Law. I. Law, as the etymology of the words used to denote it in almost all languages shows, is something laid down, or established. The word, in its rudimentary sense, denoted such modes of dealing and rules of conduct as, in early times, convenience suggested and usage established among men. Long after these modes and rules obtained a general recognition on account of their convenience, there were no regular means of enforcing them; they were observed partly to avoid trials of strength, and partly because their utility disposed men to combine to enforce them. Contentions, accordingly, frequently arose, both in regard to matters within their provisions and without them. When these disturbed society, its sovereign, or his functionaries, interfered to adjust the claims of the disputants. In the judgment between them a rule already adopted by the good sense of the people was recognised, or a new one was laid down, and would thenceforth be taken for the expression of the sovereign's will on the matter to which it referred,—the people would incline to observe it in their subsequent dealings, and expect the sovereign to follow it on future occasions. By and by, to prevent the necessity of constantly interfering to quell such contentions, the sovereign would prescribe general rules applicable to a variety of cases, and threaten to punish whoever failed to observe them. The name of law would now be given to these with a fuller meaning than when it denominated rules of usage. By a law would now be understood a rule of action, prescribed to and enforced upon the people by their sovereign; and this may be said to be the strict and original sense of a law. Many such laws, however, must have existed, and have lost much of the arbitrariness which their origin was calculated to stamp upon them before the compound idea of law became complete in men's minds.
Significations of the term law: its rudimentary and primary senses. A law, then, in its original and strict sense, is a rule of action contained in a command of a sovereign, addressed to, and enforced upon, his subjects. Four distinct ideas are brought together by this definition:—1, That of a will as the source of the law; 2, That of a command; 3, That of the authority from which it proceeds; and, 4, That of the beings to whom it is given, as capable of obeying or disobeying it. Other two are incidentally involved in it:—1, That of the end for which the law is given; and, 2, That of the uniformity of conduct resulting from obedience to it. When a law is said to be a rule, the attributes of permanency and universality are ascribed to it. It is a command addressed to all, or to whole classes, in the state. It is a standing order of society.
Ideas connoted by its definition in its primary sense. The applicability of the penalties, which the giver of the law has expressed the intention to inflict on those who disobey it, constitutes its proper sanction. The sanction is essential to the law; and it is plain that, in order to its having a sanction, the power of its giver must exceed that of those to whom it is addressed. The nature of the authority essential to giving the character of law to the commands of a superior is not so clear. The most precise idea that can be given of it is, that it is such as that of one who is habitually obeyed from whatever cause. The relation of a parent and child is of the same kind as must subsist between a superior and inferior, in order that the commands of the former may be laws. In that relation obedience is the general rule; the child has so often yielded, it thinks not of resisting. It is through the habit of obedience on the part of the people that, in long-established communities, the sovereign's unquestionable authority makes up for his want of superior
power, which must always reside with the people themselves.
So far of the conception of a law. It is an expression of will, in the form of a command, sanctioned by applicable penalties, proceeding from a competent authority, prescribing to free agents a rule of action for a particular end, and resulting, generally, in a uniform line of conduct on the part of those to whom it is given.
The word law was probably first used as a concrete general term to denote all the laws emanating from a particular source; and in this sense it is still used, as in the phrases, "English law," "Roman law." Thus used, it denotes the expression of the whole will of a sovereign power respecting his subjects, so far as it is capable of being, and intended to be, enforced. By a more comprehensive generalization than the preceding it acquired its general abstract signification, and was brought to denote what is common to all laws, emanating from whatever source. In its definition, at this stage, are connoted all the ideas involved in the concrete from which it has been derived.
It remains briefly to explain the derived senses of the term. In its definition in any of these it will be found that the ideas connoted by its primary definition are involved imperfectly, or (some of them) not at all, or in a fuller or more perfect sense. It will also be found that, when employed in any of its transitive meanings, it is always accompanied by some adjective, or words indicative of the source, subject, or character of the rule which it is used to denominate, and so far expository of the generalization by which its use in that sense has been brought about: of this the phrases, "Natural law," "Revealed law," "The law of Nature," "The law of God," are examples. Law without addition is still law in its primary sense. It is obvious that, in that sense, when set forth in general terms, there is nothing to prevent law existing among any intelligent beings between whom the relation of superior and inferior may be established. Thus, "the revealed law"—the expressed will of God prescribing rules of conduct to man under the sanction of divine punishments—is law without addition wherever it is declared, its definition connoting, at their fullest, all the ideas involved in law. On whatever matters this law is declared, it is a rule superior to all others. The ten commandments, and other rules to be found in Scripture, constitute the revealed law in Christian countries. When the phrase, "The Moral law," is used to denote these commandments, it is of course part of the revealed law. Some, indeed, claim divine authority for the moral law,—meaning thereby a body of doctrine as to conduct, derived from conscience, assumed to be the representative of Deity in the heart of man. If "the Revealed law" is law in its highest perfection, "International law" is law in its rudimentary form. It denotes the rules of the relationships of states established by convenience and usage, but enforced by no regular sanction, and which are observed to avoid war, and because their utility disposes states to combine to enforce them.
So far, it is apparent, the term has not travelled far from its original meaning. The next stage of transition, however, is more remarkable. "The law of Reason," or "the law of Nature," is a rule of conduct established by reason. Its ostensible foundations are a knowledge of human nature and certain first principles, as that men should be just, truthful, and humane; and it consists of such rules as philosophers have thereon founded, and have
Law. declared to be universally binding on men. They call them law, because they are rules, as they say, prescribed by reason, under the sanction of immediate feelings of self-disapprobation and of certain remote disadvantages to those who transgress them, which, indeed, reason cannot inflict as penalties, but which it predicts will certainly follow the transgression of the rules. They thus generalize the term to the extent of admitting into its definition certain ideas, not the same, but akin to those connoted by its original definition. Reason may be more properly said to recommend than to prescribe its rules to man. It has ample authority, but wants power; and, though advice given in the tone of authority comes closely up in idea to command, it is only by courtesy that reason can be said to prescribe rules which it cannot enforce. And though its rules are not without a sort of sanction, yet their giver is neither directly nor indirectly the inflictor of the penalties. Lastly, the rules of reason are not dictated by one will to another; but, whatever force they have, they owe to being approved by the reason of him to whom they are addressed.
Natural laws. By a wider generalization than in the case just discussed, all save one of the ideas connoted in the primary definition came, if not to be excluded from, at least to be allowed to enter only implicitly into, the sense of the term. This is the generalization by which it was brought to denote propositions setting forth uniformities obtaining among natural phenomena. When the term law is used, as in the phrase, "The law of gravitation," to denote such an invariable relation of things as that bodies attract each other by a force proportional to their masses directly, and to the squares of the distances between them inversely, what ideas does it involve in common with the same term used to denote a statute of the realm? Prima facie, it is a name given to a statement of fact,—to the formula expressing an invariable relation existing between bodies, involving only the idea of uniformity in common with the concrete from which it was derived. The rationale of this transition is discoverable in the history of science, and the transition itself was less violent than might at first sight appear. Referring the invariable relations of natural phenomena to the Ruler of the universe as the establisher of them, the proposition expressing any one of them, and the fiat by which it was established, are seen to be identical with a change of mood.
Laws in this sense are called natural laws, either ultimate, derivative, or empirical. Ultimate natural laws are those simple uniformities obtaining among phenomena, and arrived at after a sufficient induction; and which cannot be, or as yet have not been, resolved into other and more general uniformities. Such is the law of gravitation. Derivative natural laws depend upon, and are resolvable into, one or more uniformities, which themselves are simple and fundamental. Such is the law of the planetary motions. Empirical laws are derivative natural laws of unknown derivation. Such is the curious numerical relation subsisting between the respective distances of the planets from the sun.
Confusions in the use of the term law. II. The phrases "natural law" and "the law of nature" are perfect equivalents in the sense of science, it not being intended, however, to convey that there is a single simple uniformity to which all natural laws are referable. While their scientific use is thus settled, great confusion exists in their use in writings on law. While some employ them as equivalents, others put them in opposition. By natural laws, some mean those which were observed by men in an imaginary state of existence preceding the establishment of society; while others mean those which, by their constitution, men observe even in society. Some, again, call the "law of reason" "the law of nature;" while others, regarding natural laws as being imposed upon things by the reason of God, and one with the law imposed by reason upon man, give the phrase so wide a meaning as to include under
it both "the law of reason" and natural law in the sense of science. Law.
"To come to the law of nature," says Hooker (Eccl. Polity, The law of book i.), "albeit thereby we sometimes mean that manner of nature and working which God has set for each created thing to keep; natural yet, forasmuch as those things are termed most properly natural agents which keep the law of their kind unwittingly, as the heavens and elements of the world, which 'can do no otherwise than they do;' and forasmuch as are given unto intellectual natures the name of voluntary agents, that so we may distinguish them from the other, expedient it will be that we sever the law of nature observed by the one from that which the other is tied unto." And again, in explanation of the nonconformance of voluntary agents to the "law of nature" to which they are tied:—"See we not plainly that the obedience of creatures unto the law of nature is the stay of the whole world? Notwithstanding, with nature it sometimes cometh to pass as with art. Let Phidias have rude and obstinate stuff to carve, though his art be that it should, his work will lack that beauty which otherwise, in fitter matter, it might have had. He that striketh an instrument with skill, may cause, notwithstanding, a very unpleasant sound, if the string whereon he striketh chance to be incapable of harmony. In the matter whereof natural things consist much of it is sometimes such as will by no means yield to receive that impression which were best and most perfect." Here the law of nature is divided into two parts, according to the division of natural subjects into intelligent and unintelligent; and while each of these divisions is separately spoken of as the law of nature relative to its subject, they are jointly so denominated when said to be the stay of the whole world. Montesquieu (Spirit of Laws, b. i., c. 1) has fallen into the same confusion in language; and both writers agree in charging a defect upon nature in respect of man's nonobservance of "the law of nature," meaning thereby the law imposed upon him by reason.
The difficulty, however, vanishes if we keep in view the different senses of the term law; and notice how, upon human actions, there may be a superimposition of law upon law in different senses. Natural laws may be predicable of them, and, at the same time, and arising out of their constitutional order, they may partly be determined by law in its primary sense, and partly by rules recommended by reason. From the nature of human beings, which is social, and from the natural conditions of their association, sprung government and laws; from their nature also, which is rational, disposing them to acts of generalization and reflection, government and law became the subjects of criticism which evolved the law of reason. Thus, the institutes of the state and of reason grew organically out of the constitution of human beings and society; and it is only when this is lost sight of that the mind gets bewildered by the apparent antithesis between them and the laws of nature. Keeping this in view, it appears how men, while conforming to their constitutional order, may infringe that established by the state, and, at any time, recommended by reason; and this just that the constitutional order to which the others are subordinate may be preserved. The recommendations of reason sometimes proceed from wrong thinking and false views, and fail because they are related to an unrealizable ideal of human perfection; and, again, because reason's ideal is transitory, ever attending, though by reflection projected in advance of, experience—a light at the ship's bow, and not a beacon to steer by. It is only when reason interrogates nature before admonishing man that its rules can be conformed to.
Before concluding this section, notice must be taken of Positive the use of the phrase "positive law." It has been employed in different senses by legislators and men of science; by many of the former to denote law of human institution
Law. by many of the latter to signify natural law. It would be convenient, were there no room for ambiguity, to use it here in the sense of the legists; but, as this cannot be done, it is intended to reject the phrase altogether.
The leading divisions of law: first division. III. The first division of the law of a state is into two portions—the enacted or written, and the unwritten, common, or customary law. The written, or statute law, is the whole expressed will of the supreme power, establishing and regulating the relations of its subjects; and includes all the laws at any time promulgated by the supreme power, so far as not amended or repealed. The common, or customary law, is that which has grown up with popular usages and customs, and taken shape in the decisions of judges. Being unenacted, it falls short of the full idea of law. Civil equity is a part of the law formed from usages and decisions, but differs from the common law, properly so called, sometimes in its subjects, and more frequently in its modes of procedure and relief.
Civil law. The statute and common law together compose the law of the state—comprising the whole body of rules by which it is constituted and governed. This has sometimes been called its civil law, which, in this sense, comprises an important portion of what is commonly called international law—viz., those express rules which determine the relations of the members of the state to those of other states. The name of civil law is, however, more frequently given to that portion of the whole law which relates to the constitution of the subject's rights of person and property.
Second division. The second division of the law of a state is into parts corresponding to the social relations which it governs. 1. The Constitutional Laws relate to the supreme authority, the legislature, and the higher public functionaries, and determine the most essential privileges of the subjects. Such in Great Britain are, among others, the Magna Charta, the Habeas Corpus, and the Reform Act of 1832. 2. The Official Laws relate to the public service, whose different departments, civil, military, naval, and fiscal, they establish and regulate; they secure the public peace, morals, religion, and health, authorize public works, and determine the manner of their execution. 3. The Civil Laws determine the subject's rights of person and property; the regulations and pre-requisites by which they are established, and the manner of administering the laws respecting them. 4. The Criminal Laws define and prohibit offences against the state and the exercise of public authority; and against the lives, persons, and property of the subjects. They determine the means of preventing such offences, and the administration of the law respecting them. 5. Municipal, Police, or Local Law, is only in part a law of the state in the sense of being prescribed by the supreme authority. It includes some general laws relating to the public peace, and special laws relating to the management of local affairs vested in commissions; but chiefly consists of local laws, established on authority delegated by the state,—as bye-laws enacted by burgh magistrates.
Laws create rights and obligations. All the rules and institutions of the law of a state are, directly or indirectly, limitations and definitions of the powers of action of its subjects. It commands certain actions to be always done under circumstances which it defines; and it forbids others to be done under any circumstances. The powers of action which it assigns to and vests in particular persons are their rights. It follows, from the nature of the case, that rights are powers legally vested in persons over their own or others' persons, or over things to obtain services from them,—meaning by a service, whatever tends to gratify a desire. And to rights correspond obligations. The law, in assigning a power to one, necessarily lays all others under the obligation not to interfere with its exercise; and an act in violation of this obligation is a wrong. Wrongs, more briefly, are violations of rights.
Law. Corresponding to rights and wrongs are the legal conceptions of right and wrong. Whatever is conformable to law is right, and whatever is contrary to it is wrong. These Rights and wrongs have other meanings, which, to prevent confusion, must here be indicated. Rights, in the critical doctrine of right and law, are those powers which ought to be vested by law in persons conformably to the rule of perfect benevolence; and wrongs are violations of such rights. Whatever is agreeable to the rule of perfect benevolence is right, and whatever is contrary to it is wrong. It will be seen that rights established by law may differ from those which, according to the critical doctrine, ought to be established; that what is right in law may be wrong according to that doctrine, and vice versa.
IV. The fulness of the idea of law has not been reached The growth by the whole of any system of laws now administered; but of law. in the progress of civilization, the tendency everywhere is towards its realization. Law is, and has always been, in a state of growth and development. History is clear that in the infancy of society men had no idea of regulating their relations on general or uniform principles, and that they knew no rules except such as their natural interconnection established,—a rule approach towards justice between equals; for the rest, the arbitrary rule of power over weakness. In the progress of society, the tendency everywhere has been to widen the dominion of justice and contract that of brute force. In considering this progress, it is to be kept in view that rules of human action are due to the contact and clashing of men with men. The closer men are pressed together by circumstances the brisker is their action on one another, and the more rapid the adjustment of their relationships. The inhabitants of cities soon feel keenly the necessity of rules for their relations, and of combined action for enforcing them. Cities, accordingly, are the centres of all that is denominated by civilization, as the name indicates; they are, ex facie, the birthplaces and nurseries of civility, urbanity, politeness. Among rural populations, from the causes which develop rules of conduct operating in a wider sphere with less intensity, and therefore with less rapidity, the progress is naturally slow, and is mainly effected by influences flowing over from the towns. From a similar cause the progress is slow in the society of nations, and is seen to be accelerated as commerce and improved means of communication bring nations more closely together, and increase the number and weight of their common interests.
The causes of the progress and growth of law are partly to be sought for in the earliest stages of society, regarding which there exists no satisfactory information. In an attempt to explicate them, however, valuable assistance may be derived from various sources. Among these are,—1. The descriptions of early societies in various degrees of savagery which have at different times been given by intelligent observers. 2. Observation of what takes place in the intercourse of nations,—nations forming a society which, from its imperfect organization, and attempts to have laws without a proper sanction, and also in having its origin rather in the necessities than inclinations of its members, resembles all communities in their early stages. 3. The history of law itself, in its different branches, revealing its sources and modes of growth. 4. Observation of what takes place in any new society formed in consequence of the necessities of its members. 5. Observation of the development and tendencies of individuals. From the two last might be deduced the natural conditions of human association, and it was the exclusive consideration of these that led to the fiction of a social compact as the basis of civil society.
