A fragment on government/Preface
The age we live in is a busy age; in which knowledge is rapidly advancing towards perfection. In the natural world, in particular, every thing teems with discovery and with improvement. The most distant and recondite regions of the earth traversed and explored the all-vivifying and subtle element of the air so recently analyzed and made known to striking evidences, were all others wanting, of this pleasing truth.
Correspondent to discovery and improvement in the natural world, is reformation in the moral; if that which seems a common notion be, indeed, a true one, that in the moral world there no longer remains any matter for discovery. Perhaps, however, this may not be the case: perhaps among such observations as would be best calculated to serve as grounds for reformation, are some which, being observations of matters of fact hitherto either incompletely noticed, or not at all would, when produced, appear capable of bearing the name of discoveries: with so little method and precision have the consequences of this fundamental axiom, it is the greatest happiness of the greatest number that is the measure of right and wrong, been as yet developped.
Be this as it may, if there be room for making, and if there be use in publishing, discoveries in the natural world, surely there is not much less room for making, nor much less use in proposing, reformation in the moral. If it be a matter of importance and of use to us to be made acquainted with distant countries, surely it is not a matter of much less importance, nor of much less use to us, to be made better and better acquainted with the chief means of living happily in our own: If it be of importance and of use to us to know the principles of the element we breathe, surely it is not of much less importance nor of much less use to comprehend the principles, and endeavour at the improvement of those laws, by which alone we breathe it in security. If to this endeavour we should fancy any Author, especially any Author of great name, to be, and as far as could in such case be expected, to avow himself a determined and persevering enemy, what should we say of him? We should say that the interests of reformation, and through them the welfare of mankind, were inseparably connected with the downfall of his works: of a great part, at least, of the esteem and, influence, which these works might under whatever title have acquired.
Such an enemy it has been my misfortune (and not mine only) to see, or fancy at least I saw, in the Author of the celebrated COMMENTARIES on the LAWS of ENGLAND; an Author whose works have had beyond comparison a more extensive circulation, have obtained a greater share of esteem, of applause, and consequently of influence (and that by a title on many grounds so indisputable) than any other writer who on that subject has ever yet appeared.
It is on this account that I conceived, some time since, the design of pointing out some of what appeared to me the capital blemishes of that work, particularly this grand and fundamental one, the antipathy to reformation; or rather, indeed, of laying open and exposing the universal inaccuracy and confusion which seemed to my apprehension to pervade the whole. For, indeed, such an ungenerous antipathy seemed of itself enough to promise a general vein of obscure and crooked reasoning, from whence no clear and sterling knowledge could be derived; so intimate is the connexion between some of the gifts of the understanding, and some of the affections of the heart.
It is in this view then that I took in hand that part of the first volume to which the Author has given the name of INTRODUCTION. It is in this part of the work that is contained whatever comes under the denomination of general principles. It is in this part of the work that are contained such preliminary views as it seemed proper to him to give of certain objects real or imaginary, which he found connected with his subject LAW by identity of name: two or three sorts of LAWS of Nature, the revealed LAW, and a certain LAW of Nations. It is in this part of the work that he has touched upon several topics which relate to all laws or institutions in general, or at least to whole classes of institutions without relating to any one more than to another.
To speak more particularly, it is in this part of his work that he has given a definition, such as it is, of that whole branch of law which he had taken for his subject; that branch, which some, considering it as a main stock, would term LAW without addition; and which he, to distinguish it from those others its condivident branches, terms law municipal:an account, such as it is, of the nature and origin of Natural Society the mother, and of Political Society the daughter, of Law municipal, duly begotten in the bed of Metaphor:a division, such as it is, of a law, individually considered, into what he fancies to be its parts:an account, such as it is, of the method to be taken for interpreting any law that may occur.
In regard to the Law of England in particular, it is here that he gives an account of the division of it into its two branches (branches, however, that are no ways distinct in the purport of them, when once established, but only in respect of the source from whence their establishment took its rise) the Statute or Written law, as it is called, and the Common or Unwritten: an account of what are called General Customs, or institutions in force throughout the whole empire, or at least the whole nation; of what are called Particular Customs, institutions of local extent established in particular districts; and of such adopted institutions of a general extent, as are parcel of what are called the Civil and the Canon laws; all three in the character of so many branches of what is called the Common Law: in fine, a general account of Equity, that capricious and incomprehensible mistress of our fortunes, whose features neither our Author, nor perhaps any one is well able to delineate; of Equity, who having in the beginning been a rib of Law, but since in some dark age plucked from her side, when sleeping, by the hands not so much of God as of enterprizing Judges, now lords it over her parent sister:
All this, I say, together with an account of the different districts of the empire over which different portions of the Law prevail, or over which the Law has different degrees of force, composes that part of our Author's work which he has styled the INTRODUCTION. His eloquent `Discourse on the study of the Law', with which, as being a discourse of the rhetorical kind rather than of the didactic, I proposed not to intermeddle, prefaces the whole.
It would have been in vain to have thought of travelling over the whole of so vast a work. My design, therefore, was to take such a portion of it, as might afford a fair and adequate specimen of the character and complexion of the whole. For this purpose the part here marked out would, I thought, abundantly suffice. This, however narrow in extent, was the most conspicuous, the most characteristic part of our Author's work, and that which was most his own. The rest was little more than compilation. Pursuing my examination thus far, I should pursue it, I thought, as far as was necessary for my purpose: and I had little stomach to pursue a task at once so laborious and so invidious any farther. If Hercules, according to the old proverb, is to be known ex pede: much more thought I, is he to be known ex capite.
In these views it was that I proceeded as far as the middle of the definition of the Law municipal. It was there I found, not without surprize, the digression which makes the subject of the present Essay. This threw me at first into no small perplexity. To give no account of it at all;to pass wholly sub silentio, so large, and in itself so material a part of the work I was examining, would seem strange: at the same time I saw no possibility of entering into an examination of a passage so anomalous, without cutting in pieces the thread of the discourse. Under this doubt I determined at any rate, for the present, to pass it by; the rather as I could not perceive any connexion that it had with any thing that came before or after. I did so; and continuing my examination of the definition from which it digressed, I travelled on to the end of the Introduction. It then became necessary to come to some definitive resolution concerning this excentric part of it: and the result was, that being loth to leave the enterprize I had begun in this respect, imperfect, I sat down to give what I intended should be a very slight and general survey of it. The farther, however, I proceeded in examining it, the more confused and unsatisfactory it appeared to me: and the greater difficulty I found in knowing what to make of it, the more words it cost me, I found, to say so. In this way, and by these means it was that the present Essay grew to the bulk in which the Reader sees it. When it was nearly completed, it occurred to me, that as the digression itself which I was examining was perfectly distinct from, and unconnected with the text from which it starts, so was, or so at least might be, the critique on that digression, from the critique on the text. The former was by much too large to be engrafted into the latter: and since if it accompanied it at all, it could only be in the shape of an Appendix, there seemed no reason why the same publication should include them both. To the former, therefore, as being the least, I determined to give that finish which I was able, and which I thought was necessary: and to publish it in this detached manner, as the first, if not the only part of a work, the principal and remaining part of which may possibly see the light some time or other, under some such title as that of `A COMMENT on the COMMENTARIES'
In the mean time that I may stand more fully justified, or excused at least, in an enterprize to most perhaps so extraordinary, and to many doubtless so unacceptable, it may be of use to endeavour to state with some degree of precision, the grounds of that war which, for the interests of true science, and of liberal improvement, I think myself bound to wage against this work. I shall therefore proceed to mark out and distinguish those points of view in which it seems principally reprehensible, not forgetting those in which it seems still entitled to our approbation and applause.
