust est créé: he to whose use the trust or benefit is created. In a particular case a cestuy que trust is called by the Roman law, fidei-commissarius. In imitation of this, I have seen him somewhere or other called in English a fide-committee. This term, however, seems not very expressive. A fide-committee, or, as it should have been, fidei-committee, seems, literally speaking, to mean one who is committed to the good faith of another. Good faith seems to consist in the keeping of a promise. But a trust may be created without any promise in the case. It is indeed common enough to exact a promise, in order the more effectually to oblige a man to do that which he is made to promise he will do. But this is merely an accidental circumstance. A trust may be created without any such thing. What is it that constitutes a legal obligation in any case? A command, express or virtual, together with punishment appointed for the breach of it. By the same means may an obligation be constituted in this case as well as any other. Instead of the word beneficiary, which I found it necessary to adopt, the sense would be better expressed by some such word as beneficiendary (a word analogous in its formation to referendary), were it such an one as the ear could bring itself to endure. This would put it more effectually out of doubt, that the party meant was the party who ought to receive the benefit, whether he actually receives it or no: whereas the word beneficiary might be understood to intimate, that the benefit was actually received: while in offences against trust the mischief commonly is, that such benefit is reaped not by the person it was designed for, but by some other: for instance, the trustee.

It is for shortness' sake that the proposition is stated as it stands in the text. If critically examined, it might be found, perhaps, to be scarcely justifiable by the laws of language. For the fictitious entities, characterised by the two abstract terms, trust and condition, are not subalternate but disparate. To speak with perfect precision, we should say that he who is invested with a trust is, on that account, spoken of as being invested with a condition: viz. the condition of a trustee. We speak of the condition of a trustee as we speak of the condition of a husband or a father.

Infra, lv.

It is to be observed, that in common speech, in the phrase the object of a man's property, the words the object of are commonly left out; and by an ellipsis, which, violent as it is, is now become more familiar than the phrase at length, they have made that part of it which consists of the words a man's property perform the office of the whole. In some cases then it was only on a part of the object that the acts in question might be performed: and to say, on this account, that the object was a man's property, was as much as to intimate that they might be performed on any part. In other cases it was only certain particular acts that might be exercised on the object: and to say of the object that it was his property, was as much as to intimate that any acts whatever might be exercised on it. Sometimes the acts in question were not to be exercised but at a future time nor then, perhaps, but in the case of the happening of a particular event of which the happening was uncertain: and to say of an object that it was his property, was as much as to intimate that the acts in question might be exercised on it at any time. Sometimes the object on which the acts in question were to have their termination, or their commencement, was a human creature: and to speak of one human creature as being the property of another is what would shock the ear every where but where slavery is established, and even there, when applied to persons in any other condition than that of slaves. Among the first Romans, indeed, the wife herself was the property of her husband; the child, of his father; the servant, of his master. In the civilised nations of modern times, the two first kinds of property are altogether at an end: and the last, unhappily not yet at an end, but however verging, it is to be hoped, towards extinction. The husband's property is now the company* of his wife; the father's the guardianship and service of his child; the master's, the service of his servant.

• The consortium, says the English law.

We shall have occasion, a little farther on, to speak of the person in whose hands the trust exists, under the description of the person who possesses, or is in possession of it and thence of the possession of the trust abstracted from the consideration of the possessor. However different the expression, the import is in both cases the same. So irregular and imperfect is the structure of language on this head, that no one phrase can be made to suit the idea on all the occasions on which it is requisite it should be brought to view: the phrase must be continually shifted, or new modified: so likewise in regard to conditions, and in regard to property. The being invested with, or possessing a condition; the being in possession of an article of property, that is if the object of the property be corporeal; the having a legal title (defeasible or indefeasible) to the physical possession of it, answers to the being in possession of a trust, or the being the person in whose hands a trust exists. In like manner, to the exercise of the functions belonging to a trust, or to a condition, corresponds the enjoyment of an article of property; that is, if the object of it be corporeal, the occupation. These verbal discussions are equally tedious and indispensable. Striving to cut a new road through the wilds of jurisprudence, I find myself continually distressed, for want of tools that are fit to work with. To frame a complete set of new ones is impossible. All that can be done is, to make here and there a new one in cases of absolute necessity, and for the rest, to patch up from time to time the imperfections of the old.

As to the bipartition which this paragraph sets out with, it must be acknowledged not to be of the nature of those which to a first glance afford a sort of intuitive proof of their being exhaustive. There is not that marked connection and opposition between the terms of it, which subsists between contradictory terms and between terms that have the same common genus. I imagine, however, that upon examination it would be found to be exhaustive notwithstanding: and that it might even be demonstrated so to be. But the demonstration would lead us too far out of the ordinary track of language.

See ch. vii. [Actions], iii.

If advantageous, it will naturally be on account of the powers or rights that are annexed to the trust: if disadvantageous, on account of the duties.

It may seem a sort of anachronism to speak on the present occasion of a trust, condition, or other possession, as one of which it may happen that a man ought or ought not to have had possession given him by the law, for, the plan here set out upon is to give such a view all along of the laws that are proposed, as shall be taken from the reasons which there are for making them: the reason then it would seem should subsist before the law: not the law before the reason. Nor is this to be denied: for, unquestionably, upon the principle of utility, it may be said with equal truth of those operations by which a trust, or any other article of property, is instituted, as of any other operations of the law, that it never can be expedient they should be performed, unless some reason for performing them, deduced from that principle, can be assigned. To give property to one man, you must impose obligation on another: you must oblige him to do something which he may have a mind not to do, or to abstain from doing something which he may have a mind to do: in a word, you must in some way or other expose him to inconvenience. Every such law, therefore, must at any rate be mischievous in the first instance, and if no good effects can be produced to set against the bad, it must be mischievous upon the whole. Some reasons, therefore, in this case, as in every other, there ought to be. The truth is, that in the case before us, the reasons are of too various and complicated a nature to be brought to view in an analytical outline like the present. Where the offence is of the number of those by which person or reputation are affected, the reasons for prohibiting it lie on the surface, and apply to every man alike. But property, before it can be offended against, must be created, and at the instant of its creation distributed, as it were, into parcels of different sorts and sizes, which require to be assigned, some to one man and some to another, for reasons, of which many lie a little out of sight, and which being different in different cases, would take up more room than could consistently be allotted to them here. For the present purpose, it is sufficient if it appear, that for the carrying on of the several purposes of life, there are trusts, and conditions, and other articles of property, which must be possessed by somebody: and that it is not every article that can, nor every article that ought, to be possessed by every body. What articles ought to be created, and to what persons, and in what cases they ought to be respectively assigned, are questions which cannot be settled here. Nor is there any reason for wishing that they could, since the settling them one way or another is what would make no difference in the nature of any offence whereby any party may be exposed, on the occasion of any such institution, to sustain a detriment.