This fiction proceeded on the hypothesis, which, however, is wholly without foundation, that society was formed by of society. The aggregation of solitary beings. Society obviously commences in the family: the society of parents into which every human being is born, and in which are to be
found the germs of that subordination to, and recognition of authority which are essential to the civil state; the state where the government is patriarchal is indeed the direct prolongation of the family. As the banyan tends to surround itself with a forest of its own offshoots, so the family tends to multiply families around it, till it becomes the centre of a tribe. The feelings of kindred which connect families in tribes tend, though with a feeble force, to bind tribes together in nations; and the sentiment of humanity, which is the feeling of kindred refined and diffused, tends, though more feebly still, to unite nations in the great society of mankind. While such is the gradual development, the specialities of the composition of families and of tribes vary, of course, with race, geographical position, climate, and the prevailing religious beliefs.
Starting from this very general account of the origin of civil society, it is designed (1), briefly to refer the various bases of law to the necessities of human life to which they correspond; and then (2), to indicate the processes by which laws grew up to protect the various civil institutions. The principal bases of law are four in number:—1, Personal safety; 2, Marriage; 3, Property; 4, Government, each of which must receive brief consideration.
1. Personal safety is the first condition of the enjoyment of existence, for without it man's life would be miserable. The provisions of nature for securing personal safety are the instinct of self-preservation, resentment, and sympathy; by the last of which men are led to combine to secure their common safety.
2. Marriage.—The origin of the institution of marriage is to be found in the instinctive attraction of the sexes. It corresponds to a leading necessity of human life, which would be intolerable without the orderly gratification of the appetites and affections which it affords. Nature's provisions for the perpetuation of the marriage union are twofold:—The causes which produce it continuing to operate for a considerable time tend to prolong it; and, on the birth of children, the co-operation necessary for their preservation develops the domestic affections which tend to maintain it after these causes have ceased to operate. In virtue of these provisions, the rudest savages, it is found, have given a degree of permanence to this union. The necessity of regulating and guarding it must have been early felt; and it is probable that around it laws first began to grow. In some localities the old names for law and marriage are interchangeable. The German word ehe, for example, which now means marriage, meant at one stage of the language also, "law" in general; and ae, the corresponding word in Anglo-Saxon, signifies simply "law." While the institution of marriage is to be everywhere found, as the necessity of human life to which it corresponds is everywhere felt, marked differences appear in the modes of regulating it adopted in different localities. These are due, in every case, to local peculiarities; as to the proportion of males to females,—depending on race, climate, and popular pursuits; and the degree of civil equality among the people—depending on the manner in which the governing persons acquired and maintain their authority.
3. Property.—The institution of property is ultimately referable to the fact of men's wants being such as the earth does not spontaneously satisfy. Were the objects of desire constantly in lavish excess of the demand for them, the idea of property would never have been formed. Whether men's wants were ever so few and simple as that the earth spontaneously supplied them, is more than is known; but it is certain that the condition was very early reached in which the number of human desires, and the difficulty of satisfying them, gave rise to the conception of property in all sorts of objects. The circumstances which give rise to property necessitate the formation of rules for its acquisition and alienation; and owing to the leading realities of social life
being the same everywhere, the same facts are everywhere held to have the qualities of giving rise to property,—viz., pre-occupancy, labour, donation, succession, and contract. The main necessities of life, for example, being procurable only by labour; and there being no motive to labour without security in the enjoyment of its fruits, it is a condition of existence, as well as of social intercourse, that a man shall have the exclusive enjoyment of the fruits of his labour.
4. Government.—Government is the condition of security in the enjoyments of marriage and property. Its institution is traceable to different immediate causes in different localities. Those causes only need here be noticed which are of universal operation, viz.,—1. The desire of security. 2. The experience of the advantages of association for mutual protection and aid, acquired in various forms of association for common objects; as for the purposes of the chase and war, or for mutual protection against domestic enemies. 3. The experience of the necessity of subordination to the leadership of one, in order to reaping the full advantages of association. These having produced a disposition towards government, it required only the rise of a leader, pre-eminent for valour or sagacity, or arrogating authority to himself on grounds connected with the prevailing religious beliefs, to compose the fluent elements of society into the solid fabric of the state.
It would be useless to speculate on the anti-governmental condition of men, if it did not throw light on the causes which lead to government. That condition still crops out, ever and anon, in periods of revolution, and in badly governed countries, in efforts of various kinds to attain the security which the governing persons fail to afford. The recent history of California illustrates it. Every man is at first the defender of his own person and property. When outrages become frequent, a sense of insecurity leads men to combine for the common safety. Offenders are at first punished informally, and without moderation. But when the combination for the public safety acquires solidity, there is less fear of outrage and less precipitation in punishment. Accused persons are admitted to trial, and the execution of punishment is open, formal, and deliberate. Lynch law in America indicates one species of combination which, in a rude state of society, preceded the exercise of the judicial and executive functions of government. A less rude form of association to supplement state-action in affording security may be seen in the societies in England for the prosecution of offenders, many going unpunished for the want of public prosecutors.
Sovereignty is long established before the legislative functions of government are exercised. Its first institutions and acts are those necessary for its own security. Its first agency is for putting down disturbances; its next for preventing them. First, it angrily punishes both parties to disturbances; next, it inquires into the grounds of disputes, and punishes those in the wrong. Lastly, it anticipates disputes by prescribing general rules.
Any view of the order of evolution of law would be false if it excluded the fact of a simultaneous progress in the regulation of the various social relations; but, so far as we know, the order has been that which, on a priori considerations, might be expected. Laws may be said to have first grown round the marriage relation, next round the institution of property; and, lastly, to have referred to the punishment of offences against the person. The right of private vengeance, and the insatiable character of revenge, long prevented the adoption of rules regarding punishments.
The sources whence laws grew up may be said to be its sources, six in number:—1, Equity; 2, Decisions; 3, Contracts; 4, Customs; 5, The will of the sovereign power; and, 6, Opinion acting critically on existing laws. As all laws are referable to nature as their ultimate source, so they acquire their full force only by concurrence with the will of the sovereign.
Law. From the sovereign's will law springs forth full-armed; from equity, decisions, contracts, customs, it grows up slowly, and organically.
Equity. 1. The Birth of Law.—It is impossible to conceive a time when men did not interfere with each other's enjoyments. But as social relations grew in complexity, and the objects of desire multiplied, desires must have more frequently conflicted, and unsocial tendencies increased in number and strength. With unsocial tendencies, however, must have grown up the means of repressing them; otherwise men would not have held together.
When a stronger interfered with a weaker, there was nothing for the latter but to succumb and bide an opportunity of vengeance. In relationships between the stronger and weaker, therefore, the rule was generally the arbitrary will of the stronger. The case was different between equals—resentment directly checking the tendency to interference. When a difference arose between equals, there being no government, or one too weak to interfere, there was nothing for it but to settle the matter amicably, or fight. Hence arose from their intercourse two methods of settling differences—the combat and the reference; the former finally passing into the legal contest, and in many countries becoming the ally of the latter in trial by jury. The combat—at first an off-hand contest, prompted by conflicting desires—was afterwards converted into a formal encounter, and recognised by various nations as a civil means of determining rights. This law of brute force was latterly accepted as an equitable means of settling disputes, from a false view of the dispensation of Providence, and up to a period not very remote, indeed, survived in our own country. Prudence, however, must soon have established among equals a preference in favour of arbitration as a means of settling most questions. The reference would especially be resorted to on minor questions between persons so nearly equal as to make a recourse to force undesirable to them both. On such questions arising, they would first endeavour to come to terms by private discussion; failing in which an amicable settlement would be obtained by a reference to an impartial person of eminence in the community, whose decision, if approved of, would have influence on future cases of a similar description. As the design here is chiefly to trace the spontaneous evolution of law, our remarks will be confined to the case of an amicable settlement by reference to an arbiter; but they will apply, with a slight change, to the decision of disputes by self-constituted umpires, so far as their decision bears on the growth of law.
The disposition of an impartial person judging between equals is equity, which, in other words, is the disposition to act on the best conceptions of right and wrong. Of these the most advanced public opinion, resting on the ripest common experience of what is convenient, is from the first the practical standard; and the desire to act agreeably to this opinion is of the essence of the equitable disposition. Security for the arbiter's endeavour to conform to this standard lies in his desire of approbation; but, in fact, in order to his decision being final, influencing future cases, and thus (as we shall see) passing a principle into law, it must approve itself to the unprejudiced persons cognisant of it, and therefore proceed, pretty nearly, on conceptions of right and wrong drawn from the common experience. These conceptions are the guides of equity, and interpreters of its maxims; and are generated by experience of, and reflection on, the realities of things, and what is convenient to them. Without attempting an explication of the manner of their development, it may be indicated in a single case. The maxim of equity, "Give every man his own," must be interpreted before being acted upon. The disposition to act on it may be complete, and yet there be different opinions as to what should be done depend-
ing on conceptions of the requisites to make a thing "a man's own." The conceptions of these requisites depend on the experience which gave rise to the idea of property in things being vested in particular persons as their rights; and this draws back to certain facts which prudence and convenience concur in leading men to hold to be qualified to give rise to property. A man will defend, as his own, the fruits of his labour, the ground which he has preoccupied, and what has been given to him as a gift. Hence, among equals, labour, pre-occupancy, donation, will at once be recognised as qualified to give titles to property. Experience, then, produces notions of right and wrong, by establishing certain associations between facts and titles to enjoyments. Interpreted by these, the maxim now reads, "Give every man the fruits of his labour; the ground which he has preoccupied; what he has got by gift;" and so on; and it must have been by a generalization from these particular precepts that the maxim was evolved. It is right to give effect to these qualities of facts, and wrong to prevent their operation. So, generally, experience produces associations of legal qualities and facts; and these are modified by reflection. Their trueness to the realities of things will, of course, depend on the fulness of the experience of these realities, and the accuracy of the reflection upon them. The lessons of experience may be misinterpreted by reflection. Experience may demonstrate, for instance, the evils of immoderate revenge, and yet reflection, misled by the idea of proportionality between injuries and punishments, may produce a rule and false conception of what the proportion between them should be, as in the rule "An eye for an eye," "A tooth for a tooth." Before the associations of legal qualities with facts are fixed by law, they are likely to be loose, and different in different minds according to the peculiarities of individual experience; and we are now to consider how they become fixed in the law.
On the reference being made, and the facts founded on by the disputants being laid before the arbiter, his judgment rises into his mind according to the qualities which he associates with the facts. If the dispute respects the property in a thing, he declares it to be his whom the facts favour. Recalling what was said of his disposition, it appears that his judgment, so far as it is what it aims at being, is a verdict of unprejudiced public opinion, and measure of the people's progress in the formation of conceptions of propriety. When, hereafter, it shall be said that equity entered into the rule of a relationship, let it be understood that the rule rested on an equitable judgment, and realized the conception of right respecting the relationship entertained when it was formed.
2. The discussion on the bearing of decisions on law has been anticipated for the principal part, and, for the rest, may best be introduced in showing their bearing on contracts and customs. The origin of law in decisions of arbiters, or of judges interfering to settle disputes, is proved by the fact that the earliest names of law, of right, and of justice, are words signifying decisions or judgments. The progress is easily traceable in the language of the Greeks. Θέμα (from τιθέναι) their old name for law, signified a decision, decree, or rule, laid down in a particular case. Personifying this idea of law, the Greeks regarded Themis as a goddess attached to Zeus, who was conceived of as a judge (and not as a law-maker), issuing θεσμοί to settle particular disputes. Δίκαιον and θέμα at first rarely denoted justice as an abstract conception, but special claims of right; δίκαιον, which came to signify "natural right," is from the same root as δίκαιον, and at first signified a decision. The other Greek names for law, λέγειν (λέγω, to speak), and νόμος (νόμω, to distribute), point also to decisions as the origin of law. (Grote's History of Greece, vol. ii., p. 111.)
3. In proportion to the necessity for arbitration would be Contracts, the desire to rule relationships by contract; and the desire to
prevent differences by ruling relationships by contract would be greater the more they tended to give birth to differences. It is on this principle that the order of the evolution of law is to be explained.
In transactions between equals entered into by contract appeared a farther approach to law. What they agreed upon was the rule of their relationship. What was once satisfactorily the rule of a relationship was repeated. If frequently repeated, it became a custom or usage. Transactions not provided for by contract fell to be decided ex post facto; to these a rule previously acted upon, if there was such, would probably be applied. Where there was no clear rule that could be held to be implied, or that could be agreed upon ex post facto, recourse was had to other means of settling the matter in dispute, as to a reference to an impartial person, whose decision again influenced future cases, and the terms of future contracts. It is thus the terms of decisions and of contracts grow into customs.
It is worth while considering how far equity enters into rules of law derived from contracts whose terms are privately arranged. Where the contractors put themselves into the position of an impartial person, and settle terms from his stand-point, equity directly enters into the terms. The only case for consideration is where their conceptions of right being modelled on their desires, are made to differ from those commonly entertained, and the rule is reached by a process of double position. Here either the rule of the contract is what bystanders approve of, or it is not; only in the former case will it be adopted and passed into custom. Contracts from this source, then, must involve equity to pass into law. That they should often do so, appears from the consideration, that, in advancing to a rule the contractors are forced to recognise equality of advantage as the ideal rule of the contract.
4. We have seen how rules of relationships, formed in the intercourse of equals, pass by arbitration and contract into customs. In early times only equals would submit their differences to the decision of neutral persons, or consent to rule their relationships by contract, because only equals had a common interest in obtaining the settlement of their differences by these means. Equity then entered into all decisions and contracts in early times, and thence into the rules of custom derived from them, and into law, so far as it is an organic growth from the constitution and circumstances of a people. A distinction, already hinted at, must here be brought out between customs due to the intercourse of equals and those due to the intercourse of superiors and inferiors. It was said that from the latter arose no principles for imitation by equals in forming relationships between themselves. It may now be said, that the latter class of customs are permissive and not regulating, and are only for consideration here as illustrating the condition of things from which law gradually rescues men. All the customs that shock one's sense of justice and humanity,—the exposition of infants—the powers of a Roman father over his children,—are remnants of the condition anterior to law, and respect acts and relationships not rescued from that condition, because they lay without the sphere of operation of the causes by which law has everywhere been developed. They are proofs of the slowness of men to extend, by sympathy, to others benefits which, by force, they assert for themselves. That sympathy is among the causes which develop law is certain; but it is only by concurrence with a highly stimulated selfishness that it recovers the relations of superiors and inferiors from arbitrary rule. It is owing to this that law has been, almost everywhere, developed in some degree differently with respect to different classes of the same people. When it was first asserted in cities that law ought to be equal for all, the claim was advanced only for the classes of free men, who were themselves the parties making it; at first
reipublice, peregrini, immigrants, helots, and slaves of every kind, were disallowed equal privileges. Women everywhere, to this day, are without equal rights. One class of our own people reserve the right of being tried by their peers. But it is in the intercourse of nations, who form as yet a rude society, that the truth of the proposition is most noticeable. War is the moderator of the consciences of states. Where success is easy the sense of justice rarely impedes their aggressive tendencies; where it is difficult, their morality shuts them up to non-interference. In Europe, where the states are interested in maintaining the balance of power, an approach to equity is made in the regulation of the relations of states great and small; but outside Europe,—in India, China, Japan, Africa,—the European states practise the morality of superiors, and gratify every desire, however iniquitous, in satisfying which they are not led into conflict with one another. So that the area over which an approach to law has been made in the intercourse of nations is conterminous with that over which the sense of a common interest extends and identifies the security of individual states with that of all. With the widening of that area, and the increasing intensity of that sense, international law will spread and grow. Nowhere is law, local or international, other than that sense, by its direct or indirect operation, constitutes it. How sympathy of itself fails to effect the recovery of the relations of superiors and inferiors from arbitrariness falls not to be explained here. Whoever appreciates what Adam Smith (Moral Sentiments, part 1, sect. 3) has written of the dependence of sympathy on imagination, will have no difficulty in understanding the failure.
It is in virtue of public opinion, originating in the experience of what is conducive to the common good, and mostly supported by the authority of religion, that before government is fairly established, and exercises its judicial and executive functions, customs acquire for the rules which they embody some degree of the force and generality of law. One of the first institutions of government is an agency to give effect to the rules of custom,—functionaries appointed by the sovereign to act as judges taking the place of self-constituted umpires and arbiters. Custom, the highest rudimentary form of law, when its rules are thus administered and enforced by the sovereign, is the highest rudimentary form of law. "It is surprising," says Mr James Mill, "to what an extent over the surface of the whole globe law has, in all ages, remained in that state of imperfect existence, if, indeed, with any propriety it can be called a state of existence. In every part of Asia, in all ages, law has remained in that state of existence or non-existence. In Europe, where, at a pretty early period, it became the practice to record in writing the proceedings of the judges, the natural propensity of referring to the past as a rule for the present, begat in time a species of obligation of being directed by the examples which had already been set. This created a uniformity and certainty which, however imperfect, afforded something better than the arbitrary proceedings of Asiatic judges. Yet this was a benefit which had a dreadful alloy. A body, not of law, but of decisions, out of which, on each particular occasion, a law for that particular occasion, as out of the crude ore, was to be smelted, hammered, and wire-drawn, was the natural material out of which to manufacture a system of chicanes. . . . A system of laws so constructed becomes an instrument of conservation of the barbarous customs and ideas of the times in which they were engendered; and infests society with the evils of an age which it has left behind." Of this effect of custom there will be occasion to write hereafter. By a change of view, however, it is possible to admire instead of deploring that provision of nature by which custom is made to preserve the popular experience, and thus to accumulate the materials which the legislator must employ in attempting
LAW. to perfect the laws of his country. Even under the legislator's superintendence, law is apt to grow up somewhat rankly; and it is well that its growth is so far independent of his care.