There are two characters, one or other of which every man who finds any thing to say on the subject of Law, may be said to take upon him; that of the Expositor, and that of the Censor. To the province of the Expositor it belongs to explain to us what, as he supposes, the Law is: to that of the Censor, to observe to us what he thinks it ought to be. The former, therefore, is principally occupied in stating, or in enquiring after facts: the latter, in discussing reasons. The Expositor, keeping within his sphere, has no concern with any other faculties of the mind than the apprehension, the memory, and the judgment: the latter, in virtue of those sentiments of pleasure or displeasure which he finds occasion to annex to the objects under his review, holds some intercourse with the affections. That which is Law, is, in different countries, widely different: while that which ought to be, is in all countries to a great degree the same. The Expositor, therefore, is always the citizen of this or that particular country: the Censor is, or ought to be the citizen of the world. To the Expositor it belongs to shew what the Legislator and his underworkman the Judge have done already: to the Censor it belongs to suggest what the Legislator ought to do in future. To the Censor, in short, it belongs to teach that science, which when by change of hands converted into an art, the LEGISLATOR practises.
Let us now return to our Author. Of these two perfectly distinguishable functions, the latter alone is that which it fell necessarily within his province to discharge. His professed object was to explain to us what the Laws of England were. `Ita lex scripta est', was the only motto which he stood engaged to keep in view. The work of censure (for to this word, in default of any other, I find it necessary to give a neutral sense) the work of censure, as it may be styled, or, in a certain sense, of criticism, was to him but a parergona work of supererogation: a work, indeed, which, if aptly executed, could not but be of great ornament to the principal one, and of great instruction as well as entertainment to the Reader, but from which our Author, as well as those that had gone before him on the same line, might, without being chargeable with any deficiency, have stood excused: a work which, when superadded to the principal, would lay the Author under additional obligations, and impose on him new duties: which, notwithstanding whatever else it might differ in from the principal one, agrees with it in this, that it ought to be executed with impartiality, or not at all.
If, on the one hand, a hasty and undiscriminating condemner of what is established may expose himself to contempt; on the other hand, a bigotted or corrupt defender of the works of power, becomes guilty, in a manner, of the abuses which he supports: the more so if, by oblique glances and sophistical glosses, he studies to guard from reproach, or recommend to favour, what he knows not how, and dares not attempt, to justify. To a man who contents himself with simply stating an institution as he thinks it is, no share, it is plain, can justly be attributed (nor would any one think of attributing to him any share) of whatever reproach, any more than of whatever applause the institution may be thought to merit. But if not content with this humbler function, he takes upon him to give reasons in behalf of it, reasons whether made or found by him, it is far otherwise. Every false and sophistical reason that he contributes to circulate, he himself is chargeable with: nor ought he to be holden guiltless even of such as, in a work where fact not reason is the question, he delivers as from other writers without censure. By officiously adopting them he makes them his own, though delivered under the names of the respective Authors: not much less than if delivered under his own. For the very idea of a reason betokens approbation: so that to deliver a remark under that character, and that without censure, is to adopt it. A man will scarcely, therefore, without some note of disapprobation, be the instrument of introducing, in the guise of a reason, an argument which he does not really wish to see approved. Some method or other he will take to wash his hands of it: some method or other he will take to let men see that what he means to be understood to do, is merely to report the judgment of another, not to pass one of his own. Upon that other then he will lay the blame; at least he will take care to repel it from himself. If he omits to do this, the most favourable cause that can be assigned to the omission is indifference: indifference to the public welfarethat indifference which is itself a crime.
It is wonderful how forward some have been to look upon it as a kind of presumption and ingratitude, and rebellion, and cruelty, and I know not what besides, not to allege only, nor to own, but to suffer any one so much as to imagine, that an old-established law could in any respect be a fit object of condemnation. Whether it has been a kind of personification, that has been the cause of this, as if the law were a living creature, or whether it has been the mechanical veneration for antiquity, or what other delusion of the fancy, I shall not here enquire. For my part, I know not for what good reason it is that the merit of justifying a law when right should have been thought greater, than that of censuring it when wrong. Under a government of Laws, what is the motto of a good citizen? To obey punctually; to censure freely.
Thus much is certain; that a system that is never to be censured, will never be improved: that if nothing is ever to be found fault with, nothing will ever be mended: and that a resolution to justify every thing at any rate, and to disapprove of nothing, is a resolution which, pursued in future, must stand as an effectual bar to all the additional happiness we can ever hope for; pursued hitherto would have robbed us of that share of happiness which we enjoy already.
Nor is a disposition to find `every thing as it should be,' less at variance with itself, than with reason and utility. The commonplace arguments in which it vents itself justify not what is established, in effect, any more than they condemn it: since whatever now is established, once was innovation.
Precipitate censure, cast on a political institution, does but recoil on the head of him who casts it. From such an attack it is not the institution itself, if well grounded, that can suffer. What a man says against it either makes impression or makes none. If none, it is just as if nothing had been said about the matter: if it does make an impression, it naturally calls up some one or other in defence. For if the institution is in truth a beneficial one to the community in general, it cannot but have given an interest in its preservation to a number of individuals. By their industry, then, the reasons on which it is grounded are brought to light: from the observation of which those who acquiesced in it before upon trust, now embrace it upon conviction. Censure, therefore, though ill-founded, has no other effect upon an institution than to bring it to that test, by which the value of those, indeed, on which prejudice alone has stamped a currency, is cried down, but by which the credit of those of sterling utility is confirmed.
Nor is it by any means from passion and ill-humour, that censure, passed upon legal institutions, is apt to take its birth. When it is from passion and ill-humour that men speak, it is with men that they are in ill-humour, not with laws: it is men, not laws, that are the butt of arrogance. Spleen and turbulence may indeed prompt men to quarrel with living individuals: but when they make complaint of the dead letter of the Law, the work of departed lawgivers, against whom no personal antipathy can have subsisted, it is always from the observation, or from the belief at least, of some real grievance. The Law is no man's enemy: the Law is no man's rival. Ask the clamorous and unruly multitudeit is never the Law itself that is in the wrong: it is always some wicked interpreter of the Law that has corrupted and abused it.