In the former case, it may be observed, the act is of the negative kind: in the latter, it will commonly be of the positive kind.

As to the expression non-investment of trust, I am sensible that it is not perfectly consonant to the idiom of the language: the usage is to speak of a person as being invested (that is clothed) with a trust, not of a trust as of a thing that is itself invested or put on. The phrase at length would be, the non-investment of a person with a trust: but this phrase is by much too long-winded to answer the purpose of an appellative. I saw therefore, no other resource than to venture upon the ellipsis here employed. The ancient lawyers, in the construction of their appellatives, have indulged themselves in much harsher ellipses without scruple. See above, xxv. note. It is already the usage to speak of a trust as a thing that vests, and as a thing that may be divested.

I do not find that this word has yet been received into the English language. In the Latin, however, it is very expressive, and is used in a sense exactly suitable to the sense here given to it. Militiam detrectare, to endeavour to avoid serving in the army, is a phrase not unfrequently met with in the Roman writers.

What is here meant by abuse of trust, is the exercise of a power usurped over strangers, under favour of the powers properly belonging to the trust. The distinction between what is here meant by breach of trust and what is here meant by abuse of trust, is not very steadily observed in common speech: and in regard to public trusts, it will even in many cases be imperceptible. The two offences are, however, in themselves perfectly distinct: since the persons, by whom the prejudice is suffered, are in many cases altogether different. It may be observed, perhaps, that with regard to abuse of trust, there is but one species here mentioned; viz. that which corresponds to positive breach of trust: none being mentioned as corresponding to negative breach of trust. The reason of this distinction will presently appear. In favour of the parties, for whose benefit the trust was created, the trustee is bound to act, and therefore merely by his doing nothing they may receive a prejudice: but in favour of other persons at large he is not bound to act: and therefore it is only from some positive act on his part that any prejudice can ensue to them.

See infra, liv. note; and ch. xviii. [Indirect Legislation].

See ch. xi. [Dispositions], xxix.

To bribe a trustee, as such, is in fact neither more nor less than to suborn him to be guilty of a breach or an abuse of trust. Now subornation is of the number of those accessory offences which every principal offence, one as well as another, is liable to be attended with. See infra, xxxi. note, and B. I. tit. [Accessory offences]. This particular species of subornation however being one that, besides its having a specific name framed to express it, is apt to engage a peculiar share of attention, and to present itself to view in company with other offences against trust, it would have seemed an omission not to have included it in that catalogue.

See ch. vi. [Sensibility] ii.

This chapter is an attempt to put our ideas of offences into an exact method. The particular uses of method are various: but the general one is, to enable men to understand the things that are the subjects of it. To understand a thing, is to be acquainted with its qualities or properties. Of these properties, some are common to it with other things; the rest, peculiar. But the qualities which are peculiar to any one sort of thing are few indeed, in comparison with those which are common to it with other things. To make it known in respect of its difference, would therefore be doing little, unless it were made known also by its genus. To understand it perfectly, a man must therefore be informed of the points in which it agrees as well as of those in which it disagrees, with all other things. When a number of objects, composing a logical whole, are to be considered together all of these possessing with respect to one another a certain congruency or agreement denoted by a certain name, there is but one way of giving a perfect knowledge of their nature; and that is, by distributing them into a system of parcels, each of them a part, either of some other parcel, or, at any rate, of the common whole. This can only be done in the way of bipartition, dividing each superior branch into two, and but two, immediately subordinate ones; beginning with the logical whole, dividing that into two parts, then each of those parts into two others; and so on. These first-distinguished parts agree in respect of those properties which belong to the whole: they differ in respect of those properties which are peculiar to each. To divide the whole into more than two parcels at once, for example into three, would not answer the purpose; for, in fact, it is but two objects that the mind can compare together exactly at the same time. Thus then, let us endeavour to deal with offences; or rather, strictly speaking, with acts which possess such properties as seem to indicate them fit to be constituted offences. The task is arduous, and as yet at least, perhaps for ever, above our force. There is no speaking of objects but by their names: but the business of giving them names has always been prior to the true and perfect knowledge of their natures. Objects the most dissimilar have been spoken of and treated as if their properties were the same. Objects the most similar have been spoken of and treated as if they had scarce anything in common. Whatever discoveries may be made concerning them, how different soever their congruencies and disagreements may be found to be from those which are indicated by their names, it is not without the utmost difficulty that any means can be found out of expressing those discoveries by a conformable set of names. Change the import of the old names, and you are in perpetual danger of being misunderstood: introduce an entire new set of names, and you are sure not to be understood at all. Complete success then, is, as yet at least, unattainable. But an attempt, though imperfect, may have its use: and, at the worst, it may accelerate the arrival of that perfect system, the possession of which will be the happiness of some maturer age. Gross ignorance descries no difficulties; imperfect knowledge finds them out, and struggles with them: it must be perfect knowledge that overcomes them.

In the enumeration of these genera, it is all along to be observed, that offences of an accessory nature are not mentioned; unless it be here and there where they have obtained current names which seemed too much in vogue to be omitted. Accessory offences are those which, without being the very acts from which the mischief in question takes its immediate rise, are, in the way of causality, connected with those acts. See ch. vii. [Actions] xxiv. and B. I. tit. [Accessory offences].

Ch. vii. [Actions] viii.

Of these, and the several other leading expressions which there is occasion to bring to view in the remaining part of this analysis, ample definitions will be found in the body of the work conceived in terminis legis. To give particular references to these definitions, would be encumbering the page to little purpose.

Injurious restrainment at large, and injurious compulsion at large, are here styled simple, in order to distinguish them from confinement, banishment, robbery, and extortion, all which are, in many cases, but so many modifications of one or other of the two first-mentioned offences

To constitute an offence an act of simple injurious restrainment, or simple injurious compulsion, it is sufficient if the influence it exerts be, in the first place, pernicious; in the next place, exerted on the person by the medium of the will: it is not necessary that that part of the person on which it is exerted be the part to which it is pernicious: it is not even necessary that it should immediately be pernicious to either of these parts, though to one or other of them it must be pernicious in the long-run, if it be pernicious at all. An act in which the body, for example, is concerned, may be very disagreeable, and thereby pernicious to him who performs it, though neither disagreeable nor pernicious to his body: for instance, to stand or sit in public with a label on his back, or under any other circumstances of ignominy.