The sovereign power. 5. As civilization advances, and government becomes firmly established, the sovereign's judicial function is exchanged for the legislative. He enacts new laws, sometimes arbitrarily, sometimes on a principle, and amends and repeals old rules; or rears up a homogeneous and systematic body of law out of the mass of popular usages. Thereafter this body receives successive differentiations and accretions as popular habits change with new occupations. When the sovereign perceives that his interests and those of the people are identical, and that the subordination of individual interests to those of the community is the principle on which legislation ought to proceed, he makes laws in greater consistency with one another; seeks to anticipate cases, and to make law popular and effective by giving it publicity and certainty. The consideration, however, of the bearings of sovereignty on the growth of law must be postponed until the action of opinion on law has been farther considered.
Opinion acting critically on existing laws. 6. While in the growth of law custom drew in and hugged the accidents of the soil round the rules of equity, opinion, based on these, but expanding with improving conceptions, tended to loosen and remove them. It was at first wavering and divided; then men of speculative minds, orators, poets, philosophers, and ministers of religion, gave it precision and definite direction by their sentiments and doctrines. They refined the rude juridical notions of early times, and gave rise to the maxims which, by approving themselves to popular experience, established the despotism of opinion which met many necessities for which neither laws, nor the actual power of each individual, could provide. Whoever violated the rules approved of by the people, had to dread their resentment. Weakness became formidable to power by being armed with the sympathies of mankind.
The manner in which opinion grew up with law, beginning to grow with its first germs, but rapidly shooting in advance of them, and thereafter always maintaining itself in the advance, may be traced in the history of morality; and as the action of morality on law is among the chief of the influences determining its development, it is particularly important that their relation should be understood.
The rationale of the action of opinion on law is, of itself, simple enough. Experience at once generated rules of action and doctrines respecting conduct; and while use and wont, and convenience, preserved the rules, reflection and riper experience changed the doctrines. The new doctrines, on being propagated, produced popular dispositions, or fell in with them, by which they were in turn passed into rules of law, realized and fixed in the rear of advancing opinion.
Law and morality. The conceptions of right and wrong struck out in the intercourse of equals were the foundations of opinions respecting conduct. As the highest and lowest in society had their co-equals, all partook of instruction in the same principles—in the same school—if in different forms. We have seen that these conceptions rested on associations of legal qualities with facts, induced by experience of the imprudence and inconvenience of preventing these facts operating to vest enjoyments in particular persons. The conceptions of enjoyments, as properly vested in particular persons, are conceptions of rights, and the same experience gave birth to these, and to prudential motives to respect rights. It thus at once gave birth to morality and law. As these prudential motives, and the rules for the regulation of the desires based on them, which afterwards passed into moral rules, existed from the first only relatively to the realities, however rude, of law, morality was at the first dependent on, if not coincident with, law. The argument, from another
Law. point of view, of Dr Whewell (Elements of Morality, vol. i., pp. 36, 37), on the dependence of morality on law, when carried back to the limit, establishes the same position. Its truth, however, rests not wholly on an abstract argument; it is an historical fact, that it is some time before morality and law are discriminated from one another. Mr Grote points out the fact that in the Homeric poems only the germ of the distinction between morality and law can be detected. In a note (vol. ii., p. 110), he quotes Nägelsbach (Homerische Theologie Abschn. V., p. 23), as giving "a just and well-sustained view of the Homeric ethics," which is to the effect that it is their characteristic stand-point "that the spheres of legal right, morality, and religiosity are not as yet at all disengaged from each other—so that a man, for example, could be just without being godly—but exist together in undeveloped unity." They are only conceived of as distinct when, by the advance of morality, law stands out by itself as a rule distinct from moral and religious duty. This advance is due to the fact of law realizing and fixing conceptions of right in rules of custom; while morality freely changes and amplifies them, by reflection, on a riper experience than gave them birth. On the advance taking place, it arose from the necessity of moral rules receiving their interpretation from legal dispositions that morality divided into two portions,—the one steady, relative to law, and creating a disposition to conform to it; the other vague, and contemplating better or more convenient dispositions of things than those realized by law. It thus became in a twofold sense the auxiliary of law, aiding at once in enforcing and improving it. It is by the reciprocal influence of morality (and other advanced forms of opinion) and law that the stability of the social progress is secured, opinion steadied, and excessive inequalities in the development of the classes of society prevented. While critical morality tends to improve popular conceptions, and thus to change the rules of law (or custom), the latter react on the former. Opinion in a state of fluidity, in the front of experience, is constantly washing the law, in its centre, of the impurities of the soil; but these in turn enter into opinion, and tone and colour it. A most noticeable instance of this is pointed out by Adam Smith in the Influence of Custom on the opinions of Plato and Aristotle regarding the exposition of infants. In the view of this reaction must be noticed the tendency to finality in morals as affecting the progress of law. The temporary effect of assigning absoluteness to moral dogmas is to increase their authority; but the final effect is to disqualify them for carrying on the improvement of law. Critical morality in the Critical relative form, with the greatest happiness on the whole of morality, society for its standard of right, continues to be the auxiliary and guide of law, because it aims at no more than investigating rules, the true lessons of experience, which, on being discovered, the instincts of men compel them to practise. And, in fact, since circumstances and convenience determine law, and law interprets the rules of morality, it is impossible to make them absolute or universal except in point of form. Even the moral rules,—Be just, pure, humane,—which, being drawn from the essential institutions of society, exist in the morality of every country in the same terms, can have no greater generality than the corresponding rules of law. Purity in Turkey is consistent with polygamy, and humanity in America with the institution of slavery.
The relation of other forms of advanced opinion to the growth of law is, for a large part, the same as we have above indicated as subsisting between morality and law, the progress effected resulting from the mutual actions of opinion on law, and law on opinion. When the progress has been carried on up to a certain point, the action of advanced opinion becomes more immediate in its effects, taking place on law itself, instead of on popular dispositions. This is when the legislative functions of government
Law. come to be exercised, and the functionaries of the sovereign become the sole administrators of customary rules. The law then lies open to the criticism of persons able to give immediate effect to their views. Judges now venture to change customary rules, modify them to meet new cases as they arise, and extend them to analogous cases; while the sovereign breaks through them and prescribes, and at least appears to enforce, laws wholly new, irrespective of popular faith in their utility. On this stage being reached, it would seem as if the original causes of the growth of law ceased to operate. But, in fact, their action has merely been changed from the direct to the indirect; for it is only by the concurrence of the individual wills of the people that the sovereign possesses his authority; and this concurrence cannot be long maintained except by a line of action on his part conformable to popular dispositions. The changes in law, then, produced by legislative action are not to be regarded as being arbitrary, but as being, in the long run, the effect of the indirect action of the same causes as develop customary law. The truth of this proposition is sufficiently obvious where the sovereignty of the people is asserted, and they possess political liberty. The distribution of political power and authority among the various classes of the people, which is the practical security for good government in which political liberty consists, facilitates their action on the course of legislation. Though, in consideration of the degree to which this security must be relaxed in order to good government, Montesquieu has made political liberty to consist in the opinion of the people that they are free; yet this opinion itself, supposing that there is nothing more, keeps alive a spirit inimical to state action contrary to their interests, and secures the harmony here contended for. But it is immaterial to the proposition what is the character of the political system, or the source of the concurrence on which the sovereign's authority depends.
The argument, on the general case, of M. Comte (Philos. Positive, vol. iv., p. 336, et seq.), is conclusive, and is briefly as follows:—That the political régime is, in the long run, in conformity with the corresponding state of civilization, arises from the fact, that the disturbances manifest in the one are due to equivalent derangements in the other. The theory that attributes to the legislator the permanent power of infringing this harmony supposes him to be armed with a sufficient authority. But authority, like every other social power, is necessarily constituted by a corresponding assent, spontaneous or deliberate, explicit or implicit, of various individual wills, resolved, from certain preparatory convictions, to concur in a common action, of which it is first the organ and then the regulator. Thus, authority is really derived from concurrence, and not concurrence from authority, setting aside the necessary reaction, so that no great power can arise except from the strongly preponderating dispositions of the society in which it is established; and when there are no strongly preponderating popular dispositions, such social powers as exist are necessarily feeble and languid; and this correspondence is the more irresistible the more extensive the society is. That the reaction of the political system—the effect of political institutions and events—on the general system of civilization, is great, must be admitted; but it must not be exaggerated so as to be placed before the primary action. In a scientific view, it is to the concurrence of the two that the fundamental agreement of the social organism is due. To the same effect writes Savigny, in maintaining such an organic connection between law and the character of the people as subsists between the latter and their language and manners. This connection, he says, is manifested in the progress of the times. "For law, as for language, there is no moment of absolute cessation; it is subject to the same movement and development as every other popular tendency; and this very development remains under the same law of in-
All law, in the long run, due to the same causes that develop customary law.
Political liberty.
ward necessity as in its earliest stages. Law grows with the growth, and strengthens with the strength of the people, and finally dies away as the nation loses its nationality. The sum, therefore, of this theory is, that all law is originally formed in the manner in which, in ordinary, but not quite correct language, customary law is said to have been formed; that is, it is first developed by custom and popular faith, next by jurisprudence; everywhere, therefore, by internal silently operating powers, not by the arbitrary will of a lawgiver."
Law. V. Long after men in civil society had experimentally wrought out codes of local law and morality in a degree supplanting the rule of brute force, the intercourse of states was wholly faithless, lawless, and unfriendly. Whoever was not of a state was its enemy, and, by coming within its confines, exposed himself to be enslaved, and his property to be confiscated. This in times when there were between them no special grounds of quarrel. In war they ravaged and depopulated each other's countries without mercy, massacring alike armed men and helpless women and children, or sparing them only to make them slaves. Such were the relations of states in Greece in the times of its greatest philosophers; and such the principles on which Rome for seven centuries made war on the world. The ancient moralists, homologating the savage traditions of their times, enforced them by precepts. Nor is this to be wondered at, looking to the effect of custom on opinion alluded to in tracing the growth of local law. Every universal result and exercise of brute force the world agrees to hold legitimate: witness the—at one time—universal institution of slavery. Nor is this agreement anywhere broken up, till it becomes the common interest, through the balance of forces, that the rule of force be abandoned. The balance of forces, however produced and maintained, is the first condition of the birth and growth of law. This is especially clear of international law. It originated in the intercourse of states so nearly equal in power as to be formidable to one another, and between whom, in time, grew up the habit of mutual forbearance. They adopted rules of their various relations on the principle of reciprocity, from the mutual convenience of comity and fear of retaliation. These, embodied in mutual contracts, tacit or express, passed into customs, and were supported, in time, by public opinion amongst nations, resting on the sense of their utility, and the respect for usage. Then this opinion tended to cause the principles of these rules to be applied to the relations of the great and small states; while, concurrently, the mutual jealousies of the great powers tended to widen the area of the common interest, by, in effect, producing a balance of forces between themselves and the less. These principles, being thus diffused, were next made more just and humane, by circumstances which added new common interests to those which the fear of their respective forces, and the perception of the advantages of comity, at first created between states. Among these were the institution of the order of knighthood; the crusades, which united men of many nations in a common action; and chiefly the Romish Church, whose ministers spread over Europe, imbued with the spirit of Roman justice, and sustained by the authority of the pontiffs, tempered the rude disorders of the European family. Then criticism, to which Grotius first gave shape, applying the principles of local justice to the relations of states, helped on the cause of humanity by giving definite direction to the sentiments of the leading minds in various nations, and by, finally, through a succession of teachers, transfusing the better classes of all societies with enlightened views of the duties of nations. But there was another developing cause. The relations of nations were, from the first, affected by the experience of the advantages of commercial intercourse. It is to commerce mainly that we owe the steady increase of the respect to humanity, perceptible
Law. in their intercourse in modern times. By bringing men of various nations face to face, it destroys their local prejudices and antipathies, and while widening their sympathies, it directs them by manifest and sensible interests. Its effects, as a developing cause of international law, have already been so powerful, that an augury of what they may hereafter be, though reasonable, would to most appear fanciful. It is rapidly assimilating the mercantile codes of all the nations in the world, and stripping war of its ugliest features one by one: it is daily making clearer the demonstration, that the interests of nations press them from all sides not to go to war at all, and is thereby undermining the military system. That it will henceforth still more powerfully and rapidly conduce to the harmonious adjustment of international relations, is guaranteed by the steady progress of nations in the industrial arts, and by the inventions that, facilitating their inter-communication, increase its advantages. Wherever a nation has a market, it has an interest that order and prosperity should there prevail. As the subjects of various nations are brought into close and constant intercourse, as the number and weight of their common interests are increased, and as, through the press, their literatures are freely interchanged, they will more and more nearly approach towards sameness of views and sentiments; and be led by that instinct which impels men everywhere to what is advantageous, to concur in desiring that disputes between nations should be adjusted on the principles of equity. The more just and definite rules of international law become, the more obvious will be the advantage of observing them and the mischievousness of war, and it will be seen that the alternative should be dreadful to justify the resort to so clumsy, ineffectual, and horrible an expedient. Public opinion in the various states, resting on the manifest utility and justice of observing the equal rules of international law, will then bind down governments to respect them; while, being everywhere guided by the same leading ideas and principles, it will be distinctly pronounced, and secure a preponderance of sympathy and active assistance from nations to any state whose rights are violated.
While such are the principal developing causes of international law, the inequalities of development of the various nations composing the society of mankind, the varieties of their forms of government, and the mutual jealousies of the governing persons in societies of different constitutions, are among the principal of the causes which have retarded it. But in the growth of international, as of local law, the principles of human nature are seen steadily operating towards the just and harmonious settlement of the relations of men. Hereafter, as hitherto, its progress must be worked out experimentally; and that it will be continued is insured in the great society of mankind, as the progress of civil law is insured within the smaller compass of individual states, by the concurrence of the desires of individuals for happiness, and the common experience that the largest measure of durable good is obtainable only in the way of justice. It is in the view of this security that the scientific truth of the faith, that "all things work together for good" is perceived; for it guarantees that in the long run all mights must perish that are exercised prejudicially to the interests of mankind.
VI. In the view of law being everywhere, in the long run, the result of the habitual sentiments of the people, it remains briefly to notice the principal popular tendencies that affect its progress. A tendency, that has almost everywhere been influential, is to conceive one's self out of society in what is called "the state of nature;" and, with the feelings and ideas of society, to consider the faculties of action one would then have. From this sprung the popular conceptions of "natural rights," which, favouring strong desires, and being easily (if vaguely) formed, have powerfully affected politi-
cal systems; to an extent beneficially, by balancing the tendency of sovereigns to arbitrary rule; to an extent also injuriously, by throwing society, in moments of heat, into confusion. The desire of liberty from legal restraints, one of its manifestations, deserves consideration, because its strength depends on errors that may readily be exposed. "Natural liberty," or the liberty a man would have in the "state of nature," as opposed to what he has in society, is unintelligible in so far as the "state of nature" of man is society. But the idea is, that it is the liberty a man would have in the solitary state, or in a society without laws or government. It appears at first as if a man by relinquishing either of these for a governed society lost a portion of his liberty. But if liberty be defined to be greater or less according to the number of ways in which a man may exercise all his faculties, the number of objects on which he may exercise them, and the extent to which they may be exercised, it is greater in a governed society than in either of the states supposed. However great may be a man's liberty of action in these, he wants, as has well been said, the materials for it. Many of his noblest faculties are exercisable only in a governed society in which others are developed to a degree of activity unattainable in the so-called state of nature. Government and laws subordinating individual to public interests, and prescribing the modes and limits of social activities, establish order and security—the guarantees of human happiness; and while, in a sense, abridging men's liberties, so increase the materials on which the faculties left with them may be exercised as on the whole greatly to enlarge their freedom in the truest sense. The definition of civil liberty which places it in the freedom from legal obligation left, or granted, by the supreme power to its subjects, opens the way to the desire of "natural liberty" as the perfection of freedom. Its true definition destroys that desire. Civil liberty is analogous to what natural liberty really is. As this consists of freedom of action, uncontrolled save by the wise laws and dispositions of nature by which the harmony and welfare of the world are secured; so that consists in freedom of action, uncontrolled save by such wise and benevolent laws as are necessary for the harmony and welfare of the state. This definition agrees substantially with that given by Sir James Mackintosh (The Theory of the Laws of Nature and Nations), when he places liberty in security against wrong. It turns round the tendency from which aspirations after savagery arise, and makes it conduce to the perfection of law and government. The desire for equal laws must here be briefly noticed, from its having acted healthfully on systems of laws. It grew up with the conception of law as designed to secure the public good, and is to be distinguished from the sentimental longing for an equal distribution of the objects of desire among the members of society. It demands security to all in the enjoyment of the fruits of their industry, and that none shall be laid under any obligation with respect to another under which the latter is not put equally with respect to him. The obstacles to the realization of equal laws are,—1, The necessity for government, which requires that the multitude shall always be subordinated to their rulers; and 2, The selfishness of the governing classes. But supposing laws equalized up to the point consistent with government, they might still fall short of the character which law should have according to the latest conception of it. According to this The latest conception of law, it is an active force, restricting and directing the various social activities, so as, though in small part, beneficially to determine the character of the social progress. So long as law is determined solely by present convenience, it may fail of securing what is conceived to be its proper end—the permanent welfare of society.