Thus destitute of foundations are the terrors, or pretended terrors, of those who shudder at the idea of a free censure of established institutions. So little does the peace of society require the aid of those lessons which teach men to accept of any thing as reason, and to yield the same abject and indiscriminating homage to the Laws here, which is paid to the despot elsewhere. The fruits of such tuition are visible enough in the character of that race of men who have always occupied too large a space in the circle of the profession: A passive and enervate race, ready to swallow any thing, and to acquiesce in any thing: with intellects incapable of distinguishing right from wrong, and with affections alike indifferent to either: insensible, short-sighted, obstinate: lethargic, yet liable to be driven into convulsions by false terrors: deaf to the voice of reason and public utility: obsequious only to the whisper of interest, and to the beck of power.
This head of mischief, perhaps, is no more than what may seem included under the former. For why is it an evil to a country that the minds of those who have the Law under their management should be thus enfeebled? It is because it finds them impotent to every enter prize of improvement.
Not that a race of lawyers and politicians of this enervate breed is much less dangerous to the duration of that share of felicity which the State possesses at any given period, than it is mortal to its chance of attaining to a greater. If the designs of a Minister are inimical to his country, what is the man of all others for him to make an instrument of or a dupe? Of all men, surely none so fit as that sort of man who is ever on his knees before the footstool of Authority, and who, when those above him, or before him, have pronounced, thinks it a crime to have an opinion of his own.
Those who duly consider upon what slight and trivial circumstances, even in the happiest times, the adoption or rejection of a Law so often turns; circumstances with which the utility of it has no imaginable connection those who consider the desolate and abject state of the human intellect, during the periods in which so great a part of the still subsisting mass of institutions had their birth those who consider the backwardness there is in most men, unless when spurred by personal interests or resentments, to run a-tilt against the Colossus of authority those, I say, who give these considerations their due weight, will not be quite so zealous, perhaps, as our Author has been to terrify men from setting up what is now `private judgment,' against what once was `public': nor to thunder down the harsh epithet of `arrogance' on those, who, with whatever success, are occupied in bringing rude establishments to the test of polished reason. They will rather do what they can to cherish a disposition at once so useful and so rare: which is so little connected with the causes that make popular discontentments dangerous, and which finds so little aliment in those propensities that govern the multitude of men. They will not be for giving such a turn to their discourses as to bespeak the whole of a man's favour for the defenders of what is established: nor all his resentment for the assailants. They will acknowledge that if there be some institutions which it is `arrogance' to attack, there may be others which it is effrontery to defend. TOURREIL has defended torture: torture established by the `public judgment' of so many enlightened nations. BECCARIA (`indecent' and 'arrogant' Beccaria!) has condemned it. Of these two whose lot among men would one choose rather, the Apologist's or the Censor's?
Of a piece with the discernment which enables a man to perceive, and with the courage which enables him to avow, the defects of a system of institutions, is that accuracy of conception which enables him to give a clear account of it. No wonder then, in a treatise partly of the expository class, and partly of the censorial, that if the latter department is filled with imbecillity, symptoms of kindred weakness should characterize the former.
The former department, however, of our Author's work, is what, on its own account merely, I should scarce have found myself disposed to intermeddle with. The business of simple exposition is a harvest in which there seemed no likelihood of there being any want of labourers: and into which therefore I had little ambition to thrust my sickle.
At any rate, had I sat down to make a report of it in this character alone, it would have been with feelings very different from those of which I now am conscious, and in a tone very different from that which I perceive myself to have assumed. In determining what conduct to observe respecting it, I should have considered whether the taint of error seemed to confine itself to parts, or to diffuse itself through the whole. In the latter case, the least invidious, and considering the bulk of the work, the most beneficial course would have been to have taken no notice of it at all, but to have sat down and tried to give a better. If not the whole in general, but scattered positions only had appeared exceptionable, I should have sat down to rectify those positions with the same apathy with which they were advanced. To fall in an adverse way upon a work simply expository, if that were all there were of it, would have been alike ungenerous and unnecessary. In the involuntary errors of the understanding there can be little to excite, or at least to justify, resentment. That which alone, in a manner, calls for rigid censure, is the sinister bias of the affections. If then I may still continue to mention as separate, parts which in the work itself are so intimately, and, indeed, undistinguishably blended, it is the censorial part alone that has drawn from me that sort of animadversion I have been led to bestow indiscriminately on the whole. To lay open, and if possible supply, the imperfections of the other, is an operation that might indeed of itself do service; but that which I thought would do still more service, was the weakening the authority of this.
Under the sanction of a great name every string of words however unmeaning, every opinion however erroneous, will have a certain currency. Reputation adds weight to sentiments from whence no part of it arose, and which had they stood alone might have drawn nothing, perhaps, but contempt. Popular fame enters not into nice distinctions. Merit in one department of letters affords a natural, and in a manner irrecusable presumption of merit in another, especially if the two departments be such between which there is apparently a close affiance.
Wonderful, in particular, is that influence which is gained over young minds, by the man who on account of whatever class of merit is esteemed in the character of a preceptor. Those who have derived, or fancy themselves to have derived knowledge from what he knows, or appears to know, will naturally be for judging as he judges: for reasoning as he reasons; for approving as he approves; for condemning as he condemns. On these accounts it is, that when the general complexion of a work is unsound, it may be of use to point an attack against the whole of it without distinction, although such parts of it as are noxious as well as unsound be only scattered here and there.
On these considerations then it may be of use to shew, that the work before us, in spite of the merits which recommend it so powerfully to the imagination and to the ear, has no better title on one account than on another, to that influence which, were it to pass unnoticed, it might continue to exercise over the judgment.
The Introduction is the part to which, for reasons that have been already stated, it was always my intention to confine myself. It is but a part even of this Introduction that is the subject of the present Essay. What determined me to begin with this small part of it is, the facility I found in separating it from every thing that precedes or follows it. This is what will be more particularly spoken to in another place.
It is not that this part is among those which seemed most open to animadversion. It is not that stronger traces are exhibited in this part than in another of that spirit in our Author which seems so hostile to Reformation, and to that Liberty which is Reformation's harbinger.
It is not here that he tramples on the right of private judgment, that basis of every thing that an Englishman holds dear. It is not here, in particular, that he insults our understandings with nugatory reasons; stands forth the professed champion of religious intolerance; or openly sets his face against civil reformation.
It is not here, for example, he would persuade us, that a trader who occupies a booth at a fair is a fool for his pains; and on that account no fit object of the Law's protection.
It is not here that he gives the presence of one man at the making of a Law, as a reason why ten thousand others that are to obey it, need know nothing of the matter.
It is not here, that after telling us, in express terms, there must be an `actual breaking' to make burglary, he tells us, in the same breath, and in terms equally express, where burglary may be without actual breaking; and this because `the Law will not suffer itself to be trifled with.'
It is not here, that after relating the Laws by which peaceable Christians are made punishable for worshipping God according to their consciences, he pronounces with equal peremptoriness and complacency, that every thing, yes, `every thing is as it should be.'
It is not here, that he commands us to believe, and that on pain of forfeiting all pretensions to either `sense or probity,' that the system of our jurisprudence is, in the whole and every part of it, the very quintessence of perfection.