It may be observed, that wrongful menacement is included as well in simple injurious restrainment as in simple injurious compulsion, except in the rare case where the motives by which one man is prevented by another from doing a thing that would have been materially to his advantage, or induced to do a thing that is materially to his prejudice, are of the alluring kind.

Although, for reasons that have been already given (supra xxxi), no complete catalogue, nor therefore any exhaustive view, of either semi-public or self-regarding offences, can be exhibited in this chapter, it may be a satisfaction, however, to the reader, to see some sort of list of them, if it were only for the sake of having examples before his eyes. Such lists cannot any where be placed to more advantage than under the heads of the several divisions of private extra-regarding offences, to which the semi-public and self-regarding offences in question respectively correspond. Concerning the two latter, however, and the last more particularly, it must be understood that all I mean by inserting them here, is to exhibit the mischief, if any, which it is of the nature of them respectively to produce, without deciding upon the question, whether it would be worth while [see ch. xiii. Cases unmeet] in every instance, for the sake of combating that mischief, to introduce the evil of punishment. In the course of this detail it will be observed, that there are several heads of extra-regarding private offences, to which the correspondent heads, either of semi-public or self-regarding offences, or of both, are wanting. The reasons of these deficiencies will probably, in most instances, be evident enough upon the face of them. Lest they should not, they are however specified in the body of the work. They would take up too much room were they to be inserted here.

I. SEMI-PUBLIC OFFENCES through calamity. Calamities, by which the persons or properties of men, or both, are liable to be affected, seem to be as follows: 1. Pestilence or contagion. 2. Famine, and other kinds of scarcity. 3. Mischiefs producible by persons deficient in point of understanding, such as infants, idiots, and maniacs, for want of their being properly taken care of. 4. Mischief producible by the ravages of noxious animals, such as beasts of prey, locusts, &c. &c. 5. Collapsion, or fall of large masses of solid matter, such as decayed buildings, or rocks, or masses of snow. 6. Inundation or submersion. 7. Tempest. 8. Blight. 9. Conflagration. 10. Explosion. In as far as a man may contribute, by any imprudent act of his, to give birth to any of the above calamities, such act may be an offence. In as far as a man may fail to do what is incumbent on him to do towards preventing them, such failure may be an offence.

II. SEMI-PUBLIC OFFENCES of mere delinquency. A whole neighbourhood may be made to suffer, 1. Simple corporal injuries: in other words they may be made to suffer in point of health, by offensive or dangerous trades or manufactures: by selling or falsely puffing off unwholesome medicines or provisions: by poisoning or drying up of springs, destroying of aqueducts, destroying woods, walls, or other fences against wind and rain: by any kinds of artificial scarcity; or by any other calamities intentionally produced. 2. and 3. Simple injurious restrainment, and simple injurious compulsion: for instance, by obliging a whole neighbourhood, by dint of threatening hand-bills or threatening discourses, publicly delivered, to join, or forbear to join, in illuminations, acclamations, outcries, invectives, subscriptions, undertakings, processions, or any other mode of expressing joy or grief, displeasure or approbation, or, in short, in any other course of conduct whatsoever. 4. and 5. Confinement and banishment: by the spoiling of roads, bridges, or ferry-boats: by destroying or unwarrantably pre-occupying public carriages, or houses of accommodation. 6. By menacement: as by incendiary letters, and tumultuous assemblies: by newspapers or hand-bills, denouncing vengeance against persons of particular denominations: for example, against Jews, Catholics, Protestants, Scotchmen, Gascons, Catalonians, &c. 7. Simple mental injuries: as by distressful, terrifying, obscene, or irreligious exhibitions; such as exposure of sores by beggars, exposure of dead bodies, exhibitions or reports of counterfeit witchcrafts or apparitions, exhibition of obscene or blasphemous prints: obscene or blasphemous discourses held in public: spreading false news of public defeats in battle, or of other misfortunes.

III. Self-regarding offences against person. 1. Fasting. Abstinence from venery, self-flagellation, self-mutilation, and other self-denying and self-tormenting practices. 2. Gluttony, drunkenness, excessive venery, and other species of intemperance. 3. Suicide.

I. SEMI-PUBLIC OFFENCES. 1. Calumniation and vilification of particular denominations of persons, such as Jews, Catholics, &c.

II. SELF-REGARDING OFFENCES. 1. Incontinence in females. 2. Incest.

Supra xxvii.

Ib.

See ch. ix. [Consciousness] ii.

The light in which the offense of insolvency is here exhibited, may perhaps at first consideration be apt to appear not only novel but improper. It may naturally enough appear, that when a man owes you a sum of money, for instance, the right to the money is yours already, and that what he withholds from you by not paying you, is not the legal title to it, possession of it, or power over it, but the physical possession of it, or power over it, only. But upon a more accurate examination this will be found not to be the case. What is meant by payment, is always an act of investitive power, as above explained; an expression of an act of the will, and not a physical act: it is an act exercised with relation indeed to the thing said to be paid, but not in a physical sense exercised upon it. A man who owes you ten pounds, takes up a handful of silver to that amount, and lays it down on a table at which you are sitting. If then by words, or gestures, or any means whatever, addressing himself to you, he intimates it to be his will that you should take up the money, and do with it as you please, he is said to have paid you: but if the case was, that he laid it down not for that purpose, but for some other, for instance, to count it and examine it, meaning to take it up again himself, or leave it for somebody else, he has not paid you: yet the physical acts, exercised upon the pieces of money in question, are in both cases the same. Till he does express a will to that purport, what you have is not, properly speaking, the legal possession of the money, or a right to the money, but only a right to have him, or in his default perhaps a minister of justice, compelled to render you that sort of service, by the rendering of which he is said to pay you: that is, to express such will as above-mentioned, with regard to some corporeal article, or other of a certain species, and of value equal to the amount of what he owes you: or, in other words, to exercise in your favour an act of investitive power with relation to some such article

True it is, that in certain cases a man may perhaps not be deemed according to common acceptation, to have paid you, without rendering you a further set of services, and those of another sort: a set of services, which are rendered by the exercising of certain acts of a physical nature upon the very thing with which he is said to pay you: to wit, by transferring the thing to a certain place where you may be sure to find it, and where it may be convenient for you to receive it. But these services, although the obligation of rendering them should be annexed by law to the obligation of rendering those other services in the performance of which the operation of payment properly consists, are plainly acts of a distinct nature: nor are they essential to the operation: by themselves they do not constitute it, and it may be performed without them. It must be performed without them wherever the thing to be transferred happens to be already as much within the reach, physically speaking, of the creditor, as by any act of the debtor it can be made to be.