VII. Preparatory to the inquiry how this latest conception of law from its modes of growth, to see of growth, it will be well briefly to exhibit the defects incidental to law from its modes of growth, to see of growth. Defects incidental to
tion.
what is the knowledge necessary for their rectification. Law branches out in different directions corresponding to its different sources—common law to popular customs—statute law (immediately) to the will of the sovereign—civil equity to certain defects of statute and common law, which it partly rectifies. The first defects, then, to be noticed are four.—1. Defect of consistency between the principles in its different branches. 2. Defect of cognoscibility due to their number, and their being mostly welded into cases, and the difficulties of ascertaining which of them apply to new cases that occur. 3. Defect of equity. That there should be positive defects of equity in the rules of statute and common law, looking to their later stages, is plain enough, considering how often the sovereign's immediate interests conflict with those of the people, and the limits within which authority may be abused without exciting a corrective popular reaction, and how often circumstances warp the judgments of the most conscientious judges. 4. Defects due to its tenacity in carrying forward into one age the imperfect modes of dealing, and forms of expression peculiar to another. These four everywhere tend to work out their own rectification, by producing obvious intricacy and confusion in the administration of justice, and inconvenience and positive injustice in the regulation of relationships. Accepting its rules as having been equitable when formed, it remains to point out their possible defects as discovered in the progress of experience and opinion. These are two, the one due to over-generality or over-particularity in the definitions of the relationships of which they are the rules; the other due to errors in the guiding conceptions of equity at the date of their formation. Instances of the first defect are to be found in plenty in decisions of courts of equity. The "appeal to God," as a means of testing a suspected person, resting on a misconception of the method of the divine government, is an instance of the second. On the belief that the operation of natural laws was always suspended or altered to shield innocence or detect guilt, the test was reasonable, and rules of evidence applying it equitable. Their unreasonableness was only discovered on the falsity of that belief being ex-
posed. A third defect, akin to this, is due to defect of prevision—a short-sighted policy forming rules that soon work injuriously.
It appears, then, that, so far as concerns law related to justice, the knowledge necessary to cure its defects must include,—1. Correct conceptions of the general cases to be provided for, from which the cases to be exempted from the general rules will at once appear; 2. Correct conceptions of the natural relations of persons and things and their tendencies to change. These demonstrate what the associations between facts and rights, and what rights themselves ought to be, and, had they existed, would have prevented the barbarous laws of evidence above alluded to. The knowledge necessary for the perfection of law related to the determination of the phenomena of society, remains to be treated of in the next part of this article. It will be found to include that necessary for the rectification of law related to justice. "In everything that relates to practice," says Lord Bacon, "we must make up our account as to what is in our power, and what not. For, in the former, alteration is allowed, but, in the latter, application merely. The husbandman hath no power over either the nature of the soil or the weather; nor the physician over the natural frame and constitution of the patient or the variety of accidents. But in the cultivation of the mind, and the healing of its disorders, three things come under consideration—the different characters of disposition, the ailments, and the remedies; as also in the treatment of bodily diseases, these three things are brought under our notice—the habit or constitution of the patient, the disease, and the cure. But of these three, the last only is in our power, not so the two first. But we must make no less careful inquiry into those matters which are beyond our power than into those which are within it. For a distinct and accurate knowledge of them must form the basis of a doctrine respecting the remedies, in order that these may be applied more skilfully and successfully." The remarks here made as to the body and mind of a man, and their treatment, apply directly to the frame and constitution of society, and to legislative action upon it.
PART II.—LEGISLATION.
1. It has been ascertained from the study of the growth of law, that, in the long run, both the laws and political system of a people are reflexes of their habitual sentiments, and tend to change as these do. It follows that a scientific knowledge of the tendencies of human nature and society is the only safe basis of legislative action.
laws.
The assumption, in every speculation on laws, must be, that they ought so to govern men as to secure the greatest good, on the whole, of society. The test of the goodness of laws is their fitness to secure this good. But of this there can be no test, if the phenomena of society are not subject to natural laws. Whether they are, depends on whether the law of causality applies to human actions; for if it does, social phenomena are certainly subject to natural laws, because they wholly result from the concurrence of the actions of individual men.
Universal experience favours the conclusion that the law of causality applies to human actions. 1. If it did not apply, there could neither be universal principles as to the formation of character, nor could we have the idea of character. But we have that idea, and constantly assume that it is possible to foretell the conduct of one whose character and exact situation are known. 2. In threatening punishments to counteract the motives to offences, the assumption is, that between motives, volitions, and actions there exists the relation of cause and effect. 3. Every one is conscious of the force of circumstantial evidence. Evidence of this sort, in courts of justice, consists usually of two parts,—(1.) Evidence that the accused had a sufficient motive to commit the
offence charged on him; (2.) Evidence that he did commit it. The force of the first part is due to the universal conviction that no one does anything without a motive, and that when a man has a motive he acts upon it, unless it be counteracted. The links of the circumstances which make up the second part are supplied by our conviction that certain actions must have followed the mediate actions indicative of purposes that enter into the circumstances. 4. Whoever has to influence another calculates, from his knowledge of the person's character, what inducements are most likely to weigh with him. He appeals "to the avarice of the miser, the honour of the gentleman, the probity of the man of virtue," and so confesses his practical belief that "motives determine the will as necessarily as acids act upon alkalies" (Abercromby's Intellectual Powers). 5. Spontaneous actions are not separated from, but stand in the front of, the general class: they are due either to direct physical causes, or to dispositions of mind towards certain volitions, originating in deliberations at first consciously preceding them, but at length dispensed with as leading to known conclusions. Whatever is true of actions generally, therefore, is true of spontaneous actions.
That the law of causality applies to human actions may be held, then, to be a truth established by universal experience. It is, in fact, "as palpable and universal as that bodies have weight." It follows that the phenomena of society, which result from the concurrence of the actions of individuals, must be ruled by natural laws derived from those of individual life. It is therefore possible, speaking
Legisla-
tion. apart from difficulties due to the complexity of social phenomena, for the legislator to obtain scientific guidance in acting on society.
To show how the knowledge which is to yield this guidance is to be obtained, we must briefly inquire into the sciences of human nature and of society. Whoever desires fuller information on these sciences should study the admirable essay of Mr J. S. Mill on the "Logic of the Moral Sciences," Logic, vol. ii.; and M. Comte's Philos. Positive. The science of human nature, as it must be constructed for practical purposes, aims at investigating the laws according to which circumstances affect character and conduct. Owing to the diversities of individual experience, and the fact that every event which happens to a man affects, in some mode or degree, his subsequent mental history, it would be unreasonable to expect that the generalizations men make respecting the feelings or actions of mankind, without reference to the causes which determine them, should be anything but approximate. They are, in fact, of the nature of empirical laws; and unless we have resolved them into the laws of the causes upon which they depend, and ascertained that those causes extend to the cases which we have in view, no reliance can be placed on inferences from them to those cases. The saying, that the old are cautious, is not a scientific truth, but an approximate generalization only; the scientific truth is, that contact with difficulty and danger tends to make men cautious. This causal law at once explains the saying, and gives us the limiting principle of our reliance on it. The investigation of such causal laws is the object of the science of human nature. "The science of human nature," says Mr J. S. Mill, "may be said to exist in proportion as those approximate truths which compose a practical knowledge of mankind can be exhibited as corollaries from the universal laws of human nature on which they rest, whereby the proper limits of those approximate truths would be shown, and we should be enabled to deduce others from any new state of circumstances in anticipation of specific experience. . . . Men do not all feel and act alike in the same circumstances; but it is possible to determine what makes one man, in a given position, feel and act in one way, another in another; how any given mode of feeling and conduct, compatible with the general laws (physical and mental) of human nature, has been or may be formed. In other words, mankind have not one universal character, but there exist universal laws of the formation of character. And since it is by these laws, combined with the facts of each particular case, that the whole of the phenomena of human action and feeling are produced, it is upon these that every rational attempt to construct the science of human nature in the concrete, and for practical purposes, must proceed" (Logic of the Moral Sciences). The nature of these causal or "ethological" laws, as they have been called by Mr Mill, will now be understood. They must be deduced from the general laws of mind, experimentally investigated by psychology, by supposing sets of circumstances, and then considering what, according to the laws of mind, will be the influence of those circumstances on the formation of character.
The science
of society. The science of society investigates the laws by which, in the first instance, social phenomena are harmonized, and, in the next, by which they tend to change. Hence its division into two sciences (Social Statics and Social Dynamics), kept distinct for the sake of convenience, but really parts of one, and corresponding to two aspects of the same theory. Social Statics considers the interconnection of the parts of society, and the laws by which they are harmonized; Social Dynamics considers the tendencies of social phenomena to change, and investigates the laws by which one state of society tends to generate another, and by which social effects react on their causes, and determine the nature of the social progress.
As the causes of social phenomena arise from the composition of the causes of individual phenomena, their laws are derivative from those of psychology and ethology. Hence, however sociological laws may be investigated, it is in their agreement with the laws of psychology and ethology that their verification must be looked for.
Legisla-
tion. The investigation of sociological laws may be conducted on two methods, separately and conjunctively:—1. By deducing social laws from the general laws of mind, and verifying them by deductions from history. 2. By deducing social laws from history, and verifying them by the general laws of mind. M. Comte is of opinion, that the latter method is the only one strictly applicable to sociology. Mr Mill, in assigning importance to the former, admits that a social science formed on that method would be a science of tendencies, and not of positive predictions. "We may be able," he says, "to conclude from the laws of human nature applied to the circumstances of a given state of society, that a particular cause will operate in a certain manner, unless counteracted; but we can never be assured to what extent or amount it will so operate, or affirm with certainty, that it will not be counteracted; because we can seldom know, even approximately, all the agencies which may exist with it, and still less calculate the collective result of so many combined elements. The remark, however, must here be once more repeated, that knowledge insufficient for prediction may be most valuable for guidance. It is not necessary, for the wise conduct of the affairs of society, no more than of any man's private concerns, that we should be able to foresee infallibly the results of what we do. We must seek our objects by means which may, perhaps, be defeated, and take precautions against dangers which possibly may never be realized. The aim of practical politics is to surround the society which is under our superintendence with the greatest possible number of circumstances of which the tendencies are beneficial, and to remove and counteract, as far as practicable, those of which the tendencies are injurious. A knowledge of the tendencies only, though without the power of actually predicting their conjunct result, gives us, to a certain extent, this power." M. Comte, regarding the social science as essentially consisting of generalizations from history, verified by deductions from the laws of human nature, seeks to construct it as a science, not of tendencies, but of positive predictions. If the guidance promised by Mr Mill falls short of the scientific prevision promised by M. Comte, it can be much more easily obtained.
The leading idea of social science, as conceived by M. Comte, is, that society must be regarded as a whole, and singular social facts as strictly inseparable from the whole. There is no doubt that this is the scientific conception of society; but the main difficulties of perfecting social science are connected with this conception. M. Comte is, however, of opinion, that once the leading ideas of the science have been seized, every observation of human nature, and impression from the events of life, will become of value as a sociological indication in aid of the historical method of investigating social laws. He thinks that when men come to make observations on society, with the social theory to guide them to what to observe, the facility afforded by the mutual relation of its various aspects will, in part, compensate for the difficulty caused by that mutual connection,—the inseparableness of the parts from the whole, while rendering observation more difficult, thus providing more means for its prosecution. Mr Mill, however, in anticipation of the arrival of the period when the science will reap the advantages of observations thus conducted, proposes to create several sub-departments of sociological inquiry, and thus to facilitate observation by confining it. The conclusions arrived at in these independent departments must, of course, be less exact, and afford less safe guidance than those of
tion.
ethology.
the general science. But, as Mr Mill observes, the exactness of science must give place to practical convenience and utility in the science of society, as in astronomy; and there appears to be no good reason, supposing cases can be found analogous to that of the moon, where the effects, though contributed to by many, are principally due to one or two causes, why, in sociology as in astronomy, there should not be isolated theories, the approximate character of their conclusions not being lost sight of. M. Comte, however, contends that the cases are not analogous, and that in sociology the isolation of effects and their specific causes is strictly inadmissible. Such sub-departments of social science have, notwithstanding, been formed. For instance, political economy is isolated from general social science, and devoted to the investigation of the laws of the creation and distribution of wealth—its approximations resting on the operation of a single law of human nature, that men prefer a greater gain to a smaller. Among the sub-departments thus formed or projected, is political ethology (Mill's Logic of the Moral Sciences), the science of the causes which determine the type of character belonging to a people or an age. This science investigates the effects of institutions or social arrangements upon national character and conduct, and thus corresponds immediately to the legislative art.
Sociological problems come in one or other of two forms:—1, Given a certain general condition of social circumstances, to determine the effect of a given cause; or, 2, What are the laws which determine the circumstances themselves? Sociology, as a science of tendencies, answers the first, by demonstrating the tendencies of particular causes under assumed conditions of circumstances: when the actual conditions differ from these, the practitioner, recurring to the principles of the science, must endeavour to take the omitted circumstances into account, or to omit the superlative circumstances, as the case may be. It answers the second by investigating the laws by which one state of society generates another. With regard to the first, Mr Mill is of opinion that it would be an error to suppose that, by deduction from the principles of human nature, we could arrive at any great number of propositions which will be true in all societies without exception. "Such a supposition," he says, "would be inconsistent with the eminently modifiable nature of social phenomena, and the multitude and variety of the circumstances by which they are modified—circumstances never the same, or even nearly the same, in too different societies, or in two different periods of the same society. Every cause, as its effects spread through society, comes somewhere in contact with different sets of agencies, and thus has its effects on some of the social phenomena, differently modified; and these differences, by their reaction, produce a difference even in those of the effects which would otherwise have been the same. We can never, therefore, affirm with certainty, that a cause which has a particular tendency in one people or in one age, will have exactly the same tendency in another, without referring back to our premises, and performing over again for the second age or nation that analysis of the whole of its influencing circumstances which we had already performed for the first. The deductive science of society does not lay down a theorem, asserting in one universal manner the effect of any cause; but rather teaches us how to frame the proper theorem for the circumstances of any given case. It does not give us the laws of society in general, but the means of determining the phenomena of any given society from the particular elements or data of that society." The
consideration of the second form of the social problem is less necessary to our purpose than that of the first, and would lead farther into the methods of general social science than is consistent with the limits of this article.
It will by this time be seen that the function of sociology is to supply the legislator with general rules and principles for solving particular practical problems; and that there can be no science of law separate from the science of society. When the legislator has to act in any case, he may consult the science as to the consequences of his acting in a given way, or as to the way in which he should act to accomplish a proposed end; as to whether the end proposed is itself practicable and desirable, or as to what end it would be most desirable to accomplish, looking to the good of society. Legislation is the art of applying the middle principles of sociology; and the general rules which it borrows from the science, together with certain art-principles of its own, make up its whole theory.
II. It remains to consider the nature and limits of the modifications of social phenomena producible by legislative measures.
There are here two guiding principles,—1, That events subjected to invariable laws are susceptible of modification in proportion to their complexity; and, 2, That the changes are producible by affecting their intensity and secondary operation, but not their nature or filiation. The postures into which an automaton may be thrown increase in number with the number of its joints, while each joint definitely prescribes a peculiar motion to the portion of the figure in which it is situated, and, in a degree, determines the fashion of all the postures. When there are many joints, an indefinite number of postures are readily producible, while it is vain to attempt to throw the figure into any one for which a single joint would have to yield a motion contrary to its nature. The case of a ship at sea, moving between the points up to which it can be made to sail to the wind, illustrates the same principles. In this, and every case of a combination of causes, the producible modifications are more numerous and easily effected the more numerous the causes are, and the ways in which they may be resolved, so as to vary their joint effect.