It is not here that he assures us in point of fact, that there never has been an alteration made in the Law that men have not afterwards found reason to regret.
It is not here that he turns the Law into a Castle, for the purpose of opposing every idea of `fundamental' reparation.
It is not here that he turns with scorn upon those beneficent Legislators, whose care it has been to pluck the mask of Mystery from the face of Jurisprudence.
It is not then, I say, this part, it is not even any part of that Introduction, to which alone I have any thoughts of extending my examination, that is the principal seat of that poison, against which it was the purpose of this attempt to give an antidote. The subject handled in this part of the work is such, as admits not of much to be said in the person of the Censor. Employed, as we have seen, in settling matters of a preliminary nature in drawing outlines, it is not in this part that there was occasion to enter into the details of any particular institution. If I chose the Introduction then in preference to any other part, it was on account of its affording the fairest specimen of the whole, and not on account of its affording the greatest scope for censure.
Let us reverse the tablet. While with this freedom I expose our Author's ill deserts, let me not be backward in acknowledging and paying homage to his various merits: a justice due, not to him alone, but to that Public, which now for so many years has been dealing out to him (it cannot be supposed altogether without title) so large a measure of its applause.
Correct, elegant, unembarrassed, ornamented, the style is such, as could scarce fail to recommend a work still more vicious in point of matter to the multitude of readers.
He it is, in short, who first of all institutional writers, has taught Jurisprudence to speak the language of the Scholar and the Gentle man: put a polish upon that rugged science: cleansed her from the dust and cobwebs of the office: and if he has not enriched her with that precision that is drawn only from the sterling treasury of the sciences, has decked her out, however, to advantage, from the toilette of classic erudition: enlivened her with metaphors and allusions: and sent her abroad in some measure to instruct, and in still greater measure to entertain, the most miscellaneous and even the most fastidious societies.
The merit to which, as much perhaps as to any, the work stands indebted for its reputation, is the enchanting harmony of its numbers: a kind of merit that of itself is sufficient to give a certain degree of celebrity to a work devoid of every other. So much is man governed by the ear.
The function of the Expositor may be conceived to divide itself into two branches: that of history, and that of simple demonstration. The business of history is to represent the Law in the state it has been in, in past periods of its existence: the business of simple demonstration in the sense in which I will take leave to use the word, is to represent the Law in the state it is in for the time being.
Again, to the head of demonstration belong the several businesses of arrangement, narration and conjecture. Matter of narration it may be called, where the Law is supposed to be explicit, clear, and settled: matter of conjecture or interpretation, where it is obscure, silent, or unsteady. It is matter of arrangement to distribute the several real or supposed institutions into different masses, for the purpose of a general survey; to determine the order in which those masses shall be brought to view; and to find for each of them a name.
The business of narration and interpretation are conversant chiefly about particular institutions. Into the details of particular institutions it has not been my purpose to descend. On these topics, then, I may say, in the language of procedure, non sum informatus. Viewing the work in this light, I have nothing to add to or to except against the public voice.
History is a branch of instruction which our Author, though not rigidly necessary to his design, called in, not without judgment, to cast light and ornament on the dull work of simple demonstration: this part he has executed with an elegance which strikes every one: with what fidelity, having not very particularly examined, I will not take upon me to pronounce.
Among the most difficult and the most important of the functions of the demonstrator is the business of arrangement. In this our Author has been thought, and not, I conceive, without justice, to excel; at least in comparison of any thing in that way that has hitherto appeared. `Tis to him we owe such an arrangement of the elements of Jurisprudence, as wants little, perhaps, of being the best that a technical nomenclature will admit of. A technical nomenclature, so long as it is admitted to mark out and denominate the principal heads, stands an invincible obstacle to every other than a technical arrangement. For to denominate in general terms, what is it but to arrange? and to arrange under heads, what is it but to denominate upon a large scale? A technical arrangement, governed then in this manner, by a technical nomenclature, can never be otherwise than confused and unsatisfactory. The reason will be sufficiently apparent, when we understand what sort of an arrangement that must be which can be properly termed a natural one.
That arrangement of the materials of any science may, I take it, be termed a natural one, which takes such properties to characterize them by, as men in general are, by the common constitution of man's nature, disposed to attend to: such, in other words, as naturally, that is readily, engage, and firmly fix the attention of any one to whom they are pointed out. The materials, or elements here in question, are such actions as are the objects of what we call Laws or Institutions.
Now then, with respect to actions in general, there is no property in them that is calculated so readily to engage, and so firmly to fix the attention of an observer, as the tendency they may have to, or divergency (if one may so say) from, that which maybe styled the common end of all of them. The end I mean is Happiness: and this tendency in any act is what we style its utility: as this divergency is that to which we give the name of mischievousness. With respect then to such actions in particular as are among the objects of the Law, to point out to a man the utility of them or the mischievousness, is the only way to make him see clearly that property of them which every man is in search of; the only way, in short, to give him satisfaction.
From utility then we may denominate a principle, that may serve to preside over and govern, as it were, such arrangement as shall be made of the several institutions or combinations of institutions that compose the matter of this science: and it is this principle, that by putting its stamp upon the several names given to those combinations, can alone render satisfactory and dear any arrangement that can be made of them.
Governed in this manner by a principle that is recognized by all men, the same arrangement that would serve for the jurisprudence of any one country, would serve with little variation for that of any other.
Yet more. The mischievousness of a bad Law would be detected, at least the utility of it would be rendered suspicious, by the difficulty of finding a place for it in such an arrangement: while, on the other hand, a technical arrangement is a sink that with equal facility will swallow any garbage that is thrown into it.
That this advantage may be possessed by a natural arrangement, is not difficult to conceive. Institutions would be characterized by it in the only universal way in which they can be characterized; by the nature of the several modes of conduct which, by prohibiting, they constitute offences.
These offences would be collected into classes denominated by the various modes of their divergency from the common end; that is, as we have said, by their various forms and degrees of mischievousness: in a word, by those properties which are reasons for their being made offences: and whether any such mode of conduct possesses any such property is a question of experience. Now, a bad Law is that which prohibits a mode of conduct that is not mischievous. Thus would it be found impracticable to place the mode of conduct prohibited by a bad law under any denomination of offence, without asserting such a matter of fact as is contradicted by experience. Thus cultivated, in short, the soil of Jurisprudence would be found to repel in a manner every evil institution; like that country which refuses, we are told, to harbour any thing venomous in its bosom.
The synopsis of such an arrangement would at once be a compendium of expository and of censorial Jurisprudence: nor would it serve more effectually to instruct the subject, than it would to justify or reprove the Legislator.
Such a synopsis, in short, would be at once a map, and that an universal one, of Jurisprudence as it is, and a slight but comprehensive sketch of what it ought to be. For, the reasons of the several institutions comprised under it would stand expressed, we see, and that uniformly (as in our Author's synopsis they do in scattered instances) by the names given to the several classes under which those institutions are comprised. And what reasons? Not technical reasons, such as none but a Lawyer gives, nor any but a Lawyer would put up with; but reasons, such as were they in themselves what they might and ought to be, and expressed too in the manner they might and ought to be, any man might see the force of as well as he.