This matter would have appeared in a clearer light had it been practicable to enter here into a full examination of the nature of property, and the several modifications of which it is susceptible: but every thing cannot be done at once.

Supra xxvi.

Under wrongful withholding of services is included breach of contract: for the obligation to render services may be grounded either on contract, or upon other titles: in other words, the event of a man's engaging in a contract is one out of many other investitive events from which the right of receiving them may take its commencement. See ch. xvii. [Limits], iv.

Were the word services to be taken in its utmost latitude (negative included as well as positive) this one head would cover the whole law. To this place then are to be referred such services only, the withholding of which does not coincide with any of the other offenses, for which separate denominations have been provided.

In the English law, detinue and detainer: detinue applied chiefly to movables; detainer, to immovables. Under detinue and detainer cases are also comprised, in which the offense consists in forbearing to transfer the legal possession of the thing: such oases may be considered as coming under the head of wrongful non-investment. The distinction between mere physical possession and legal possession, where the latter is short-lived and defeasible, seems scarcely hitherto to have been attended to. In a multitude of instances they are confounded under the same expressions. The cause is, that probably under all laws, and frequently for very good reasons, the legal possession, with whatever certainty defeasible upon the event of a trial, is, down to the time of that event, in many cases annexed to the appearance of the physical.

In attempting to exhibit the import belonging to this and other names of offenses in common use, I must be understood to speak all along with the utmost diffidence. The truth is, the import given to them is commonly neither determinate nor uniform: so that in the nature of things, no definition that can be given of them by a private person can be altogether an exact one. To fix the sense of them belongs only to the legislator.

The remaining cases come under the head of usurpation, or wrongful investment of property. The distinction seems hardly hitherto to have been attended to: it turns like another, mentioned above, upon the distinction between legal possession and physical. The same observation may be applied to the case of extortion hereafter following.

Vide supra, xxvii.

Usury, which, if it must be an offense, is an offense committed with consent, that is, with the consent of the party supposed to be injured, cannot merit a place in the catalogue of offenses, unless the consent were either unfairly obtained or unfreely: in the first case, it coincides with defraudment; in the other, with extortion.

I. SEMI-PUBLIC OFFENCES. 1. Wrongful divestment, interception, usurpation, &c. of valuables, which are the property of a corporate body; or which are in the indiscriminate occupation of a neighbourhood; such as parish churches, altars, relics, and other articles appropriated to the purposes of religion: or things which are in the indiscriminate occupation of the public at large; such as mile-stones, market-houses, exchanges, public gardens, and cathedrals. 2. Setting on foot what have been called bubbles or fraudulent partnership, or gaming adventures; propagating false news to raise or sink the value of stocks, or of any other denomination of property.

II. SELF-REGARDING OFFENCES. 1. Idleness. 2. Gaming. 3. Other species of prodigality.

See ch. v. [Pleasures and Pains].

I. SEMI-PUBLIC OFFENCES—none.

II. SELF-REGARDING OFFENCES. 1. Sacrifice of virginity. 2. Indecencies not public.

Supra.

In the technical language of the English law, property so acquired is said to be acquired by duress.

Applied to movables, the circumstance of force has never, at least by the technical part of the language, been taken into account: no such combination of terms as forcible occupation is in current use. The word detinue is applied to movables only: and (in the language of the law) the word forcible has never been combined with it. The word applied to immovables is detainer: this is combined with the word forcible: and what is singular, it is scarcely in use without that word. It was impossible to steer altogether clear of this technical nomenclature, on account of the influence which it has on the body of the language.

I. SEMI-PUBLIC OFFENCES, 1. Incendiarism. 2. Criminal inundation.

II. SELF-REGARDING OFFENSES—none.

Supra, xxv. note.

By the terms connubial and post-connubial, all I mean at present to bring to view is, the mere physical union, apart from the ceremonies and legal engagements that will afterwards be considered as accompanying it.

The vague and undetermined nature of the fictitious entity, called a relation, is, on occasions like the present, apt to be productive of a good deal of confusion. A relation is either said to be borne by one of the objects which are parties to it, to the other, or to subsist between them. The latter mode of phraseology is, perhaps, rather the more common. In such case the idea seems to be, that from the consideration of the two objects there results but one relation, which belongs as it were in common to them both. In some cases, this perhaps may answer the purpose very well: it will not, however, in the present case. For the present purpose it will be necessary we should conceive two relations as resulting from the two objects, and borne, since such is the phrase, by the one of them to or towards the other: one relation borne by the first object to the second: another relation borne by the second object to the first. This is necessary on two accounts: 1. Because for the relations themselves there are in many instances separate names: for example, the relations of guardianship and wardship: in which case, the speaking of them as if they were but one, may be productive of much confusion. 2. Because the two different relationships give birth to so many conditions: which conditions are so far different, that what is predicated and will hold good of the one, will, in various particulars, as we shall see, not hold good of the other.

See ch. xvii. [Limits], iii.

Two persons, who by any means stand engaged to live together, can never live together long, but one of them will choose that some act or other should be done which the other will choose should not be done. When this is the case, how is the competition to be decided? Laying aside generosity and good-breeding, which are the tardy and uncertain fruits of long-established laws, it is evident that there can be no certain means of deciding it but physical power: which indeed is the very means by which family as well as other competitions must have been decided, long before any such office as that of legislator had existence. This then being the order of things which the legislator finds established by nature, how should he do better than to acquiesce in it? The persons who by the influence of causes that prevail every where, stand engaged to live together, are, 1. Parent and child, during the infancy of the latter: 2. Man and wife: 3. Children of the same parents. Parent and child, by necessity: since, if the child did not live with the parent (or with somebody standing in the place of the parent) it could not live at all: husband and wife, by a choice approaching to necessity: children of the same parents, by the necessity of their living each of them with the parents. As between parent and child, the necessity there is of a power on the part of the parent for the preservation of the child supersedes all farther reasoning. As between man and wife, that necessity does not subsist. The only reason that applies to this case is the necessity of putting an end to competition. The man would have the meat roasted, the woman boiled: shall they both fast till the judge comes in to dress it for them? The woman would have the child dressed in green; the man, in blue: shall the child be naked till the judge comes in to clothe it? This affords a reason for giving a power to one or other of the parties: but it affords none for giving the power to the one rather than to the other. How then shall the legislator determine? Supposing it equally easy to give it to either, let him look ever so long for a reason why he should give it to the one rather than to the other, and he may look in vain. But how does the matter stand already? for there were men and wives (or, what comes to the same thing, male and female living together as man and wife) before there were legislators. Looking round him then, he finds almost every where the male the stronger of the two; and therefore possessing already, by purely physical means, that power which he is thinking of bestowing on one of them by means of law. How then can he do so well as by placing the legal power in the same hands which are beyond comparison the more likely to be in possession of the physical? in this way, few transgressions, and few calls for punishment: in the other way, perpetual transgressions, and perpetual calls for punishment. Solon is said to have transferred the same idea to the distribution of state powers. Here then was generalization: here was the work of genius. But in the disposal of domestic power, every legislator, without any effort of genius, has been a Solon. So much for reasons:* add to which, in point of motives,** that legislators seem all to have been of the male sex, down to the days of Catherine. I speak here of those who frame laws, not of those who touch them with a sceptre.