Coming now to legislative action on the complex phenomena of society, the former principle guarantees its facility, while the latter assigns its limits. It may be stated, in general terms, that it is limited by the sociological laws of harmony and succession; and that, within the limits prescribed by them, it must operate by affecting their intensity and secondary operation. This is no more than is intended by Adam Smith (Moral Sentiments, vol. ii., p. 84), when, in terms equally general, he describes the man of system as going on "to establish his plan of government in every point, as if he could arrange the members of a great society as he could arrange chessmen, neglectful that each has a principle of motion of his own." "For the rest," to quote M. Comte (Philosophie Positive, vol. iv., p. 401), "having ascertained the existence of general limits of variation peculiar to social phenomena, and especially of the modifications dependent upon systematic political action, and the scientific principle which is to give the character and limits of such modifications; it belongs to the direct development of social science to determine, in each case, the influence and actual reach of this general principle, by a special appreciation of the corresponding situation. It is by such appreciations, made empirically, that those men of genius who have really exercised a great and profound influence on humanity, in any way whatever, have been guided."
1 Accepting the definition of evil, that it is the result "of the non-adaptation of constitutions to conditions," the consciousness of our power to modify phenomena so as to accommodate constitutions to conditions, within certain limits, must be accepted as the ultimate source of our feeling of responsibility. The legislator's duties and responsibilities unquestionably depend on his having the power to determine the course of social events more happily than they would be determined in the natural progress.
Looking exclusively to the conditions of the existence, the cohesion, and coherence of society, it is possible to assign a few of the limits beyond which laws cannot, at least, as conditions of the existence of individuals; 4, The union of man and woman; 5, The procreation of children; and, 6, Their education as conditions of the existence of the species. It seems to have been the opinion of Ulpian, that the jus naturale could not be infringed beyond a certain point without fatal, or, up to that point, without pernicious consequences. The limit might be partially transgressed, as in the institution of slavery; but not safely or consistently with the public welfare. (2.) A second, if less obvious limit is set by the conditions of popular health, mental and physical. Unless the restrictions on the actions of the people, set by the laws, be compatible with the healthful exercise of their physical and mental faculties, these will decay, and the people become stupid, brutish, weak in mind and body, and unfitted for the cultivation of the arts, both of peace and war. A society, governed by such cramping rules, will either decay, or fall before foreign enemies; or the people, throwing off their bonds, will constitute it anew. (3.) A third limit seems to be set by the conditions of popular activity in the directions of agriculture and commerce. The laws must allow to the people such property in land, and in the profits of trade, as will stimulate them to these pursuits. (4.) A fourth limit is set by the conditions of the sovereign's authority. These seem to be three in number,—1, There must be a system of education, disciplining the subject to merge his individual good in that of the state; 2, There must be among the people a feeling of loyalty; and, 3, A feeling of nationality. If the legislator destroys the subject's respect for his authority, or interrupts the process of discipline on which that respect and the love of country depend, he endangers his own power and the state's existence.
The preceding limits are likely to be pressed upon only under despotic governments; those now to be indicated may be approached under any government, and are not so easily assigned. Speaking generally, they are the limits beyond which the law cannot safely be relaxed. No society can hold together without laws, or usages with the force of law, to give reality to the conceptions of morality. The question is, what relations of the subject may, with safety, to the state, be left free of legal regulation. The question, in this form, is too broad to be answered. But relations may be specified which cannot safely be left without regulation, and thus the question may be answered indirectly. We said that the laws must permit the union of the sexes; here we say that they must regulate that union by defining marriage, the modes of constituting and dissolving it, and its consequences. We said that the laws must permit the existence of private property; we say here that they must define it, and regulate the modes of its transmission and alienation, and give security, in its enjoyment, to its owners. If Proudhon's doctrine had been realized in France, it would have been a case of the relaxation of law beyond a limit of legislation.
Many limits might be conceived to be set to legislation by the character of the people in different states. In a country where, under a free government, the people are frank, outspoken, and loyal, if not always cautious in their language, the dogmas of the freedom of the press, liberty of conscience, and the sovereignty of the people, set limits to legislation,
which in other countries do not exist. Opposite limits, in fact, would be set to legislation in a country where the people were excitable, visionary, easily led by novel ideas, and lived under a despotism. If in such a country the laws were relaxed to permit the freedom of the press, government and social order might be endangered.
Over-legislation.—The consideration of the limits beyond which the laws ought not to be relaxed is closely allied to the inquiry, What are the relations which ought to be exempted from legal regulation? The answer, in general terms, is, that they are those with which the state cannot beneficially interfere, or which can be regulated with equal or greater advantage by the people themselves. What these are cannot be generally defined. They must be discovered by an appreciation of the whole circumstances of the particular cases, the propriety of interfering with which is questioned; and this appreciation must include the secondary and more remote consequences of instituting laws for these cases. A law designed to eradicate evils due to one relationship being without rule, may, by disturbing others, induce collateral evils which may, on the whole, exceed those it eradicates. Such relationships may be more beneficially regulated by the people themselves than by law, their rules changing with those who enter into them, as in the case of the commercial relation which the free-trade agitation in this country lately relieved from legal restraints. As discovery is made of the relations which may beneficially be freed from state control, the laws will obviously diminish in number. It is in this view that Dugald Stewart observes, that it might easily be shown that the greater part of the political disorders existing among mankind rise from politicians "having trusted too little to the operations of those simple institutions which nature and justice recommend; and, of consequence, that as society advances to its perfection, the number of laws may be expected to diminish instead of increasing, and the science of legislation to be gradually simplified."
The number of laws will also diminish as legislation is freed from empiricism. The empirical procedure makes legislation endless; it demands a measure to meet an evil, and a measure to meet an evil produced by a measure; and so on, till the legislature, restlessly touching society on all sides, increases beyond calculation the complexity of its phenomena, and its own difficulty in acting upon them; and till society, over and above its natural laws, which are few and simple, finds its action restricted by 20,000 statutes and 100 volumes of common law decisions. "Society, a living, growing organism, placed within apparatuses of dead, rigid, mechanical formulas, cannot fail to be hampered and pinched" (Herbert Spencer, Over-legislation). It is in view of the evils of much legislation on empirical principles, that Mr. Spencer, in his able essay on the subject of this section, maintains that the primary state duty is to protect each individual against others; that to this it should be confined; and that all state action with the view of protecting individuals against themselves must be prejudicial. "Badly," he says, "as government discharges its true duties, any other duties committed to it are likely to be still worse discharged. To guard its subjects against aggression, either individual or national, is a straightforward and tolerably simple matter; to regulate, directly or indirectly, the personal actions of these subjects is an infinitely complicated matter. It is one thing to secure to each man the unhindered power to pursue his own good; it is a widely different thing to pursue the good for him. To do the first efficiently, the state has merely to look on while its citizens act; to forbid unfairness; to adjudicate when called on; and to enforce restitution for injuries. To do the last efficiently, it must become an ubiquitous worker, must know each man's need better than he knows it himself; must, in short, possess superhuman power and intelli-
tion.
gence." That there is much truth in this view might be established on consideration of the official laws which form the bulk of the legislative enactments of our own parliaments. But admitting that empirical politicians do, and must continue to, commit many mistakes in extending state action beyond what is ordinarily conceived to be the sphere of the administration of justice; and that many social relationships ought to be exempted from legal rule; we are far from assenting to the general proposition maintained by Mr Spencer, in the sense in which he maintains it, viz., that "till social requirements are fulfilled in a spontaneous way, they should not be fulfilled at all." The examination of the reasoning on which this doctrine is rested is the more necessary, from its being held to be fundamental by a growing school of politicians.
Mr Spencer's argument, which it is impossible to represent here in full, is briefly as follows:—Legislators, to act beneficially on society, should satisfy its wants in the order of their importance. But "to select out of an immense number of minor wants, physical, intellectual, and moral, felt in different degrees by different classes, and by a total mass, varying in every case, the want that is most pressing, is a task which no legislature can accomplish." Therefore legislators can never beneficially interfere to satisfy the minor wants of society; and, therefore, till such wants are satisfied by social vitality, they should not be satisfied at all. If this argument is well founded, legislation should be abandoned in every state advanced in civilization, and in which, of necessity, all the leading wants of society have already been satisfied. But it is not to be admitted that the mischief occasioned by state action arises from its liability to satisfy less social needs before greater. Mr Spencer has, in our opinion, in no instance clearly traced the evil of measures to their satisfying the needs of society out of their order; and, besides, his doctrine on this point appears to rest on grounds far too narrow to support it, viz., "that to effect a neglected thing by artificially employing citizens to do it, is to leave undone some more important thing which they would have been doing." The argument here turns (1.) on the presumed withdrawal from "social vitality" of the few officials needed to accomplish public objects; and, (2.) on the assumption that social vitality always satisfies social needs in the order of their importance. The presumption on the first point surely should be, on his own principles, and considering the comparatively small numbers of public officials, that "the more important thing" will be independently effected by social vitality. On the second point, we object that, supposing the assumption to be strictly correct, it extends to minor social needs, and the order of their satisfaction, through state agencies. The separation of the phenomena of legislation from the general phenomena of society is altogether inadmissible. The protest which Mr Spencer and others have raised against much legislation may have a healthful influence on the disposition at present prevailing in this country to trust to state action principally, or solely, for remedying social evils; but, judging from the facts, there can be no doubt of the vigorous existence of that disposition, and, so far, that the extended state action complained of is but an instance of social effort administering to social desire. But, granting the distinction between the cases of the leading necessities and minor wants of society, by which Mr Spencer meets this objection, to be good, it is untrue that the "minor" desires of society do, in the actual course of things, get satisfied in the order of their strength and of the importance of the wants to which they correspond. The order of actual satisfaction depends, in a secondary degree, upon the relative strength of desires, and, in a primary degree, on the opportunities that occur, or may be created, for their being satisfied. The strongest desire stimulating to activity to produce its opportunity, is satisfied after the weakest that grows up on an opportunity presenting itself.
In this view, while the social activities in different directions are proportioned to the strength of the desires which induce them, collateral circumstances conspire with them, and make the order of satisfaction different from what it would be if dependent solely on the degrees of activity. Though then it were to be desired in acting on society, that satisfaction should be given to its needs in the order of their importance, it would be strictly impossible always to satisfy them in that order, because of the conspiracy of causes by which the social harmony is constantly secured. But to conclude from this that state action following any other order must, on that account simply, be mischievous, and that such action should therefore, beyond a narrow conception of the sphere of justice, be altogether suspended, seems to be a serious error. On similar premises, a similar conclusion, applicable to family groups, would, in a large measure, arrest systematic efforts at education of every kind, and forbid individuals to mutually assist one another.
So far as the legislator is concerned, justice is the disposition to do whatever the good of society requires to be done; and that this is more than to stand by and see fair play between the subjects in their transactions touching property, and their principal personal relations, is evident from many acts of beneficial legislation that readily suggest themselves. For example, the ravages committed annually by small-pox in this country, and the culpable neglect, or the ignorance, of the laws of self-preservation, which led large classes of the people to omit vaccination, and consequently to endanger their own lives, and those of others, presented a proper conjunction of circumstances for legislative intervention. The law passed relative to that conjunction to save certain sections of the people from the consequences of their own ignorance or recklessness, operated to save others, better informed and more prudent, from danger. It was a simple case of justice; for our personal security ought to be guaranteed as well against the consequences of men's stupidity and folly, as against those of their passions; and laws protecting society, by making the improvidence of individuals penal in certain cases, are really, though not morally, in the same category with criminal laws. The same example furnishes proof that it may be necessary in some cases to satisfy desires out of the order in which they actually manifest themselves. Multitudes omitted to have themselves vaccinated, though in most districts provisions existed for having the operation freely performed. The desire of life, stronger than all others when life is in immediate danger, is one of the weakest in providing for distant contingencies, readily yielding to the aversion to a small exertion for a remote benefit; and the want of laws for the protection of health, measured by it, is accordingly small in periods of popular health. But in providing for this want at such a time, the state satisfies a need which then, indeed, is less than many others, but which becomes the greatest of all, when disease invades the people. In fact, it appears to be one of the leading duties of the legislature to aid the spontaneous action of society in that class of cases in which experience shows that the people are liable to sacrifice their true to their immediate interests. Granted that the mode of solution of all social problems must be experimental; yet the lessons of experience become manifest long before itself becomes painful enough to compel men to reduce them to practice. And although experience will ultimately lead the people to adopt, of their own accord, the rules necessary to be observed under their circumstances, yet surely it is the duty of the legislator to save them from the pains of experience, wherever his foresight enables him to do so, by prescribing these rules to them at once.
"It is," says Burke, "one of the finest problems in legislation, and what has often engaged my thoughts, whilst I followed that profession, 'what the state ought to take upon
itself to direct by public wisdom, and what it ought to leave, with as little interference as possible, to individual discretion.' Nothing, certainly, can be laid down on the subject that will not admit of exceptions, many permanent, some occasional. But the clearest line of distinction that I could draw, whilst I had my chalk to draw any line, was this,—that the state ought to confine itself to what regards the state, or the creatures of the state, namely, the exterior establishment of its religion; its magistracy; its revenue; its military force by sea and land; the corporations that owe their existence to its fiat; in a word, to every thing that is truly and properly public; to the public peace, to the public safety, to the public order, to the public prosperity. In its preventive police, it ought to be sparing of its effects, and to employ means, rather few, infrequent, and strong, than many and frequent, and, of course (as they multiply their puny politic race, and dwindle), small and feeble. Statesmen who know themselves well, with the dignity which belongs to wisdom, proceed only in this, their superior orb and first mover of their duty, steadily, vigilantly, severely, courageously: whatever remains will, in a manner, provide for itself. But as they descend from a state to a province, from a province to a parish, and from a parish to a private house, they go on accelerated in their fall. They cannot do the lower duty; and in proportion as they try it, they will certainly fail in the higher. They ought to know the different departments of things; what belongs to laws, and what manners alone can regulate. To these, great politicians can give a leaning, but they cannot give a law. Our legislature has fallen into this fault, as well as other governments. All have fallen into it more or less. Even the limits here, vaguely enough defined, are, or at least some of them, too wide and general. The fact is, no general limits are here assignable. As already stated, the duty of the state must be pronounced on from case to case, on an appreciation of the whole circumstances of cases, and calculation of the probable effects on society of state interference with them.
III. Jurisprudence and Legislation.—We must here, for the sake of completeness, give a brief account of the different senses in which the terms Legislation and Jurisprudence have been employed by different writers, and indicate the divisions of our subject which remain for discussion.
The words jurisprudence and legislation have been employed in many senses. Legislation at one time denoted the science explaining the principles from which law ought to be universally derived, and their application to particular countries; recently it has been employed to represent that portion of the law of a state directly derived from the supreme authority in its legislative capacity; and in this sense it is distinguished in France from jurisprudence, or that portion of the law derived from judicial decisions. In the former sense, again, legislation, or the science of law as it ought to be, has been distinguished from jurisprudence, or
the knowledge of law as it is (Austin's Province of Jurisprudence). On the other hand, jurisprudence, or juris (Whewell's Elements of Morality), has, both of old and recently, been employed to signify the doctrine of rights and obligations, or the science of law; and legislation to signify the art of applying the principles of the science of law (Bentham, Fragment on Government). In this latter sense, jurisprudence, under the qualification of "natural" or "universal," has had various provinces assigned to it. Adam Smith (Moral Sentiments, vol. ii.), speaking of the civil and criminal laws of particular countries, observes, that the principles upon which those rules either are or ought to be founded are the subject of the science of natural jurisprudence. The same functions have been assigned by various writers to universal jurisprudence, which again has been limited by others to the investigation of the principles common to the laws of all countries. Sir James Mackintosh uses jurisprudence by itself in the sense assigned above to universal jurisprudence, and again in a sense in which it is difficult to say whether he does not mean it to stand for the whole body of municipal law (Sir James Mackintosh, Study of the Law of Nature and Nations, Works, vol. i., p. 381). Carmignani, again, uses the word legislation to signify "the science of establishing law," and thus distinguishes it from jurisprudence, or "the science of the application of law;" and this is the sense in which Mr James Mill uses the word jurisprudence when he says that it has nothing to do with the constitution of rights, or the adapting them to the requirement of universal benevolence, but that its object is to show the best means of protecting rights that exist, whatever they are.
Not to dwell on the misuse of the word "science" in most of the above cited applications of these terms, it has been shown that, strictly, there can be no science of law separate from the general science of sociology. Political ethology converts the theorems of social science into rules of policy, and legislation is the art of applying these rules to particular cases; and the general rules and maxims of policy derived from the science, together with its peculiar art principles, make up the whole theory of legislation. The part of this theory derived from the science must differ for different societies as their states differ; but the principles of law-making—the art rules of legislation—rest on the general laws of human nature, and are everywhere the same. The rules of jurisprudence have the same generality, its principles being maxims of reason based on experience of what is essential to the protection of rights, whatever they are. Parting here, then, with the theory of law as connected with social science, and assuming the rights which ought to be established to be ascertained, two topics remain for consideration; the mode of establishing rights, to be considered under the head "Law-making;" and the mode of protecting rights, to be considered under the head "Jurisprudence."