Nor in this is there any thing that need surprize us. The consequences of any Law, or of any act which is made the object of a Law, the only consequences that men are at all interested in, what are they but pain and pleasure? By some such words then as pain and pleasure, they may be expressed: and pain and pleasure at least, are words which a man has no need, we may hope, to go to a Lawyer to know the meaning of. In the synopsis then of that sort of arrangement which alone deserves the name of a natural one, terms such as these, terms which if they can be said to belong to any science, belong rather to Ethics than to Jurisprudence, even than to universal Jurisprudence, will engross the most commanding stations.
What then is to be done with those names of classes that are purely technical?With offences, for example, against prerogative, with misprisions, contempts, felonies, praemunires? What relation is it that these mark out between the Laws that concern the sorts of acts they are respectively put to signify, and that common end we have been speaking of? Not any. In a natural arrangement what then would become of them? They would either be banished at once to the region of quiddities and substantial forms; or if, and in deference to attachments too inveterate to be all at once dissolved, they were still to be indulged a place, they would be stationed in the corners and bye places of the Synopsis: stationed, not as now to give light, but to receive it. But more of this, perhaps, at some future time.
To return to our Author. Embarrassed, as a man must needs be, by this blind and intractable nomenclature, he will be found, I conceive, to have done as much as could reasonably be expected of a writer so circumstanced; and more and better than was ever done before by any one.
In one part, particularly, of his Synopsis, several fragments of a sort of method which is, or at least comes near to, what may be termed a natural one, are actually to be found. We there read of `corporal injuries'; of `offences against peace'; against `health'; against `personal security'; `liberty': `property': light is let in, though irregularly, at various places.
In an unequal imitation of this Synopsis that has lately been performed upon what is called the Civil Law, all is technical. All, in short, is darkness. Scarce a syllable by which a man would be led to suspect, that the affair in hand were an affair that happiness or unhappiness was at all concerned in.
To return, once more, to our Author's Commentaries. Not even in a censorial view would I be understood to deem them altogether without merit. For the institutions commented on, where they are capable of good reasons, good reasons are every now and then given: in which way, so far as it goes, one-half of the Censor's task is well accomplished. Nor is the dark side of the picture left absolutely untouched. Under the head of `Trial by jury', are some very just and interesting remarks on the yet-remaining imperfections of that mode of trial: and under that of `Assurances by matter of Record', on the lying and extortious jargon of Recoveries. So little, however, are these particular remarks of a piece with the general disposition, that shews itself so strongly throughout the work, indeed so plainly adverse to the general maxims that we have seen, that I can scarce bring myself to attribute them to our Author. Not only disorder is announced by them, but remedies, well-imagined remedies, are pointed out. One would think some Angel had been sowing wheat among our Author's tares.
With regard to this Essay itself, I have not much to say. The insufficiencies of our Author. The business of it is therefore rather to overthrow than to set up; which latter task can seldom be performed to any great advantage where the former is the principal one.
To guard against the danger of misrepresentation, and to make sure of doing our Author no injustice, his own words are given all along: and, as scarce any sentence is left unnoticed, the whole comment wears the form of what is called a perpetual one. With regard to a discourse that is simply institutional, and in which the writer builds upon a plan of his own, a great part of the satisfaction it can be made to afford depends upon the order and connection that are established between the several parts of it. In a comment upon the work of another, no such connection, or at least no such order, can be established commodiously, if at all. The order of the comment is prescribed by the order, perhaps the disorder, of the text.
The chief employment of this Essay, as we have said, has necessarily been to overthrow. In the little, therefore, which has been done by it in the way of setting up, my view has been not so much to think for the Reader, as to put him upon thinking for himself. This I flatter myself with having done on several interesting topics; and this is all that at present I propose.
Among the few positions of my own which I have found occasion to advance, some I observe which promise to be far from popular. These it is likely may give rise to very warm objections: objections which in themselves I do not wonder at, and which in their motive I cannot but approve. The people are a set of masters whom it is not in a man's power in every instance fully to please, and at the same time faithfully to serve. He that is resolved to persevere without deviation in the line of truth and utility, must have learnt to prefer the still whisper of enduring approbation, to the short-lived bustle of tumultuous applause.
Other passages too there may be, of which some farther explanation may perhaps not unreasonably be demanded. But to give these explanations, and to obviate those objections, is a task which, if executed at all, must be referred to some other opportunity. Consistency forbad our expatiating so far as to lose sight of our Author: since it was the line of his course that marked the boundaries of ours.
- I add here the word `institutions', for the sake of including rules of Common Law, as well as portions of Statute Law.
- Membra Condividnitul SAUND. Log. L. I. c. 46.
- In practice, the question of Law has commonly been spoken of as opposed to that of fact but this distinction is an accidental one. That a Law commanding or prohibiting such a son of action, has been established, is as much a fact, as that an individual action of that sort has been committed. The establishment of a Law may be spoken of as a fact, at least for the purpose of distinguishing from any consideration that may be offered as a reason for such Law.
- `Arrogance'; our Author calls it the utmost arrogance, [IV Comm. p.50.] `to censure what has, at least, a better chance to be tight, than the singular notions of any particular man': meaning thereby certain ecclesiastical institutions. Vibrating, as it should seem, between passion and discretion, he has thought it necessary, indeed, to insert in the sentence that, which being inserted, turns it into nothing: After the word `censure', `with contempt' he adds, `and rudeness': as if there needed a professor to inform us, that to treat any thing with contempt and rudeness is arrogance. `Indecency', he had already called it, `to set up private judgment in opposition to public': and this without restriction, qualification, or reserve. This was in the first transport of a holy zeal, before discretion had come in to his assistance. This passage the Doctors Priestly [See Remarks, &c.] and Fumeaux,[See Letters to Mr Justice Blackstone, 1771. Second Edition.] who, in quality of Dissenting Ministers, and champions of dissenting opinions, saw themselves particularly attacked in it, have not suffered to pass unnoticed; any more than has the celebrated Author of the `Remarks on the Acts of the 13th Parliament',[In the Preface.] who found it adverse to his enterprize, for the same reason that it is hostile to every other liberal plan of political discussion. My edition of the Commentaries happens to be the first: since the above paragraph was written I have been directed to a later. In this later edition the passage about `indecency' is, like the other about `arrogance', explained away into nothing. What we are now told is, that `to set up private judgment in (virulent and factious) opposition to public authority' (he might have addedor to private either) `is indecency'. (See the 5th edit. 8vo. p. 50, as in the 1st.) This we owe, I think, to Dr Furneaux. The Doctors Furneaux and Priestly, under whose well-applied correction our Author has smarted so severely, have a good deal to answer for: They have been the means of his adding a good deal of this kind of rhetorical lumber to the plentiful stock there was of it before. One passage, indeed, a passage deep-tinctured with religious gall, they have been the means of clearing away entirely;[See Furneaux, Letter VII.] and in thirst least, they have done good service. They have made him sophisticate: they have made him even expunge: but all the Doctors in the world, I doubt, would not bring him to confession. See his answer to Dr Priestly.