• Social motives: sympathy for the public: love of reputation, &c.

** Self-regarding motives: or social motives, which are social in a less extent: sympathy for persons of a particular description: persons of the same sex.

Supra, note, page 259.

Vide supra, xxvii.

In most civilized nations there is a sort of domestic condition, in which the superior is termed a master, while the inferior is termed sometimes indeed a servant, but more particularly and more frequently an apprentice. In this case, though the superior is, in point of usage, known by no other name than that of a master, the relationship is in point of fact a mixed one, compounded of that of master and that of guardian.

It may seem at first, that a person who is in the condition of a slave, could not have it in his power to engage in such course of proceeding as would be necessary, in order to give him an apparent title to be reckoned among the slaves of another master. But though a slave in point of right, it may happen that he has eloped for instance, and is not a slave in point of fact: or, suppose him a slave in point of fact, and ever so vigilantly guarded, still a person connected with him by the ties of sympathy, might do that for him which, though willing and assenting, he might not be able to do for himself: might forge a deed of donation, for example, from the one master to the other.

Consider them together indeed, take the sum of the two interests, and the case, as we have seen (supra, xl), is then the reverse. That case, it is to be remembered, proceeds only upon the supposition that the two parties are obliged to live together; for suppose it to be at their option to part, the necessity of establishing the power ceases.

Ch. xvii. [Limits], i.

Ch. xiii. [Cases unmeet], iii.

In certain nations, women, whether married or not, have been placed in a state of perpetual wardship: this has been evidently founded on the notion of a decided inferiority in point of intellects on the part of the female sex, analogous to that which is the result of infancy or insanity on the part of the male. This is not the only instance in which tyranny has taken advantage of its own wrong, alleging as a reason for the domination it exercises, an imbecility, which, as far as it has been real, has been produced by the abuse of that very power which it is brought to justify. Aristotle, fascinated by the prejudice of the times, divides mankind into two distinct species, that of freemen, and that of slaves. Certain men were born to be slaves, and ought to be slaves.—Why? Because they are so.

See ch. xvii. [Limits], i.

Supra, xxxv.

Vide supra, xxv.

Vide supra, xl.

This effect it may be thought will not necessarily take place: since a ward may have two guardians. One man then is guardian by right: another man comes and makes himself so by usurpation. This may very well be, and yet the former may continue guardian notwithstanding. How then (it may be asked) is he divested of his guardianship?—The answer is—Certainly not of the whole of it: but, however, of a part of it: of such part as is occupied, if one may so say, that is, of such part of the powers and rights belonging to it as are exercised, by the usurper.

At first view it may seem a solecism to speak of the condition of parentality as one which a man can have need to be invested with. The reason is, that it is not common for any ceremony to be required as necessary to man's being deemed in law the father of such or such a child. But the institution of such ceremony, whether advisable or not, is at least perfectly conceivable. Nor are there wanting cases in which it has actually been exemplified. By an article in the Roman law, adopted by many modern nations, an illegitimate child is rendered legitimate by the subsequent marriage of his parents. If then a priest, or other person whose office it was were to refuse to join a man and woman in matrimony, such refusal, besides being a wrongful non-investment with respect to the two matrimonial conditions, would be a wrongful non-investment of parentality and filiation, to the prejudice of any children who should have been legitimated.

In English we have no word that will serve to express with propriety the person who bears the relation opposed to that of parent. The word child is ambiguous being employed in another sense, perhaps more frequently than in this: more frequently in opposition to a person of full age, an adult, than in correlation to a parent. For the condition itself we have no other word than filiation: an ill-contrived term, not analogous to paternity and maternity: the proper term would have been filiality: the word filiation is as frequently, perhaps, and more consistently, put for the act of establishing a person in the possession of the condition of filiality.

Supra, xl. note.

See ch. xvii. [Limits], iv.

In this case also, if the woman knew not of the prior marriage, it is besides a species of seduction; and, in as far as it affects her, belongs to another division of the offences of this class. Vide supra, xxxvi.

I. SEMI-PUBLIC offenses.—Falsehoods contesting, or offenses against justice destroying, the validity of the marriages of people of certain descriptions: such as Jews, Quakers, Hugonots, &c. &c.

II. SELF-REGARDING offenses.—Improvident marriage on the part of minors.

In pursuance of the plan adopted with relation to semi-public and self-regarding offences, it may here be proper to exhibit such a catalogue as the nature of the design will admit, of the several genera or inferior divisions of public offences.

I. OFFENCES against the EXTERNAL SECURITY of the state. 1. Treason (in favour of foreign enemies). It may be positive or negative (negative consisting, for example, in the not opposing the commission of positive). 2. Espionage (in favour of foreign rivals not yet enemies). 3. Injuries to foreigners at large (including piracy). 4. Injuries to privileged foreigners (such as ambassadors).

II. OFFENCES AGAINST JUSTICE. Offences against judicial trust: viz. Wrongful non-investment of judicial trust, wrongful interception of judicial trust, wrongful divestment of judicial trust, usurpation of judicial trust, wrongful investment of judicial trust, wrongful abdication of judicial trust, wrongful detrectation of judicial trust, wrongful imposition of judicial trust, breach of judicial trust, abuse of judicial trust, disturbance of judicial trust, and bribery in prejudice of judicial trust.