PART III.—LAW-MAKING.
Under this head is to be considered how the constitution of the legislature affects its operations, and how laws may best be authenticated, promulgated, and preserved.
I. From the fact that practical and speculative talents are rarely combined in the same men in the highest degree, the practice of legislation ought to be separated from its theory, the practical function falling to the man of affairs, the consultative to the man of science. Between these, however, there should be perfect sympathy and mutual reliance, to secure what Mr Macaulay calls "the just temper of practical and speculative" which should characterize the perfect legislature. If the scientific authority necessary to secure this sympathy existed, the legislature would naturally divide
itself into the following departments:—1, Statistical, taking cognizance of the state of society; 2, Propositional, suggesting ends as desirable under the circumstances of society; 3, Solutional, applying the principles of science to determine how these ends may best be secured; 4, Practical, employing the art-rules of legislation in embodying in laws, and giving effect to, the recommendations of the solutional department. Of these departments, the first and third would fall to be presided over by men of science; and the second and fourth, by men of affairs. It is needless carrying this conception of a legislature farther, as there nowhere exists a sufficient weight of settled belief on social subjects to make its realization possible. Pending the creation of a scientific
authority on these subjects to repress the tendencies of despotism on the one hand, and popular passions on the other, there is little chance of legislative action being anywhere very wisely or consistently prosecuted. Should such an authority ever arise, it will, in effect, destroy the distinctions of governments. Notwithstanding the opinion of Hobbes, that men would deny the propositions of geometry, if they anywise affected their interest, it is the fact that conclusions from these propositions are never questioned, though daily applied to human affairs. It cannot escape observation either, that in our own legislature contests no longer occur on questions on which even the imperfect science of political economy has unequivocally pronounced. As social questions are rescued from conjecture and empiricism, the area of political agreement widens. Co-operation is facilitated by the clearness of common interests, and the manifest convergence in the distance of opposite immediate interests.
At present, it is only under a despotism that a principled course of legislation can be pursued; that is, prima facie, the circumstances under which civil liberty could be made most nearly perfect, leave no security for its preservation. The conditions of civil and political liberty are, from the nature of things, in a large measure, opposed to one another. The one is identified with good laws, in security for which the other consists; and almost every condition of beneficial legislation is a relaxation of this security. This security must consist in such a distribution of political authority as that it shall preponderate in no person or class, so as to be exercisable to the prejudice of other persons and classes. Suppose political authority to be equally distributed, the people must, in order to having a legislature, delegate their authority to a few of their number. On this the security, looking away from the influence of public opinion, is measured by their power of making their representatives attend to their wishes; and this practically by the frequency of elections. But the more frequent these are, the more difficult it is to secure qualified legislators, and continuity in legislative operations. The security, again, is greater the less the separate constituencies are. But the less these are, the greater will the legislative assembly be, and the less its capacity for concert and deliberation. The choice, then, is between a small legislature and security, and a large legislature, forced by its unwieldiness to repeat the process of representation, and entrust affairs to a ministry capable of being influenced only at second-hand by the people; in which case, likewise, the security is diminished. In the second case, the conditions of good government are repeated: the assembly must relax its control over ministers. Ministers, again, for the right conduct of affairs, must divide the departments of the administration between them, and be each left free, to a considerable extent, in the conduct of his department. So far the conditions of obtaining good laws and government are relaxations of the security for them, and make it almost imaginary. But, even when it is thus relaxed, the form in which it is taken is unfavourable. Majorities only being represented, the legislature is only partially representative of the people; and, again, majorities of the representatives determine the course of legislation. So that social evils pressing on the minority, or even on the whole community, may long go unredressed, if, in the one case, a majority of the people, in the other of the representatives, would be inconvenienced by redressing them. The action of constituencies on representatives, again, tends to convert what should be the deliberative assembly into the scene of conflicts of immediate interests rather than reasons; and in harmony with the character of the legislative assembly are the means resorted to of influencing its proceedings,—political agitations without it, and party combinations within it. In the absence of a sufficient authority on public questions, principles are loosely held, and readily yielded to the necessity of com-
bining to carry particular measures. In the balance of the conservative and movement parties, small knots of men obtain an influence on legislation wholly disproportioned to their numbers and the interests they represent, and this opens the way to political immorality. Ministers, overtasked with the duties of their departments, and having, in the fever of party struggles, to initiate legal and social reforms, approach divisions on grave questions only after exhausting ingenuity in delays, among the means of obtaining which is excessive petty legislation; and in the struggles of parties, interests on which the people cannot easily be excited—those related to the administration of justice, for instance—are neglected. Great measures are passed only in an excited and unwholesome state of the body politic; and the alternative is between state inaction and state activity when all the circumstances are unfavourable to reasonable legislation. While deplorable defects in legislation are thus traceable to constitutional securities for good laws and government, what is, after all, the chief security for the latter—the facilities for promptly bringing public opinion to bear on public men, and the sensitiveness to that opinion which, in the history of a free country, has been developed in them, is not a whit more favourable to good legislation; public opinion being itself generally as divided as opinion within the legislature. But if political liberty be thus unfavourable to civil liberty, it keeps alive the spirit of independence and the energies of the people, and makes them prosperous in defiance of bad laws. It has been truly observed, that the sense of security and independence is as essential to the advancement of society as to the comfort of individuals; and, without seeking unduly to disparage the laws of England, she may be instanced as an example of a nation maintained in her rank by the feeling of freedom, in spite of grievous defects in her institutions and laws, incidental to the modes in which her people have had, historically, to struggle for, and maintain their liberties. And, in fact, it is a question, for the satisfactory settlement of which there are no sufficient data, whether, in the present state of our knowledge, the whole phenomena of a nation could be more beneficially determined under the wisest and most benevolent despotism than amid the struggles of opposite interests under a popular government.
It would be out of place here to do more than glance at the subject of government, with which the inquiry into the constitution of the legislature is allied. The reader must refer to the article on that subject. But, in conclusion, of the brief, and necessarily unsatisfactory remarks here presented, it is necessary to repeat, that the main distinctions of governments will disappear should science ever rescue social questions from the waste of opinion. Such a government as our own will then show to the greatest advantage. The importance of the separation of legislative, judicial, and executive functions, characteristic of a balanced government, will then most clearly appear; the inclination to despotism as favourable to good legislation will be removed in the presence of a scientific authority; and with the means of obtaining good laws, we shall have ready provided the best means of administering them. In the transition state, a balanced government, as compared with a despotism, is what a raft is to a ship. The one, trim and rapid in its movements, sails up to the sunken rock on which it strikes; while the other, unsteady and oscillating in all its parts, but safe in the inherent coherency and buoyancy of its materials, passes on always with perfect security, though in constant and immediate contact with the source of danger.
II. The evils arising from judge-legislation have been frequently, ably, and eloquently exhibited during the last half century; but it is fitting that the question respecting it should be here discussed, because it bids fair to continue for some time to be one of public interest. For the same
Law-making. reason it is here considered in its relation to the state of the law in our own country.
The common or unwritten law. The common law is embodied in a great number of written and printed records—the reports of decisions of courts of justice pronounced from time to time over centuries. But though its rules are enacted for cases as they occur, the fiction is that they have existed from of old, and are not enacted but declared. According to this fiction, common law consists of a published and unpublished part—the latter latent and unknown till declared; while the former, though declared, can scarcely be said to be known, for it is liable to be made to give place to newly-discovered portions of the old law. The judges who declare its rules do not know them relative to new cases till they have decided them. When such cases occur they have to make inquiry what the law is. In this inquiry they are guided by the analogies of the new cases to old ones. The pleadings before them are, as Paley observes, "a competition of opposite analogies," the best of which are entitled to prevail. When the analogies are few and faint, they decide the case according to their notions of the requirements of "reason and justice" respecting it; and having once pronounced a decision, they are bound to adhere to it, unless it be "flatly absurd and unjust" (Blackstone's Commentary, vol. i., p. 70), of which themselves are the sole judges. So that at any time they may make new rules, and unmake old ones, provided they can bring themselves to consider them absurd and unjust.
Objections to judge-legislation. The objections to this species of legislation have been brought by Sir Samuel Romilly under six heads. 1. Judge-made law is necessarily an ex post facto rule. "It governs all past as well as all future transactions. Property, which has been purchased or transmitted by descent to the present possessor of it, is discovered by the newly declared law to belong to others; actions which were thought to be innocent turn out to be criminal, and there is no security for men's possessions, their persons, or their liberties" (Edinburgh Review, xxix. 228). 2. In making laws the judges are compelled to proceed almost wholly on technical reasons. "They are forbidden to entertain any of the considerations which ought most to influence the judgments of those who are avowedly employed in making laws. What will most tend to promote the general good, or what is best adapted to the present habits and modes of thinking of mankind, the judicial legislator is bound to disregard. He is to consider not what would be the best law on any given subject that could be made; but what law was most likely to have been made upon it at the remote period when the common law is supposed to have had its origin. All his researches tend to discover, not how the evil which has occurred may best be remedied, but in what manner it is probable that, in a very different state of society, the matter would have been ordered." Hence the anomaly of the two main branches of law growing on opposite principles; the one, by analogies, drawing nourishment from the judicial debris of centuries; the other expanding on the principles of expediency. 3. Judge-made law is an uncertain rule. 4. Judge-made law wants generality of application. The judge-legislator is forbidden to give a comprehensive rule. He must restrict the law to the particular case before him, and take the narrowest view of that case. He thus loses every opportunity that presents itself of giving a rule to include many possible cases as well as that before him; and while terminating a litigation, does little towards defining the law and precluding future contests—as analogous cases will be found to differ in some respects from one another, and from that decided. The opinions which he may offer on such cases in illustrating his decisions are treated by his successors as extra-judicial, and of no authority. 5. Judge-legislators may be, and often are, unqualified to legislate on particular cases, on which, however, it falls to them to legislate. The
branches of legal study are various, and the studies of most lawyers are special. When lawyers mount the bench they are esteemed qualified on all branches of law alike, and to legislate on all subjects whatever which chance may bring before them. 6. Judge-made law is made by men over whom the people have no control. "Our legislators here," says Sir Samuel Romilly, "have been, not the representatives of our choice, but often the servile instruments of our monarchs."
This species of legislation, however, has its advocates—Arguments especially among the judges. Successive governments have for more than twenty years held it settled that the unwritten criminal law at least should be reduced to statute; but the reform has yet to be accomplished. When the Lord Chancellor Cranworth, in 1853, submitted specimen criminal-law bills digesting the whole law relating to the definition and punishment of offences to the judges for their opinions, they, with one exception (Chief Justice Jervis), deprecated the attempt to reduce the unwritten law to statute.
"The rules of the common law," said Mr Baron Parke, "are clear and well understood, and they have the incalculable advantage of being capable of application to new combinations of circumstances perpetually occurring, which are decided, when they arise, by inference and analogy to them, and upon the principles on which they rest." "To reduce the statute law into a narrow compass," said Mr Justice Talfourd, "is an object entirely free from objection, and which, if accomplished with care, can produce nothing but good; but to reduce unwritten law to statute is to discard one of the greatest blessings we have for ages enjoyed in rules capable of flexible application." "It seems to me," said Mr Baron Alderson, "to be a very unwise thing to abolish the common law principles of decision, which can accommodate themselves to the varying circumstances of the time; and thus, as it were, to stereotype them, by act of parliament, in verbal definitions, many of them inaccurate." Lord Mansfield is reported to have entertained a similar opinion of its merits; holding that "the common law, which works itself pure by rules drawn from the fountains of justice," is superior to an act of parliament (Atkyn's Reports, vol. i., 32, 33).
From their statements on the subject, we gather that the Objections arguments in favour of this species of law are:—1, That it to the re- is prepared for all cases; 2 (which is the first argument in duction of a different form), That its rules are capable of flexible applica- unwritten law to sta- tion. While the objections to its reduction to statute are, —1, That its principles are so interwoven with the circum- tute. stances of cases that they cannot be taken up from their contexts and separately enunciated; 2, That supposing the unwritten law converted into statute, the uncertainties of the interpretation, to say nothing of the errors of its definitions, would exceed those of the law as it stands; and, 3, It is maintained by some, that the same degree of logical coherence as the common law possesses cannot be given to written law. The value of the arguments in favour of unwritten law will best appear in an examination of the objections to reducing it to statute, to which we pass on with the remark that at the worst, supposing written law cannot be made to meet all cases, the discretion which the judges now have would have to be left with them so far as concerns distinctly new cases.
The first objection is inconsistent with the assertion of First objec- the judges, that they find the common law rules clear, and tion. easily applicable to all sorts of cases. It cannot be clear what the rules are, and yet be impossible to say what they are. In applying them the judge necessarily lifts their principles out of their old connection, and plants them in new circumstances; and, in explaining them, in applying them, he can neither come nearer to them, nor apply them more correctly than he has language in which accurately to express them. In other words, the errors in the judges' application of the principles have for their measure, so far,
the errors in their definitions of the principles. The question, then, is not whether the rules and principles can be defined with perfect accuracy, so as to be transferred in their integrity into statute; but is between the errors of the definitions in a written law,—the definitions being made by the men best qualified for the work, the body of judges themselves, for instance,—and the errors of the definitions of the same rules committed by the same men, individually, in applying them. There can be but one answer to this question; that definitions made, we may say, on the moment, are likely to be more erroneous than those made on consultation and deliberation; and that the errors committal by judges, in applying common law rules, are, so far, likely to be greater than they might be if the rules were deliberately defined in statute. The alleged facility of judgment is incompatible with the impossibility of defining the law, unless, by the flexibility of its rules, it be understood that they readily take whatever shape the judges choose to give them. And, in fact, we are forced to understand it in this sense. It is not that the judges easily apply the rules of law,—that, according to themselves, cannot be done,—but rules, it may be, wrong in principle, but having the "incalculable advantage" of being easily applied. Their position is, that they do not administer law at all, but a species of equity.
The flexibility of the common law rules is one of the principal objections to them; so long as it exists, decisions must be capricious, and the law uncertain. Whoever has often heard the common law declared must be aware of the unsatisfactoriness of the reasons occasionally assigned for it; the words "reason and justice" filling up arguments based on shadowy distinctions, and on a few, selected from many, of the analogies presented by cases, on no principle, or one vaguely expressed. What Beccaria has said of the discretion of judges to decide according to "the spirit of the law," applies to their making the law itself. "The spirit of the law," he says (Essay on Crimes and Punishments, p. 22), "will be the result of the good or bad logic of the judge; and this will depend on his good or bad digestion, on the violence of his passions, . . . and on all those little circumstances which change the appearance of things in the fluctuating mind of man." Selden's condemnation of equity is also directly applicable. "For law," he says, "we have a measure, and we know what we trust to. Equity is according to the conscience of him who is chancellor; and as that is larger or narrower so is equity. 'Tis all one as if they should make the standard of measure of the chancellor's foot" (Table Talk). "Certainty," says Lord Bacon, "is so essential to law, that a law without it cannot be just; . . . and it is a true maxim, that the best law leaves least to the breast of the judge."
If, then, the definitions of written law may be made more closely to approximate to the full and accurate expression of common law rules and principles than the definition of the same rules and principles made by the judges in applying them from case to case; and if, by defining them, we in a degree destroy their present uncertainty, there can be no doubt so far as to the desirableness of transmuting the common into written law. Even were it not clear that the definitions may be improved, the certainty gained by fixing them would almost of itself atone for their imperfections, especially as these must soon appear and be amended.
As to the second objection, it is incredible that the analogies of cases do not offer wider scope for misjudgment and uncertainty than the meanings of statutory words. It is argued, indeed, as if the liability to error from the ambiguities of language lay wholly with judgments proceeding on statute. But the probable errors are less in interpreting statute law than common, because the ambiguities multiply with the words to be interpreted, and because the definitions of statute law are short compared with the ac-
counts of circumstances, and the comments of legislators and judges, through which alone the common law rules can be known. No doubt, in reducing the law to writing, a discretion of interpretation must be given to the judge instead of that taken from him; but then its exercise will at once consume it, so that the new discretion will both be less dangerous and shorter lived than the old. And this is all that it concerns us to know. That the definitions of the written law can never be made perfect, or the discretion of the judge be wholly removed, is nothing to the purpose; it is sufficient that its imperfections, and the errors committal in its application, may be made less than those of the common law as now administered. Those who glory in the capacity of the common law of "working itself pure" should not grudge to endow written law with a degree of the same capacity.