- There is only one way in which censure, cast upon the Laws, has a greater tendency to do harm than good; and that is when it sets itself to contest their validity: I mean, when abandoning the question of expediency, it sets itself to contest the tight. But this is an attack to which old-established Laws are not so liable. As this is the last though but too common resource of passion and ill-humour; and what men scarce think of betaking themselves to, unless irritated by personal competitions, it is that to which recent Laws are most exposed. I speak of what are called written Laws: for as to unwritten institutions, as there is no such thing as any certain symbol by which their authority is attested, their validity, how deeply rooted soever, is what we see challenged without remorse. A radical weakness, interwoven into the very constitution of unwritten Law.
- One may well say rare. It is a matter of fact about which there can be no dispute. The truth of it may be seen in the multitude of Expositors which the Jurisprudence of every nation furnished, ere it afforded a single Censor. When Beccaria came, he was received by the intelligent as an Angel from heaven would be by the faithful. He may be styled the father of Censorial Jurisprudence. Montesquieu's was a work of the mixed kind. Before Montesquieu all was unmixed barbarism. Grotius and Puffendorf were to Censorial Jurisprudence what the Schoolmen were to Natural Philosophy.
- A French Jurist of the last age, whose works had like celebrity, and in many respects much the same sort of merits as our Author's. He was known to most advantage by a translation of Demosthenes. He is now forgotten.
- `Burglary',[Comm. Ch. XVI. p.226.] says our Author, `cannot be committed in a tent or a booth erected in a market fair; though the owner may lodge therein: for the Law regards thus highly nothing but permanent edifices; a house, or church; the wall, or gate of a town; and it is the folly of the owner to lodge in so fragile a tenement.' To save himself from this charge of folly, it is not altogether clear which of two things the trader ought to do: quit his business and not go to the fair at all: or leave his goods without any body to take care of them.
- Speaking of an Act of Parliament,[I Comm. Ch. II. p. 178.] `There needs', he says, `no formal promulgation to give it the force of a Law, as was necessary by the Civil Law with regard to the Emperor's Edicts: because every man in England is, in judgment of Law, party to the making of an Act of Parliament, being present thereat by his representatives.' This, for aught I know, may be good judgment of Law; because any thing may be called judgment of Law, that comes from a Lawyer, who has got a name: it seems, however, not much like any thing that can be called judgment of common sense. This notable piece of astutia was originally, I believe, judgment of Lord Coke: it from thence became judgment of our Author: and may have been judgment of more Lawyers than I know of before and since. What grieves me is, to find many men of the best affections to a cause which needs no sophistry, bewildered and bewildering others with the like jargon.
- His words are,[IV Comm. Ch. XVI. p.226.] `There must be an actual breaking, not a mere legal clausum fregit (by leaping over invisible ideal boundaries, which may constitute a civil trespass) but a substantial and forcible irruption.' In the next sentence but two he goes on, and says,`But to come down a chimney is held a burglarious entry; for that is as much closed as the nature of things will permit. So also to knock at a door, and upon opening it to rush in with a felonious intent; or under pretence of taking lodgings, to fall upon the landlord and rob him; or to procure a constable to gain admittance, in order to search for traitors, and then to bind the constable and rob the house; all these entries have been adjudged burglarious, though there was no actual breaking: for the Law will not suffer itself to be trifled with by such evasions.' ... Can it be more egregiously trifled with than by such reasons? I must own I have been ready to grow out of conceit with these useful little particles, for, because, since, and others of that fraternity, from seeing the drudgery they are continually put to in these Commentaries. The appearance of any of them is a sort of warning to me to prepare for some tautology, or some absurdity: for the same thing dished up over again in the shape of a reason for itself: or for a reason which, ifs distinct one, is of the same stamp as those we have just seen. Other instances of the like hard treatment given to these poor particles will come under observation in the body of this Essay. As to reasons of the first-mentioned class, of them one might pick out enough to fill a volume.
- `In what I have now said', says he,[IV Comm. Ch. IV. p.49.] `I would not be understood to derogate from the rights of the national Church, or to favour a loose latitude of propagating any crude undigested sentiments in religious matters. Of Propagating, I say; for the bare entertaining them, without an endeavour to diffuse them, seems hardly cognizable by any human authority. I only mean to illustrate the excellence of our present establishment, by looking back to former times. Every thing is now as is should be: unless, perhaps, that heresy ought to be more strictly defined, and no prosecution permitted, even in the Ecclesiastical Courts, till the tenets in question are by proper authority previously declared to be heretical. Under these restrictions it seems necessary for the support of the national religion', (the national religion being such, we are to understand, as would not be able to support itself were any one at liberty to make objections to it) `that the officers of the Church should have power to censure heretics, hut not to exterminate or destroy them.' Upon looking into a later edition (the fifth) I find this passage has undergone a modification. After `Every thing is now as it should be', is added, `with respect to the spiritual cognizance, and spiritual punishment of heresy.' After `the officers of the Church should have power to censure heretics,' is added, `but not to harass them with temporal penalties, much less to exterminate or destroy them.' How far the mischievousness of the original text has been cured by this amendment, may be seen from Dr Furneaux, Lett. II. p. 30, 2nd edit.2
- I Comm. 140. I would not be altogether positive, how far it was he meant this persuasion should extend itself in point of time: whether to those institutions only that happened to be in force at the individual instant of his writing: or whether to such opposite institutions also as, within any given distance of time from that instant, either had been in force, or were about to be. His words are as follows: `All these rights and liberties it is our birthright to enjoy entire; unless where the Laws of our country have laid them under necessary restraints. Restraints in themselves so gentle and moderate, as will appear upon further enquiry, that no man of sense or probity would wish to see them slackened. For all of us have it in our choice to do every thing that a good man would desire to do; and are restrained from nothing, but what would be pernicious either to ourselves or our fellow citizens.' If the Reader would know what these rights and liberties are, I answer him out of the same page, they are those, `in opposition to one or other of which every species of compulsive tyranny and oppression must act, having no other object upon which it can possibly be employed.' The liberty, for example, of worshipping God without being obliged to declare a belief in the XXXIX Articles, is a liberty that no `good man,no man of sense or probity,' `would wish' for.'