Breach and abuse of judicial trust may be either intentional or unintentional. Intentional is culpable at any rate. Unintentional will proceed either from inadvertence, or from mis-supposal: if the inadvertence be coupled with heedlessness, or the mis-supposal with rashness, it is culpable: if not, blameless. For the particular acts by which the exercise of judicial trust may be disturbed see B. i. tit. [Offences against justice]. They are too multifarious, and too ill provided with names, to be exhibited here.

If a man fails in fulfilling the duties of this trust, and thereby comes either to break or to abuse it, it must be through some deficiency in the three requisite and only requisite endowments, of knowledge, inclination, and power. [See supra, xxvii.] A deficiency in any of those points, if any person be in fault, may proceed either from his own fault, or from the fault of those who should act with or under him. If persons who are in fault are persons invested with judicial trust, the offence comes under the head of breach or abuse of trust: if other persons, under that of disturbance of trust.

The ill effects of any breach, abuse, or disturbance of judicial trust, will consist in the production of some article or articles in the list of the mischiefs which it ought to be the original purpose of judicial procedure to remedy or avert, and of those which it ought to be the incidental purpose of it to avoid producing. These are either primary (that is immediate) or remote: remote are of the 2nd, 3rd, or 4th order, and so on. The primary are those which import actual pain to persons assignable, and are therefore mischievous in themselves: the secondary are mischievous on account of the tendency they have to produce some article or articles in the catalogue of those of the first order; and are therefore mischievous in their effects. Those of the 3rd order are mischievous only on account of the connection they have in the way of productive tendency, as before, with those of the 2nd order: and so on.

Primary inconveniences, which it ought to be the object of procedure to provide against, are, 1. The continuance of the individual offence itself, and thereby the increase as well as continuance of the mischief of it. 2 The continuance of the whole mischief of the individual offence. 3. The continuance of a part of the mischief of the individual offence. 4. Total want of amends on the part of persons injured by the offence. 5. Partial want of amends on the part of persons injured by the offence. 6. Superfluous punishment of delinquents. 7. Unjust punishment of persons accused. 8. Unnecessary labour, expense, or other suffering or danger, on the part of superior judicial officers. 9. Unnecessary labour, expense, or other suffering or danger, on the part of ministerial or other subordinate judicial officers. 10. Unnecessary labour, expense, or other suffering or danger, on the part of persons whose co-operation is requisite pro re natâ, in order to make up the necessary complement of knowledge and power on the part of judicial officers, who are such by profession. 11. Unnecessary labour, expense, or other suffering or danger, on the part of persons at large, coming under the sphere of the operations of the persons above mentioned.

Secondary inconveniences are, in the consultative, pre-interpretative (or purely civil) branch of procedure, 1. Misinterpretation or adjudication. In the executive (including the penal) branch. 2. Total impunity of delinquents: (as favouring the production of other offences of the like nature). 3. Partial impunity of delinquents. 4. Application of punishment improper in specie, though perhaps not in degree (this lessening the beneficial efficacy of the quantity employed). 5. Uneconomical application of punishment, though proper, perhaps, as well in specie as in degree. 6. Unnecessary pecuniary expense on the part of the state.

Inconveniences of the 3rd order are, 1. Unnecessary delay. 2. Unnecessary intricacy.

Inconveniences of the 4th order are, 1. Breach, 2. Abuse, 3. Disturbance, of judicial trust, as above: viz. in as far as these offences are preliminary to and distinct from those of the 2nd and 3rd orders.

Inconveniences of the 5th order are, Breach of the several regulations of procedure, or other regulations, made in the view of obviating the inconveniences above enumerated: viz. if preliminary and distinct, as before.

III. OFFENCES against the PREVENTIVE branch of the POLICE. I. Offences against phthano-paranomic trust: (, to prevent; , an offence). 2. Offences against phthano-symphoric trust: (, a calamity). The two trusts may be termed by the common appellation of prophylactic: (, beforehand, and , to guard against).

IV. OFFENCES against the PUBLIC FORCE. 1. Offences against military trust, corresponding to those against judicial trust. Military desertion is a breach of military duty, or of military trust. Favouring desertion is a disturbance of it. 2. Offences against that branch of public trust which consists in the management of the several sorts of things appropriated to the purposes of war: such as arsenals, fortifications, dock-yards, ships of war, artillery, ammunition, military magazines, and so forth. It might be termed polemo-tamieutic: from , war; and , a steward.*

V. OFFENCES against the POSITIVE increase of the NATIONAL FELICITY. 1. Offences against epistemo-threptic trust: , knowledge; and , to nourish or promote). 2. Offences against eupædagogic trust: (, well; and , to educate). 3. Offences against noso-comial trust: (, a disease; and , to take care of). 4. Offences against moro-comial trust: (, an insane person). 5. Offences against ptocho-comial trust: (, the poor). 6. Offences against antembletic trust: (, to bestow in reparation of a loss). 7. Offences against hedonarchic trust: (, pleasures; and , to preside over). The above are examples of the principal establishments which should or might be set on foot for the purpose of making, in so many different ways, a positive addition to the stock of national felicity. To exhibit an exhaustive analysis of the possible total of these establishments would not be a very easy task: nor on the present occasion is it a necessary one: for be they of what nature and in what number they may, the offences to which they stand exposed will, in as far as they are offences against trust, be in point of denomination the same: and as to what turns upon the particular nature of each trust, they will be of too local a nature to come within the present plan.

All these trusts might be comprised under some such general name as that of agatho-poieutic trust: (, to do good to any one).

VI. OFFENCES against the PUBLIC WEALTH. 1. Non-payment of forfeitures. 2. Non-payment of taxes, including smuggling. 3. Breach of the several regulations made to prevent the evasion of taxes. 4. Offences against fiscal trust: the same as offences against judicial and military trusts. Offences against the original revenue, not accruing either from taxes or forfeitures, such as that arising from the public demesnes, stand upon the same footing as offences against private property. 5. Offences against demosio-tamieutic trust: (, things belonging to the public; and , a steward) viz. against that trust, of which the object is to apply to their several destinations such articles of the public wealth as are provided for the indiscriminate accommodation of individuals: such as public roads and waters, public harbours, post-offices, and packet boats, and the stock belonging to them; market-places, and other such public buildings; race-grounds, public walks, and so forth. Offences of this description will be apt to coincide with offences against agatho-poieutic trust as above, or with offences against ethno-plutistic trust hereafter mentioned, according as the benefit in question is considered in itself, or as resulting from the application of such or such a branch or portion of the public wealth.