The coherency which can be given to written law, it is Third objection, is less than the unwritten law possesses. The question is, whether it is likely that a system branching from well-defined general principles into particular applications of them can be made to observe a greater logical coherence than is presented by a system that, beginning in rude and indefinite principles, has spread by the aid of analogies and technical reasons, under the superintendence of a great many minds of every shade of intellectual capacity and conscientiousness. The question contains its own answer. It has been well put by Mr Empson (art. LEGISLATION, 7th ed. Encyclopædia Britannica), who makes, for the sake of argument, a concession to the common law not due to it—that its original principles were general and sound. "Of the two presumptions," he asks, "which is more probable,—that the qualities of systematic coherence and dialectic deducibility will be the natural accompaniments of a system which branches from sound general principles into particular didactic regulations; or that they will be the artificial consequences of a fictitious system built on an interminable series of specialties called precedents, especially when it is considered that the very element of case law involves so many points of variation that, on any occasion, nobody can be sure that he is not exercising his logic upon a different set of precedents, or upon those specialties in the self same precedent which, after all, the judge may consider as not properly applicable to the case? There are embodied, in almost every precedent, opposite analogies, with sundry hanging threads attached to them, any one of which a judge, who is a little capricious, may lay hold of at his pleasure."
III. The discretion left to the judges is only one source Unmanage- of the uncertainty of the common law; if they were per- able mass of the law. mitted to give comprehensive rules for general cases, its uncertainty would probably be less than it is. The rapidity with which case law accumulates may be judged from an inspection of the annual volumes of reported decisions. According to Blackstone, the common law was long ago so great that it could only be perfectly known by a twenty years' study. No sensible man, even in the legal profession, now attempts to acquire a perfect knowledge of it; judges themselves are contented to know it at second-hand from unauthorized comments on conflicting decisions; and even the commentators occasionally disagree as to its rules. Nor is the mass of the statute law less. Every session of parliament adds to it often as many as a hundred statutes; which rarely cancel statutes previously in force on the same subjects, so as to be amended and uniform substitutes for them; but are commonly designed to amend acts that previously amended others; or to confirm and strengthen former statutes in like cases while adding or altering some particulars as to their operation. New statute rules thus rarely stand clear and intelligible apart from the mass of the law, but are welded into and lost in it; "whence sometimes follows that torture of Menutius
whereby the living laws are killed in the embraces of the dead ones." Even the projectors of the Criminal Law Bills, already referred to as designed to consolidate and digest the whole law relating to the definition and punishment of offences, thought fit to propose only partially to repeal thirty-one acts relating to offences of the thirty-three set forth in the schedules to the bills; and of those which they proposed partially to repeal, many they designed to repeal only in parts or sections. Of the 7th and 8th George IV., chap. 29, for instance, they would repeal only certain sections, and of these eighteen only partially. On this system of law-making, the more active our legislators are, the more confused the law becomes. "There are at this moment" (1842), says Mr Burton, "upwards of 130 statutes, more or less in force, in regard to the stamp laws; and since he wrote legislation on stamps has been active. It is thus that the statute law is brought into as great uncertainty as the common law. The number of statutes is now ten times greater than when Bacon complained, "So great is the accumulation of the statutes, so often do they cross each other, and so intricate are they, that the certainty of the law is lost in the heap." When we look at the accumulation since his day, the story will be credited of a four days' debate by learned advocates before a Master of the Rolls (Sir William Grant) on the interpretation of a statute, which was afterwards discovered to have been repealed! As will (in view of the uncertainty of the common law) the truth of the report of a saying of Lord Eldon (Earl of Radnor v. Shaftes, 11 Vesey, p. 453), "Having had doubts upon this will for twenty years, there can be no use in taking more time to consider it!" Of a piece with which is the exhibition of the ignorance of the law recently made by the legislature itself. Long debates took place in the sessions of 1854-55 and 1855-56, on a bill to amend the existing law (Mr Lowe's Partnership Amendment Bill) before certain persons of high "legal authority," after "much consideration," concluded that, "by the analogy of cases, the rule to be introduced by the bill was already in the law!"
The Specialty Character of the Law is at the root of this confusion. We have too many laws for particular cases, to amend clauses of special laws, and to amend laws that amended others. This is partly owing to the specialty character of our institutions, the laziness or want of system of legislators, and the peculiar constitution of the legislature; but principally to empiricism. The tit-bit procedure necessitated by empiricism, by augmenting the labour of legislation, prevents the law attaining the perfection which, even on empirical principles, it might have. Empiricism encourages attempts to cope with casual circumstances by small measures to meet evils incidental to others, and which, if left alone, would cure themselves, or which can be cured only by striking at the greater evils. The special, again, work up against the general laws, are soon found not to work well, and are tinkered to shape them to the latest views. The state of the law is, in short, the natural consequence of the system of rules which Mr Macaulay represents the legislature to have followed from the age of John to Victoria. "To think nothing of symmetry and much of convenience; never to remove an anomaly because it is an anomaly; never to innovate except where some grievance is felt; never to innovate except so far as to get rid of the grievance; never to lay down any proposition of wider extent than the particular case for which it is necessary to provide." It is satisfactory to be able to record that, of late years, the disposition to depart from these rules has been acquiring strength, under the pressure of the accumulation of small inconveniences occasioned by so long following them.
Law-drafting.—The bulk of the law is farther increased by the redundancy of its language. The evils of bad law-drafting have been ably exhibited by Mr Symonds, in his
Mechanics of Law-making, where he shows that the mass of the law is greatly owing to—1, The precise over-specification of non-essentials in acts of parliament; 2, The constant repetition of the same words, their doubles and equivocations; 3, The constant reiteration of all the qualities, incidents, and relations of a thing, as often as its name is repeated; 4, The confused structure of clauses; 5, The unscientific method of drawing acts. We must add, that the bulk of the statutes is farther swollen by redundancies of substance. Provisions for carrying laws into operation, for instance, instead of forming a separate law of procedure applicable to whole classes of statutes, are frequently brought into the statutes individually. No idea can be formed of the extent to which our 18,000 statutes might be reduced by the simple operation of stripping them of these redundancies. As it is, the absence of facilities of reference to the statutes—the last defect of law-drafting to be noticed—aggravates the evils due to their number and bulk.
Law-literature.—Justice could scarcely be administered in the existing state of the law, if the accounts of it by unauthorized commentators were not allowed weight in courts of justice. But, on the natural law of supply and demand, private enterprise has partially made up for state inefficiency. Any work reducing the law on a class of subjects to a reasonable compass is readily grasped at. The commentators, referred to at first from convenience, come at last to be authorities in courts of law; and institutional or law-literature seriously undermines the authority both of the legislature and judge-legislators. Nor is an extensive acquaintance with the commentators necessary to assure one that the uncertainties of the law are fully reflected in their works; often they merely conjecture what the law is—balancing the authorities of names, and adjusting conflicting analogies. The uncertainties, indeed, are often slight, but sometimes they are absolute; and even slight uncertainties are fruitful sources of litigation. And then the superfluity of law-literature threatens to induce a similar state of matters to that in which its own authority originated. The books multiply so fast on the various branches of the law, that they will soon be as unmanageable as the law itself.
Civil Equity is in the case of the common law; and the efforts to procure its reduction to written law have been met by the same objections. In England it has long lost its original arbitrariness; that element dropping out with every exercise of judicial discretion. The arbitrariness left is a discretion in distinctly new cases; for the rest, the application of the principles of old decisions to analogous cases. In connection with civil equity must be noticed the jumble of jurisdictions as an additional source of uncertainty. To take a case lately before the public, three courts, proceeding on different principles, have jurisdiction in cases of intestate succession, and have no common court of appeal. To the uncertainties in the same court are hereby added those due to the concurrent jurisdictions of judges administering different principles. It is not, then, to be wondered at, looking to the state of the law, and to our system of judicial procedure—"a technical system invented for the creation of costs"—if we frequently submit to injustice from one another rather than risk the greater evil which it is in the power of the law to inflict on us if we set it in motion to do us justice.
IV. By codification is understood an authoritative consolidation of the whole law, in its leading divisions, giving it coherency and unity of principle, and making it the clear expression of comprehensive and consistent rules. That this reform is necessary, has been maintained by many of the best writers on the laws of England, by none more ably than by Bentham. The question of a code is one of fact, to be discussed in the view of the state of the law and the practicability of the reform. A barbarous age presents neither the materials for a code, nor the
generalizing spirit necessary for its construction; nor, such is the harmony of things, the necessity for its being constructed. But when the laws of a country present such rich materials as ours do, and in such confusion, nothing short of the radical reform implied in codification will suffice for them. We have passed the point attained in every country that advances far in civilization, when, in the growth of law, its exuberance impedes its natural functions, and it becomes imperatively necessary to prune it in all directions.
The principal objections to codification have been considered and rebutted by anticipation in the discussion regarding the desirableness and practicability of transmuting unwritten law into statute. If the law can be, and ought to be written, no one will assert that it ought to be written after the manner of our statute law, or deny that our statute law stands in need of systematization and consolidation. In fact, no one admitting the positions which we conceive ourselves to have established under the head "Judge-made law" can question the desirableness of a code, however he may doubt its practicability.
The practicability of codifying the law might be proved by a direct argument on its conditions, to the effect, that no insuperable, or even very great difficulty, lies in the way of its being done; and the argument might be confined to the civil and penal codes with which the principal difficulties, such as they are, are confessedly connected. The difficulty of the civil code is that of defining and classifying rights; and of defining the facts which give them commencement, and put an end to them. Now rights, and the facts which begin and end them, are already in a way defined by the law. To the extent that this is well done, therefore, the difficulty is commensurate with that of knowing the existing law, and it is not for the opponents of codification to maintain that this is insuperable. The first operation in the process of codification is to bring the definitions of rights together in lists, according to the nature of the subjects to which they relate; the next is to arrange those of the same kind according to duration and extent. The difficulty of the former operation is diminished by the fact, that on the lists being partially formed, the rights set down suggest those to be added; and the difficulty of classification is diminished by the principles of law coming out, in the process, with great clearness, and throwing light on the arrangement to be adopted. When the lists are obtained, and their arrangement effected, what remains is to specify the facts that shall give rise to rights and end them. This has also been done by the law from case to case, so that the difficulty of it is commensurate with that of knowing the law; and when these facts are defined the code is complete. In none of these operations does there appear to be anything insuperable, or even very difficult to be done, although, no doubt, considerable perspicuity and logic would be necessary for the proper classification of rights. The penal code presents still fewer difficulties, being less extensive than the civil. What must be done is to define and classify crimes, to fix the penalties to be incurred by committing them, and to set forth the rules of law as to the incapacity to commit offences, &c. Crimes and their penalties, &c., being already defined by the law, the difficulty is again the same as that of knowing the law.
But the practicability of codification is above depending on an abstract argument on its conditions. Whatever the difficulties of it may be, they have been triumphantly surmounted, as in the Code and Pandects of Justinian, the Code Napoléon, and the Code of Louisiana, which were successfully made to embrace the leading rules and principles of the systems of laws which they were respectively framed to supplant. And while the Code of Louisiana, which has been in operation for nearly half a century, may be directly appealed to in proof of the practicability of codifying the common law, the Code Napoléon was far more
difficult of construction than an English code would be, because of the greater heterogeneity of the provincial usages which it had to reduce to system. If farther proof be wanted, we appeal to the commentaries from which our lawyers and judges know the law. What, in fact, are the commentaries, but successful partial attempts at codification? And will it be maintained that what private individuals do so well cannot be done more efficiently by the state? That codification is difficult, and cannot be perfectly executed, is nothing to the purpose. It is enough if it be possible to frame a code more perfect than any of the commentaries, and having authority. The Criminal Law Bills of 1853 may be instanced as proving the practicability of this, as they go far towards being a complete penal code, and are, in point of style and order, almost all that can be desired. The practicability of framing a penal code has, indeed, been conceded by many who hold the negative on the general question, but with what show of reason will appear from considering that the penal code, though not conterminous with the civil, presupposes the definitions of the major part of it, and of many of the rules of constitutional and official law as well.
The degree of perfection which may be given to the code will, of course, depend principally on the care, fidelity, and capacity, of the men selected to frame it. The steps in the operation of forming it would appear to be,—1, The classification of the statutes and of the unenacted law; 2, The consolidation of the statutes and digestion of the unenacted law; 3, The digestion and assimilation into one body of the consolidated statutes and digested common law. The principle of classification being previously adopted, the workers on the statutes and on the unwritten law might continue their labours separately over the first and second steps; in the second also, the labour might be lightened by division, the consolidation of each class of statute and common law rules being entrusted to single persons; the workers coming together again in the third stage of the process. In the last state of reduction, the best way would appear to be, clearly and briefly to set forth the general rules of law, and to follow them by specifications of the particular cases to which they apply. Great care would be required in all the stages not to allow any rule of law or principle of a decision to drop out; and then to have all disputed or doubtful points cleared up by enactment, and to have, by the same means, the contradictions and inconsistencies of the law rooted out. When the scaffolding by which the law has been erected has been cleared off and buried out of sight, and when it has been stripped of its redundancies of language and substance by the first and second operations; the third will be found to be far simpler than can now be conceived. It is not to be concealed, in view of the degree of organic unity which codification aims at giving the law, that the proposal to codify it is not a proposal to consolidate it merely, but to reform it as well. Whatever machinery were employed to consolidate it, would find no small part of the difficulty of its task to arise from its being restrained from reforming it; and in any attempt to classify the laws, their inconsistencies could not fail to appear. It is comparatively easy to obtain structural unity in the composition of harmonious materials, but it is impossible to obtain it in the composition of materials irreconcilable and discordant.
We cannot enter farther into the consideration of the machinery best adapted for codifying the law, than to remark, following high authority, that the separate divisions of the code could more readily and successfully be reduced to unity and order by single minds, than by several working together. Supposing men of the requisite capacity to be obtainable, they should be entrusted each with the department of the law of which he has most knowledge; one or more to follow in their tracks, rectify their mistakes, and fulfil their designs. Those engaged in the business would
find again, that the tracks of the commentators who preceded them required only to be straightened here and levelled there to be perfect avenues to the law; so that the pains taken by private persons, in past times, to reduce it, might all be made tell towards its final reduction into the code.
Commissioners for the consolidation of the English law have now been at work for over twenty years, and the Criminal Law Bills of 1853 are, so far as we are aware, the only published practical results of their labours. We understand, however, that they have consolidated all the statutes relating to indictable offences,—with the exception of those connected with laws relating to bankruptcy, customs, and religion,—into six bills; and included in two (having finally abandoned the bills of 1853) the law relating to principal and accessory, and criminal procedure. For the rest they expect to be able to reduce our thousands of statutes into three hundred acts or thereabout, by rejecting from the statutes obsolete acts and acts of a special nature, and consolidating the rest. If they do even this, they will confer on the nation an inestimable blessing. But it must be admitted, that if the practicability of the code were to be measured by the smallness of the pretensions of the commissioners, after so many years' consideration of the work entrusted to them, and by the fruits of their labours over so long a time, the case would indeed be desperate. But whatever may be the qualifications of those employed on the commissions, it cannot be said that they have received much encouragement. The public scarcely believes in the sincerity of their undertaking; which is itself too narrow to meet with the full approbation of zealous legal reformers. The position is one of great difficulty; but it is clear that the difficulty is increased by the disposition of successive ministers to compromise the question of a code for a partial reform, and to postpone the realization even of that. Either our ministers want the largeness of view and the decision of the masters of men who have given codes to the world, or their tenure of office is too uncertain to permit of their energetically acting out their views, and they are naturally lukewarm in the prosecution of tasks the merit of completing which may accrue to others. Whatever be the explanation to be given of the fact, the instance can scarcely be said to have yet occurred of a popular government conferring the blessing of a code on its subjects. Supposing the task finished, the legislature is wholly unfit to judge of its merits, and must accept or reject it on the authority of individuals. In England, high authority on legal subjects is scarcely to be found in men not enjoying political importance; and the political lawyers are called on too laboriously to attend to their own and party interests to exhibit those qualities of head and heart which would dispose the legislature and the people to trust them, even if they could be induced to undertake so great a labour as would be necessary for successful codification. The only hope of the successful accomplishment of the reform lies in the creation of a strong public feeling in its favour by the repeated exhibition of the evils of the law.1
The code must consist of five sub-codes,—1, The constitutional code; 2, The official code; 3, The civil code; 4, The penal code; 5, The code of procedure. The subjects of the civil and penal codes, and the difficulty of constructing them, have received special consideration.
The advantages of forming the laws of procedure into a
separate code are apparent. For the rest, municipal or local police laws depend on the powers of magistrates of burghs defined in the constitutional code; while general police acts are a standing portion of the official code. The proposition to codify the official laws is not made without hesitation; but it is here the law is most special, cumbrous, and deficient in system, and that legislation is most laborious. The extent to which system and generality might be given to these laws has been pointed out by Mr Symonds, to whose work on the Mechanics of Law-Making the reader should refer on this subject. The laws relating to the revenue, which should in strictness form part of this code, produce social changes so suddenly, through the constant endeavour of the public to relieve itself of its burdens, and must therefore be changed so frequently, that it would be useless to attempt codifying them. The modes of raising the taxes also change with the taxes, so that neither the laws which determine the taxes, nor those which regulate the revenue machinery, can be other than ephemeral. There appears to be no reason, however, why the other laws of the public service should not be made general, permanent, and public. It would be in favour of administrative reform if they were. They are at present utterly incognoscible—the powers and responsibilities of departments and commissions lying concealed under their entire history. The necessity of codifying the constitutional laws need not be insisted on. Only one in a thousand has, at present, more than a faint general idea of the system of government under which he lives. If the improvement of that system is desirable in any respect, it would follow on its real character being known.