- I Comm. 70. If no reason can be found for an institution, we are to suppose one: and it is upon the strength of this supposed one we are to cry it up as reasonable; It is thus that the Law is justified of her children. The words are'Not that the particular reason of every rule in the Law can, at this distance of time, be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the Law will presume it to be well founded. And it hath been an ancient observation in the Laws of England,' (he might with as good ground have addedand in all other Laws) `That whenever a standing rule of Law, of which the reason, perhaps, could not be remembered or discerned, hath been [wantonly] broke in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation.' When a sentiment is expressed, and whether from caution, or from confusion of ideas, a clause is put in by way of qualifying it that turns it into nothing, in this case if we would form a fair estimate of the tendency and probable effect of the whole passage, the way is, I take it, to consider it as if no such clause were there. Nor let this seem strange. Taking the qualification into the account, the sentiment would make no impression on the mind stall: if it makes any, the qualification is dropped, and the mind is affected in the same manner nearly as it would be were the sentiment to stand unqualified. This, I think, we may conclude to be the case with the passage above mentioned. The word `wantonly' is, in pursuance of our Author's standing policy, put in by way of salvo. With it the sentiment is as much as comes to nothing. Without it, it would be extravagant. Yet in this extravagant form it is, probably, if in any, that it passes upon the Reader. The pleasant part of the contrivance is, the mentioning of `Statutes' and `Resolutions' (Resolutions to wit, that is Decisions, of Courts of Justice) in the same breath; as if whether it were by the one of them or the other that a rule of Law was broke in upon, made no difference. By a Resolution indeed, a new Resolution, to break in upon a standing rule, is a practice that in good truth is big with mischief. But this mischief on what does it depend? Upon the rule's being a reasonable one? By no means: but upon its being a standing, an established one. Reasonable or not reasonable, is what makes comparatively but a trifling difference. A new resolution made in the teeth of an old established rule is mischievouson what account? In that it puts men's expectations universally to a fault, and shakes whatever confidence they may have in the stability of any rules of Law, reasonable or not reasonable: that stability on which every thing that is valuable to a man depends. Beneficial be it in ever so high a degree to the party in whose favour it is made, the benefit it is of to him can never be so great as to outweigh the mischief it is of to the community at large. Make the best of it, it is general evil for the sake of partial good. It is what Lord Bacon calls setting the whole house on fire, in order to roast one man's eggs. Here then the salvo is not wanted: a `new resolution can never be acknowledged to be contrary to a standing rule,' but it must on that very account be acknowledged to be wanton.' Let such a resolution be made, and `inconveniences' in abundance will sure enough ensue: and then will appearwhat? not by any means `the wisdom of the rule,' but, what is a very different thing, the folly of breaking in upon it. It were almost superfluous to remark, that nothing of all this applies in general to a statute: though particular Statutes may be conceived that would thwart the course of expectation, and by that means produce mischief in the same way in which it is produced by irregular resolutions. A new statute, it is manifest, cannot, unless it be simply a declaratory one, be made in any case, but it must break in upon some standing rule of Law. With regard to a Statute then to tell us that a `wanton' one has produced `inconveniences,' what is it but to tell us that a thing that has been mischievous has produced mischief? Of this temper are the arguments of all those doating politicians, who, when out of humour with a particular innovation without being able to tell why, set themselves to declaim against all innovation, because it is innovation. It is the nature of owls to hate the light: and it is the nature of those politicians who are wise by rote, to detest every thing that forces them either to find (what, perhaps, is impossible) reasons for a favourite persuasion, or (what is not endurable) to discard it.
- III Comm. 268, at the end of Ch. XVII, which concludes with three pages against Reformation. Our Author had better, perhaps, on this occasion, have kept clear of allegories: he should have considered whether they might not be retorted on him with severe retaliation. He should have considered, that it is not easier to him to turn the Law into a Castle, than it is to the imaginations of impoverished suitors to people it with Harpies. He should have thought of the den of Cacus, to whose enfeebled optics, to whose habits of dark and secret rapine, nothing was so hateful, nothing so dangerous, as the light of day.
- III Comm. 322. It is from the decisions of Courts of Justice that those rules of Law are framed, on the knowledge of which depend the life, the fortune, the liberty of every man in the nation. Of these decisions the Records are, according to our Author (I Comm. 71) the most authentic histories. These Records were, till within these five-and-forty years, in Law-Latin: a language which, upon a high computation, about one man in a thousand used to fancy himself to understand. In this Law-Latin it is that our Author is satisfied they should have been continued, because the pyramids of Egypt have stood longer than the temples of Palmyra. He observes to us, that the Latin language could not express itself on the subject without borrowing a multitude of words from our own: which is to help to convince us that of the two the former is the fittest to be employed. He gives us to understand that, taking it altogether, there could be no room to complain of it, seeing it was not more unintelligible than the jargon of the schoolmen, some passages of which he instances; and then he goes on, `This technical Latin continued in use from the time of its first introduction till the subversion of our ancient constitution under Cromwell; when, among many other innovations on the body of the Law, some for the better and some for the worse, the language of our Records was altered and turned into English. But at the Restoration of King Charles, this novelty was no longer countenanced; the practisers finding it very difficult to express themselves so concisely or significantly in any other language but the Latin. And thus it continued without any sensible inconvenience till about the year 1730, when it was again thought proper that the Proceedings at Law should be done into English, and it was accordingly so ordered by statute 4 Geo. II. c. 26. `This was done (continues our Author) in order that the common people might have knowledge and understanding of what was alleged or done for and against them in the process and pleadings, the judgment and entries in a cause. Which purpose I know not how well it has answered; but am apt to suspect that the people are now, after many years experience, altogether as ignorant in matters of law as before.' In this scornful passage the words noveltydone into Englishapt to suspectaltogether as ignorantsufficiently speak the affection of the mind that dictated it. It is thus that our Author chuckles over the supposed defeat of the Legislature with a fond exultation which all his discretion could not persuade him to suppress. The case is this. A large portion of the body of the Law was, by the bigotry or the artifice of Lawyers, locked up in an illegible character, and in a foreign tongue. The statute he mentions obliged them to give up their hieroglyphics, and to restore the native language to its rights. This was doing much; but it was not doing every thing. Fiction, tautology, technicality, circuity, irregularity, inconsistency remain. But above all the pestilential breath of Fiction poisons the sense of every instrument it comes near. The consequence is, that the Law, and especially that part of it which comes under the topic of Procedure, still wants much of being generally intelligible. The fault then of the Legislature is their not having done enough. His quarrel with them is for having done any thing at all. In doing what they did, they set up a light, which, obscured by many remaining clouds, is still but too apt to prove an ignis fatuus: our Author, instead of calling for those clouds to be removed, deprecates all light, and pleads for total darkness. Not content with representing the alteration as useless, he would persuade us to look upon it as mischievous. He speaks of `inconveniences'. What these inconveniences are it is pleasant to observe. In the first place, many young practisers, spoilt by the indulgence of being permitted to carry on their business in their mother-tongue, know not how to read a Record upon the old plan. `Many Clerks and Attornies', says our Author, `are hardly able to read, much less to understand a Record of so modern a date as the reign of George the First.' What the mighty evil is here, that is to outweigh the mischief of almost universal ignorance, is not altogether clear: Whether it is, that certain Lawyers, in a case that happens very rarely, may be obliged to get assistance: or that the business in such a case may pass from those who do not understand it to those who do. In the next place, he observes to us, `it has much enhanced the expense of all legal proceedings: for since the practisers are confined (for the sake of the stamp-duties, which are thereby considerably increased) to write only a stated number of words in a sheet; and as the English language, through the multitude of its particles, is much more verbose than the Latin; it follows, that the number of sheets must be very much augmented by the change. I would fain persuade myself, were it possible, that this unhappy sophism could have passed upon the inventor. The sum actually levied on the public on that score is, upon the whole, either a proper sum or it is not. If it is, why mention it as an evil? If it is not, what more obvious remedy than to set the duties lower? After all, what seems to be the real evil, notwithstanding our Author's unwillingness to believe it, is, that by means of this alteration, men at large are in a somewhat better way of knowing what their Lawyers are about: and that a disinterested and enterprising Legislator, should happily such an one arise, would now with somewhat less difficulty be able to see before him.