VII. OFFENCES against POPULATION. 1. Emigration. 2. Suicide. 3. Procurement of impotence or barrenness. 4. Abortion. 5. Unprolific coition. 6. Celibacy.

VIII. OFFENCES against the NATIONAL WEALTH. 1. Idleness. 2. Breach of the regulations made in the view of preventing the application of industry to purposes less profitable, in prejudice of purposes more profitable. 3. Offences against ethno-plutistic trust: (, the nation at large; , to enrich).

IX. OFFENCES against the SOVEREIGNTY. 1. Offences against sovereign trust: corresponding to those against judicial, prophylactic, military, and fiscal trusts. Offensive rebellion includes wrongful interception, wrongful divestment, usurpation, and wrongful investment, of sovereign trust, with the offences accessory thereto. Where the trust is in a single person, wrongful interception, wrongful divestment, usurpation, and wrongful investment cannot, any of them, be committed without rebellion: abdication and detrectation can never be deemed wrongful: breach and abuse of sovereign trust can scarce be punished: no more can bribe-taking: wrongful imposition of it is scarce practicable. When the sovereignty is shared among a number, wrongful interception, wrongful divestment, usurpation, and wrongful investment, may be committed without rebellion: none of the offences against this trust are impracticable: nor is there any of them but might be punished. Defensive rebellion is disturbance of this trust. Political tumults, political defamation, and political vilification, are offences accessory to such disturbance.

Sovereign power (which, upon the principle of utility, can never be other than fiduciary) is exercised either by rule or without rule: in the latter case it may be termed autocratic: in the former case it is divided into two branches, the legislative and the executive.** In either case, where the designation of the person by whom the power is to be possessed, depends not solely upon mere physical events, such as that of natural succession but in any sort upon the will of another person, the latter possesses an investitive power, or right of investiture, with regard to the power in question: in like manner may any person also possess a divestitive power. The powers above enumerated, such as judicial power, military power, and so forth, may therefore be exercisable by a man, either directly, propriâ manu; or indirectly, manu alienâ.*** Power to be exercised manu alienâ is investitive, which may or may not be accompanied by divestitive. Of sovereign power, whether autocratic, legislative, or executive, the several public trusts above mentioned form so many subordinate branches. Any of these powers may be placed, either, 1. in an individual; or, 2. in a body politic: who may be either supreme or subordinate. Subordination on the part of a magistrate may be established, 1. By the person's being punishable: 2. By his being removable: 3. By the orders being reversible.

X. OFFENCES against RELIGION. 1. Offences tending to weaken the force of the religious sanction: including blasphemy and profaneness. 2. Offences tending to misapply the force of the religious sanction: including false prophecies, and other pretended revelations; also heresy, where the doctrine broached is pernicious to the temporal interests of the community. 3. Offences against religious trust, where any such is thought fit to be established.

XI. OFFENCES against the NATIONAL INTEREST in general. 1. Immoral publications. 2. Offences against the trust of an ambassador; or, as it might be termed, presbeutic trust. 3. Offences against the trust of a privy-counsellor; or, as it might be termed, symbouleutic trust. 4. In pure or mixed monarchies, prodigality on the part of persons who are about the person of the sovereign, though without being invested with any specific trust. 5. Excessive gaming on the part of the same persons. 6. Taking presents from rival powers without leave.

• A number of different branches of public trust, none of which have yet been provided with appellatives, have here been brought to view: which then were best? to coin new names for them out of the Greek; or, instead of a word to make use of a whole sentence? In English, and in French, there is no other alternative; no more than in any of the other southern languages. It rests with the reader to determine.

** See ch. xvii. [Limits], iii.

*** In the former case, the power might be termed in one word, autochirous: in the latter heterochirous. (, a man's own; , a hand; , another's).

Supra, xvii.

See ch. vii. [Actions] viii.

The reason probably why an object of the sort here in question is referred to the head of property, is, that the chief value of it arises from its being capable of being made a source of property in the more ordinary acceptations of the word; that is, of money, consumable commodities, and so forth.

The conditions themselves having nothing that corresponds to them in England, it was necessary to make use of foreign terms.

The above hints are offered to the consideration of the few who may be disposed to bend their minds to disquisitions of this uninviting nature: to sift the matter to the bottom, and engage in the details of illustration, would require more room than could in this place be consistently allowed.

See Fragment on Government, pref. p. xlv. edit. 1776.—pref. p. xlvii. edit. 1823.

Imagine what a condition a science must be in, when as yet there shall be no such thing as forming any extensive proposition relative to it, that shall be at the same time a true one: where, if the proposition shall be true of some of the particulars contained under it, it shall be false with regard to others. What a state would botany, for example, be in, if the classes were so contrived, that no common characters could be found for them? Yet in this state, and no better, seems every system of penal law to be, authoritative or unauthoritative, that has ever yet appeared. Try if it be otherwise, for instance, with the delicta privata et publica, and with the publica ordinaria, and publica extra-ordinaria of the Roman law.* All this for want of method: and hence the necessity of endeavouring to strike out a new one.

Nor is this want of method to be wondered at. A science so new as that of penal legislation, could hardly have been in any better state. Till objects are distinguished, they cannot be arranged. It is thus that truth and order go on hand in hand. It is only in proportion as the former is discovered, that the latter can be improved. Before a certain order is established, truth can be but imperfectly announced: but until a certain proportion of truth has been developed and brought to light, that order cannot be established. The discovery of truth leads to the establishment of order: and the establishment of order fixes and propagates the discovery of truth.

• See Heinecc, Elem. p. vii, 79, 80.

Supra, lviii.

Ch. vii. [Actions] xiv.

See ch. xii. [Consequences] iii.

That is, by their primary mischief.

See supra, xxxi note, and B. I. tit. [Accessory offences].

See ch. xiii. [Cases unmeet] ii. note.

I mean, that retaliation is capable of being applied in the cases in question, not that it ought always to be employed. Nor is it capable of being applied in every individual instance of each offence, but only in some individual instance of each species of offence.

See ch. xv. [Properties] viii.

Ch. ii. [Principles adverse].

It seems to be from their possessing these three last properties, that the custom has arisen of speaking of them, or at least of many of them, under the name of offences against the law of nature: a vague expression, and productive of a multitude of inconveniences. See ch. ii. [Principles adverse] xiv. note.

Because the person, who in general is most likely to be sensible to the mischief (if there is any) of the offence, viz. the person whom it most affects, shows by his conduct that he is not sensible of it.

See ch. vi. [Sensibility] xxv. xxvi.

See ch. xii. [Consequences] iv.

Among the offences, however, which belong to this class there are some which in certain countries it is not uncommon for persons to be disposed to prosecute without any artificial inducement, and merely on account of an antipathy, which such acts are apt to excite. See ch. ii. [Principles adverse] xi.

See note 1. in the preceding page. [In this edition, note 112.—Econlib Editor.]

Accordingly, most of them are apt to be ranked among offences against the law of nature. Vide supra, Characters of the 1st class, lxii. note.

I mean the considerations, right or wrong, which induce or dispose the legislator to treat them on the footing of offences.

Instance, offences by falsehood, in the case of defraudment.

Instance, offences by falsehood, in the case of simple corporeal injuries, and other offences against person.

Chapter XVII.

And the constitutional branch, what is become of it? Such is the question which many a reader will be apt to put. An answer that might be given is—that the matter of it might without much violence be distributed under the two other heads. But, as far as recollection serves, that branch notwithstanding its importance, and its capacity of being lodged separately from the other matter, had at that time scarcely presented itself to my view in the character of a distinct one: the thread of my enquiries had not as yet reached it. But in the concluding note of this same chapter, in paragraphs xxii. to the end, the omission may be seen in some measure supplied.

Under the Gentoo and Mahometan religions, the interests of the rest of the animal creation seem to have met with some attention. Why have they not universally, with as much as those of human creatures, allowance made for the difference in point of sensibility? Because the laws that are have been the work of mutual fear; a sentiment which the less rational animals have not had the same means as man has of turning to account. Why ought they not? No reason can be given. If the being eaten were all, there is very good reason why we should be suffered to eat such of them as we like to eat: we are the better for it, and they are never the worse. They have none of those long-protracted anticipations of future misery which we have. The death they suffer in our hands commonly is, and always may be, a speedier, and by that means a less painful one, than that which would await them in the inevitable course of nature. If the being killed were all, there is very good reason why we should be suffered to kill such as molest us: we should be the worse for their living, and they are never the worse for being dead. But is there any reason why we should be suffered to torment them? Not any that I can see. Are there any why we should not be suffered to torment them? Yes, several. See B. I. tit. [Cruelty to animals]. The day has been, I grieve to say in many places it is not yet past, in which the greater part of the species, under the denomination of slaves, have been treated by the law exactly upon the same footing as, in England for example, the inferior races of animals are still. The day may come, when the rest of the animal creation may acquire those rights which never could have been withholden from them but by the hand of tyranny. The French have already discovered that the blackness of the skin is no reason why a human being should be abandoned without redress to the caprice of a tormentor.* It may come one day to be recognized, that the number of the legs, the villosity of the skin, or the termination of the os sacrum, are reasons equally insufficient for abandoning a sensitive being to the same fate. What else is it that should trace the insuperable line? Is it the faculty of reason, or, perhaps, the faculty of discourse? But a full-grown horse or dog is beyond comparison a more rational, as well as a more conversable animal, than an infant of a day, or a week, or even a month, old. But suppose the case were otherwise, what would it avail? the question is not, Can they reason? nor, Can they talk? but, Can they suffer?

• See Lewis XIV's Code Noir.

Ch. vi. [Sensibility] iii.

I say nothing in this place of reward: because it is only in a few extraordinary cases that it can be applied, and because even where it is applied, it may be doubted perhaps whether the application of it can, properly speaking, be termed an act of legislation.

Ch. xiii. [Cases unmeet].

See ch. xiii. [Cases unmeet], iv.

Ch. xiv. [Proportion] xviii. Rule 7.

Ch. xiii. [Cases unmeet] iii. Append. tit. [Promulgation].

Ch. xi. [Disposition] xxxv. &c.

Ch. vi. [Sensibility].

In certain countries, in which the voice of the people has a more especial control over the hand of the legislator, nothing can exceed the dread which they are under of seeing any effectual provision made against the offenses which come under the head of defamation, particularly that branch of it which may be styled 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.

See ch. ix. [Consciousness].

Ch. xvi. [Division] lii.

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 me thinks 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.'

Evil of apprehension: third branch of the evil of a punishment. Ch. xiii. iv.

Derivative evils: fourth branch of the evil of a punishment. Ib.

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 reasoning, 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 production 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 shows itself in the shape of a command: 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 fuel to the flame. A kind of revenge exasperates the severities of coercive policy.

See B. I. tit. [Self-regarding offences].

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, or do they 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. 1776—and p. 114, edit. 1823.

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 étre embesoignèes: the technical word, which, he says, was appropriated to this purpose. This sort of law-proceedings seems not very well calculated to answer the design: accordingly we hear nothing of them now-a-days. The French ladies of the present age seem to be under no such difficulties.

• Quest. sur l'Encyclop. tom. 7. art. Impuissance.

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 downwards 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?

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 accustomed to annex to it.

In most of the European languages there are two different words for distinguishing the abstract and the concrete senses of the word law: 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 and 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.

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 way, the branch of law which goes commonly under the name of the law of nations: an appellation so uncharacteristic, that, were it not for the force of custom, it would seem rather to refer to internal jurisprudence. The chancellor D'Aguesseau 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 gens.*

• Œvres, Tom. ii. p. 337, edit. 1773, 12mo.

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 so: 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 bailiwick. 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 one 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 A. Dumont, it has taken root in the language. Witness reviews and newspapers.

• Selden's Table-Talk, tit. Law.

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 contradistinction to international law, and the imaginary law of nature. It might still be used in this sense, without scruple, in any other language.

Of what stamp are the works of Grotius, Puffendorf, and Burlamaqui? Are they political or ethical, historical or juridical, expository or censorial?—Sometimes one thing, sometimes 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 pretended law of nature; an obscure phantom which, in the imaginations of those who go in chase of it, points sometimes 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.

Mirabeau sur la Monarchie Prussienne, Tom. v. Liv. 8. p. 215.

Recherches sur les Etats Unis, 8vo. 1788, vol. i. p. 158.

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 Constitutions of the several independent states of America, &c.' Published by order of Congress: Philadelphia printed. Reprinted 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 Massachusetts, dated in the years 1779 and 1780, which in its first article is a little similar: also one of the province of Pennsylvania, dated between July 15th and September 28th, in which the similarity is rather more considerable.

Moreover, the famous Declaration of Independence, published by Congress July 5th, 1776, after a preambular 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 unalienable rights: 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 other Provinces, and in respect of the above leading article at least, to the above-mentioned general Declaration of Independence. See Recherches, &c., i. 197.

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 the premises the conclusion.