- V. infra, Ch. III. par. 7. p.464.
- In the Seventh Chapter of the First Book. The King has `attributes';[I Comm. 242.] he possesses `ubiquity';[I Comm. Ch. VII. pp. 234, 238, 242. First Edition.] he is `all-perfect and immortal.'[I Comm. Ch. VII. p. 260. First Edition.] These childish paradoxes, begotten upon servility by false wit, are not more adverse to manly sentiment, than to accurate apprehension. Far from contributing to place the institutions they are applied to in any clear point of view, they serve but to dazzle and confound, by giving to Reality the air of Fable. It is true, they are not altogether of our Author's invention: it is he, however, that has revived them, and that with improvements and additions. One might be apt to suppose they were no more than so many transient flashes of ornament: it is quite otherwise. He dwells upon them in sober sadness. The attribute of `ubiquity,' in particular, he lays hold of, and makes it the basis of a chain of reasoning. He spins it out into consequences: he makes one thing `follow' from it, and another thing be so and so `for the same reason:' and he uses emphatic terms, as if for fear he should not be thought to be in earnest. `From the ubiquity', says our Author (1 Comm. p. 260) `it follows, that the King can never be nonsuit; for a nonsuit is the desertion of the suit or action by the non-appearance of the plaintiff in Court.For the same reason also the King is not to appear by his Attorney, as other men do; for he always appears in contemplation of Law in his own proper person.' This is the case so soon as you come to this last sentence of the paragraph. For so long as you are at the last but two, `it is the regal office, and not the royal person, that is always present'. All this is so drily and so strictly true, that it serves as the groundwork of a metaphor that is brought in to embellish and enliven it. The King, we see, is, that is to say is not, present in Court. The King's Judges are present too. So far is plain downright truth. These Judges, then, speaking metaphorically, are so many looking-glasses, which have this singular property, that when a man looks at them, instead of seeing his own face in them, he sees the King's. `His Judges', says our Author, `are the mirror by which the King's image is reflected.'
- The word demonstration may here seem, at first sight, to be out of place. It will be easily perceived that the sense here put upon it is not the same with that in which it is employed by Logicians and Mathematicians. In our own language, indeed, it is not very familiar in any other sense than theirs: but on the Continent it is currently employed in many other sciences. The French, for example, have their demonstrateurs de botanique d'anatomie, de physique experimentale, &c. I use it out of necessity; not knowing of any other that will suit the purpose.
- Let this be taken for a truth upon the authority of Aristotle I mean by those, who like the authority of Aristotle better than that of their own experience, says that philosopher, µ , , . (understand) .Arise. Eth. ad Nic. L. I. c. 1.
- Offences, the Reader will remember, may as well be offences of omission as of commission. I would avoid the embarrassment of making separate mention of such Laws as exert themselves in commanding. `Tis on this account I use the phrase `mode of conduct,' which includes omissions or forbearances, as well as acts.
- Technical reasons: so called from the Greek, which signifies an art, science, or profession. Utility is that standard to which men in general (except in here and there an instance where they are deterred by prejudices of the religious class, or hurried away by the force of what is called sentiment or feeling), Utility, as we have said, is the standard to which they refer a Law or institution in judging of its title to approbation or disapprobation. Men of Law, corrupted by interests, or seduced by illusions, which it is not here our business to display, have deviated from it much more frequently, and with much less reserve. Hence it is that such reasons as pass with Lawyers, and with no one else, have got the name of technical reasons; reasons peculiar to the art, peculiar to the profession.
- The reason of a Law, in short, is no other than the good produced by the mode of conduct which it enjoins, or (which comes to the same thing) the mischief produced by the mode of conduct which it prohibits. This mischief or this good, if they be real, cannot but shew themselves somewhere or other in the shape of pain or pleasure.
- See in the Synoptical Table prefixed to our Author's Analysis, the last page comprehending Book IV.
- It is that which comprises his IVth Book, entitled PUBLIC WRONGS.
- Fragmenta methodi naturalis. LINNAEI Phil. Bot. Tit. Systematica. par. 77.
- This title affords a pertinent instance to exemplify the use that a natural arrangement may be of in repelling an incompetent institution. What I mean is the sort of filthiness that is termed unnatural. This our Author has ranked in his class of Offences against personal security', and, in a subdivision of it, intitled `Corporal injuries.` In so doing, then, he has asserted a fact: he has asserted that the offence in question is an offence against personal security; is a corporal in jury; is, in short, productive of unhappiness in that way. Now this is what, in the case where the act is committed by consent, is manifestly not true. Volenti non fit injuria. If then the Law against the offence in question had no other title to a place in the system than what was founded on this fact, it is plain it would have none. It would be shad Law altogether. The mischief the offence is of to the community in this case is in truth of quite another nature, and would come under quite another class. When against consent, there indeed it does belong really to this class: but then it would come under another name. It would come under that of Rape.
- I think it is Selden, somewhere in his Table-talk, that speaks of a whimsical notion he had hit upon when a school-boy, that with regard to Caesar and Justin, and those other personages of antiquity that gave him so much trouble, there was not a syllable of truth in any thing they said, nor in fact were there ever really any such persons; but that the whole affair was a contrivance of parents to find employment for their children. Much the same sort of notion is that which these technical arrangements are calculated to give us of Jurisprudence: which in them stands represented rather as a game at Crambo for Lawyers to whet their wits at, than as that Science which holds in her hand the happiness of nations. Let us, however, do no man wrong. Where the success has been worse, the difficulty was greater. That detestable chaos of institutions which the Analyst last-mentioned had to do with is still more embarrassed with a technical nomenclature than our own.
- III Comm. Ch. XXIII. p. 387.
- II Comm. Ch. XXI, p.360.
- The difference between a generous and determined affection, and an occasional, and as it were forced contribution, to the cause of reformation, may be seen, I think, in these Commentaries, compared with another celebrated work on the subject of our Jurisprudence. Mr Barrington, whose agreeable Miscellany has done so much towards opening men's eyes upon this subject Mr Barrington, like an active General in the service of the principal and professed purpose of it is, to expose the errors and Public, storms the strongholds of chicane, wheresoever they present themselves, and particularly fictions, without reserve. Our Author, like an artful partizan in the service of the profession, sacrifices a few, as if it were to save the rest. Deplorable, indeed, would have been the student's chance for salutary instruction, did not Mr Barrington's work in so many instances, furnish the antidote to our Author's poisons.