That the code may be made perfect in its principles and provisions appliances once and for ever is an idle fancy; the law can with which never remain in the rear of the civilization which it guards, the code must be grown up with and out of experience, it must constantly be equipped. All that can be aimed at is to round and compress the law relative to the experience of the past, and to start it afresh with provisions for its accommodating itself to the requirements of new times, without losing its accessibility and certainty. The question is with what provisions to equip it. Two sets of ends must be provided for; the first, for accomplishment at short intervals, are three in number: 1, The collection of materials for the growth of the code; 2, Their preparation for being incorporated in it; and 3, Their incorporation into it; the second, for accomplishment at longer intervals, are two in number: 1, The revision of the code, and rectification of defects discovered in its principles; 2, The excision from it of rules found to be unnecessary or pernicious owing to social changes. Courts of justice must continue to be the principal garners of materials for the growth of the civil and penal codes. The imperfections of legal principles and definitions are most likely to be discovered in these courts, in which also cases not provided for arise for decision. It has been suggested that the judges should be bound to report on cases of hardship to which, through over-generality or particularity, the law appears inapplicable, their reports to be laid, at short intervals, before the legislature as materials for law reform; and that they should decide distinctly new cases as they best can, their decisions of them to be final, and their reports on them to be materials for general laws to include them. By these means the materials for the growth and reform of the law, so far as supplyable by
1 The government is now said to be at last earnestly bent on the reduction of the whole statute public law of England to the consistency and dimensions of a practical code. The chief commissioner thus describes the procedure which he means to adopt:—"To take the statutes at large from Magna Charta to the last set of Victoria; to expunge and reject from the statute-book every act and every enactment which is either repealed, expired, or obsolete, and then to take what remains (which will consist of all that is law in force, and to continue in force), to digest and to arrange this body of law, by dividing it into classes, and sub-dividing each class into single subjects; and then to reduce the whole into single bills, each bill being on a single subject, but comprising the whole of that subject."—(Letter of Sir Fitzroy Kelly to Lord Brougham). The result of consolidation will be, that 40 vols. of statutes will be reduced to 4, which will constitute the statutes at large, and contain the whole of the acts in actual force, arranged and digested, so that an inquirer may find at once all the statute-law upon any particular subject.
Jurispru-
dence.
courts of justice, would be regularly obtained by the legislature. It has also been suggested that there should be a commission for receiving complaints against the law. Cases of hardship constantly occur that never enter courts of justice; and defects in the law are daily suggested to advocates in private practice, by cases neither in court nor in hand, which they forget in the hurry of business, but which might be made available for law reform if there was a commission to which they might be notified. The preparation of the materials thus collected for the code should be the work of sub-departments of the legislature, which, over and above its other duties, should be able to keep the laws parallel with judicial legislation. As to the third requisite, it has been suggested that there should be a standing commission to publish the acts of the legislature, and classify and adapt them for introduction into the divisions of the code, which it should be their duty also to re-edit at certain intervals, probably of from three to five years, according to the scheme of Lord Bacon. The code would thus never be long in the rear of the current legislation; and the law, logically arranged and authenticated by the state, would be always accessible and certain. It is unnecessary to do more than
mention here the necessity of accommodating the language of the code to that of the people. It is important that it should be plainly written in the tone of the time. But as the growth of language is slow, the necessity of altering the code on this account would be felt only at long intervals.
When the code is equipped with the provisions above suggested, judicial decisions will be of value, as containing its interpretation and the history of its application, and exemplifications of its failure and success. They will, in consequence, continue to be studied by lawyers, and become of importance to legislators. The reform which we have been contemplating, when effected, will no doubt be accompanied with provisions for authenticating reports of decisions, and keeping under their number, by restricting them to crucial and leading cases, and throwing overboard the reports of repetitions of decisions which now swell the records. The mass of the decisions thereby becoming manageable, they would reward careful study. The auxiliary law-literature founded on their analysis would thenceforth be rather critical than expository, aiming at the improvement, instead of the illustration of law; undermining its authority no longer, save by examining and testing its principles.
PART IV.—JURISPRUDENCE.
Jurisprudence, or the doctrine of the application of law, accepts law as it is, and considers how its operation may be made most effectual. While this is its peculiar province, it is strictly not a separate doctrine, but falls under the general theory of legislation. Rules of law, and the manner of prescribing and enforcing them, cannot well be altogether separately considered, and are here separately treated of chiefly for the convenient discussion of the various questions concerning law.
To protect rights is the same thing as to apply law. Law commands certain actions to be done, and permits or forbids others. All its rules and institutions, whether relating to persons or things, are, directly or indirectly, limitations or definitions of powers of action, assigned by it to, and vested in, particular persons, over the persons of others or things. And since these powers of action are rights, it follows that to protect rights is to apply law.
As every power given to one over others or over things limits the powers of others over themselves or over things, law, in conferring rights which, as enjoyments, are objects of desire, necessarily creates obligations proportionally burdensome, and therefore objects of aversion. Rights, therefore, are exposed to be contested and violated, and need to be protected, both to secure their possession to those to whom the law has assigned them, or in whom it has vested them, and to prevent their violation. The object of inquiry is the best means of affording them this double protection.
The definition of rights as a means of protecting them.
In the first place, rights must be clearly defined. Their definitions, by setting forth the extent of the powers which they imply, and the facts which vest them in particular persons and terminate their possession of them, will prevent disputes as to their ownership, while warning men off from interfering with their exercise. It is only when it is certain what rights are, and who owns them, that public opinion and the other sanctions of law can operate steadily in their defence. For similar reasons, offences, or violations of rights, must also be clearly defined. Their definitions will at once warn men off from committing them, and steadily direct the unfavourable sentiments of men against those who commit them.
Divisions of jurisprudence.
It is further necessary, for the protection of rights, to provide (1), for the settlement of disputes, as to their extent and possession, and (2), for guarding them from violation, and for the prosecution and punishment of those who violate them. It is designed to take up, under the title "Judicial
Procedure," the consideration of the provisions to be made for the settlement of such disputes and the prosecution of offenders; and under the title "The Doctrine of Punishments," that of the leading questions connected with the prevention of offences and the punishment of offenders.
I. The nature of the judicature, and the procedure before it, must depend on the nature of the cases which give rise to legal contests, and the operations necessary for their settlement. Causes of litigation may be complicated in various ways. Civil causes may involve several questions of right, each of which may require separate settlement, or two or more of which may rest on the same grounds, and may be settled conjointly; and they may include several persons as litigants for their joint or individual interests. But the most complex cause of this sort is resolvable into simple causes, in which single rights and pairs of litigants are concerned. Criminal causes also may be complicated so as to involve several persons as accusers and defenders, and several charges, and are similarly resolvable into simple causes with single charges and pairs of litigants; so that all causes are representable by the two cases of A and B disputing about a right, and of A complaining that B has violated a right. What has to be done in either case, the law being clear and settled, is to solve a question of fact. In the former case, in whose favour, A's or B's, is the fact on which the legal title to the disputed right depends?—in the latter, Did B commit the act charged upon him by A? This question of fact is the issue of the case between A and B, and in a criminal cause, appears at once from the complaint; but in a civil, it is to be derived from the whole circumstances founded on. The first operation to be performed, then, is that necessary for bringing the case to an issue in point of fact. The issue being obtained, the next operation is to lead and weigh evidence to settle the question of fact. The fact being ascertained, it remains to declare its legal consequences. This is the decision of the case to be followed by warrant to the executive to enforce its terms. If the fact favours A, the decision is that the disputed right is his; if B committed the act charged on him, the decision is that he shall suffer the consequences attached to it by law. Here the distinction between the two cases may be dropped, as the latter plainly does not require a different procedure from the former. It is a simple case of the former, in which the operation to get at the issue is unnecessary. We may now consider the case of A and B disputing about a right, assured that all necessary to be done in the most complex cause will
Jurisprudence. appear from the consideration of the procedure necessary in that case.
The three operations to be performed, then, are,—1st. To bring the dispute between A and B to an issue in fact, in which A shall affirm and B deny that something happened or was done in a particular way. 2d. To lead proof as to the fact. 3d. To pronounce judgment and issue warrant for execution. As the conditions of successfully performing the second operation have been discussed elsewhere in this work (see art. EVIDENCE); and as there is nothing to be said about the third, the business in hand is wholly with the procedure for evolving issues, the constitution of the judiciary for the several operations, and the provisions to be made for the fidelity and fitness of judges.
A and B dispute about a right to which each believes himself entitled because of certain actual or supposed facts which he conceives to have so happened as to have made it his. Now, the facts which invest rights in particular persons, and divest them of them, being defined by law, what in the first place is necessary is, that they come together before a person who knows the law, and can tell them the legal qualities of the facts on which they rely. Suppose the suit to be at the instance of A, he must, to commence, state before this person the fact on which he relies. B may then deny it or its investive quality, or allege a subsequent fact vesting the right in himself, or an antecedent fact preventing that alleged by A operating to vest it in him. If B admits A's allegation, but denies the investive quality of the fact, the judge has merely to declare whether it has that quality or not. If he admits its quality, but denies that it happened as alleged, the issue is at once reached whether the fact happened as alleged? If, admitting the fact and its quality, B alleges a subsequent or antecedent fact, vesting the right in himself, or preventing it vesting in A, the same course is open to A with respect to B's allegation, that was open to B in respect of A's first allegation. He may deny it; admit it and deny its quality; or allege an antecedent or subsequent fact, as in the former case. At every stage there thus arises a question of law or fact, or both; and after a few steps at farthest, if the parties are made to face each other, the issue or final question of fact is naturally evolved, and the case prepared for proof.
The allegations of A and B, in turn meeting one another, soon exhaust the whole circumstances founded on. The issue will be the more speedily and correctly evolved, the fewer fictitious circumstances introduced to complicate the case. It is desirable, then, that neither party make any allegation that is not true; and that the facts alleged should have the qualities ascribed to them. To secure the first, litigants should be subjected to certain penalties if convicted of making allegations that they knew to be false; e.g., they should be made to bear the expenses of the suit, so far as due to its being complicated by these allegations, and farther, a pecuniary fine, to be fixed according to the circumstances. It has also been proposed that they should be made to swear that their allegations are true to the best of their belief, and thus to make them under the penalties of witnesses. There appears to be no good reason why this should not be done; and there certainly is good reason why something should be done to obviate the evils of litigation as at present everywhere conducted, owing to the moral turpitude of suitors, who are unfortunately kept in countenance by the traditional morality of the bar. To secure the second desideratum, it is sufficient that the allegations be made before a judge acquainted with the legal qualities of facts, and who can at once pronounce whether they have those ascribed to them. Also, the convenience of the judiciary, and the interests of justice require, that at this stage, in all but the simplest cases, advocates acquainted with the law, and accustomed to deal with complex facts, should be interposed between
suitors and the judiciary; that the facts of cases may be set forth in continuous chains, and not in ravelled wisps; and that cases be simplified before entering court, by being stripped of all matters plainly irrelevant. The presence of advocates is, farther, a security for the judge's attention to matters which, if set forth by suitors themselves, might be underestimated or overlooked.
If the judge knows the law, and has the requisite power of attention, he is more likely to manage this part of the business with fidelity and efficiency, singly, than with co-adjutors sharing the responsibility of the task with him.
It appears that a single judge is the only agency required for the preparation of the case for proof. On the operation of leading proof, the reader may consult the articles on EVIDENCE, and TRIAL BY JURY. There appears to be little room for doubting that a single person of probity and ability, accustomed to taking and weighing evidence, is more likely to settle the question of fact satisfactorily than several persons, selected almost at random, as a jury, and unaccustomed to these operations. The question is between the value of the vague impression from the evidence received by these men, and that of the logical inference from it of an acute mind alive to all the little circumstances which affect the credibility of witnesses, and accustomed to compare evidence of different sorts, and sift contradictory evidence. As in the first operation, too, the responsibility of the task is greatest when resting on a single person. Since there is nothing in the third operation requiring more than one person for its performance, it appears that a single judge is the only agency required for all the three stages of judicial procedure.
It is unnecessary to enter particularly here into the provisions requisite to secure the fidelity of judges. Most of them must be inferred from the general provisions against offences to be hereafter discussed. Those at the head of the government must be guided by public opinion, in a large measure, in making appointments to the judicial seat. For the rest, the publicity of the judge's proceedings, and, particularly, the fact of their taking place before an audience of lawyers interested in his honestly discharging the judicial function, are among the best securities for his attention and rectitude. To this we add, the right of appealing against his judgment to a superior tribunal, as a great security against his negligence and unfairness. This right should be given to suitors in all cases in inferior tribunals. No reason can be assigned why it should be given in one case and not in another. The only consequence of giving it in all would be a necessity for a greater number of courts of appeal; but as there is no good reason why the judge on appeal should not be single, the number of superior judges required would probably not be greater than at present, on the system of divided responsibility. The appeal, also, might be simplified by the judgment in the superior courts proceeding on an authentic record of the proceedings in the inferior.
II. It must now be inquired how undisputed rights may be guarded from violation, and how persons convicted of violating them should be dealt with. Though all wilful violations of rights come under the generic name of wrongs, only certain of those made penal are called crimes; yet it will be convenient to speak here indifferently of all acts to be prevented as crimes.
In inquiring how crimes are to be prevented, attention must, first of all, be given to their causes. The cause of every crime is the desire of some actual or imaginary good. A man is led to steal by the desire of property, and to injure another's person by resentment. Generally, the desires which cause crimes are the same that lead to other and necessary forms of human activity. And as they are essential to man's existence, the question is, What obstacles must be devised to prevent their leading to criminal acts, while leaving them free within legitimate limits?
They lead to crimes unless they are counteracted by stronger motives, or the criminal acts are prevented by the interposition of physical force. It is clear that crimes cannot be prevented in more than a few cases by physical force. They must be prevented, then, by supplying motives to counteract the desires which lead to them; and, considering what these are, the counteracting motives must be desires for greater advantages than those obtainable by the criminal acts, or aversions to evils certain or likely to follow upon their commission. To supply motives of the former class would be to reward men for not committing crimes, and is wholly out of the question. It remains that the motives to crimes are to be counteracted by applying evil consequences to their commission.
But it is expedient that no evil be produced that does not, directly or indirectly, produce a greater good. This is the principle on which injurious acts are to be selected for prohibition in the penal code; and in applying it, regard must be had to all the consequences of making acts penal through which the influence of the penalties is diffused through society. The immediate consequences of making failure to pay a debt penal might be beneficial, but its consequences in the long run on trade and commerce would certainly be mischievous. One deduction from this principle is, that the protection of rights should be left to the fear of the direct evil consequences of violating them, whenever it is ordinarily sufficient to prevent their violation. Another obvious deduction is, that penalties should be annexed to no acts, the commission of which they are unsuited to prevent.
The direct evil consequences of injurious acts are the natural protections of the corresponding rights; they are obstacles to crime, existing in the nature of society and of man, which it is the duty of the legislature to uphold and strengthen. They either depend on the moral sensibilities of men, or on the immediate practical results of provoking their unfavourable sentiments. Over the area of the common experience that the largest measure of durable good is attainable only in the way of justice, the desires of individuals for happiness concurrently constitute an instinct in society of self-preservation from all who practice injustice, which not only secures that they shall be punished with odium in proportion to their sensibilities and the public estimate of their deserts, but that, when hardened to shame, they shall be ruined and cast out of society. The task of the legislator, so far, must be, to enlighten men's moral judgments, and stimulate and tutor their unfavourable sentiments by promulgating just views of criminality. But, further, he must take care that the unequal development of society shall nowhere efface or prevent the effects of those impressions of mutual hatred and esteem on which the moral tone of the community depends. Accordingly, wherever peculiarities of experience have generated false sentiments, that shelter one class of society from the indignation of the rest, it becomes the duty of the legislator to educate and reform that class, and to check the causes of vagabond and criminal habits which perpetuate the families of the morally obtuse. So far as religion constitutes a more awful morality, with more terrible, if less immediately obtrusive penalties, it is the duty of the legislator to foster a universal regard for its sanctions, and to cherish the general diffusion of its principles.
It will never be possible, however, so to train or elevate all that they shall feel the force of these natural obstacles, which also must often fail by defeating themselves. The aspiring classes, in all ranks, are particularly exposed to an unfavourable action of public opinion, being tempted, on their fortunes changing, to continue their upward progress by the secret avenues of fraud, lest they should appear ridiculous in suddenly descending from positions honestly attained. Also, so long as criminals can evade the natural
consequences of their crimes by shifting their localities, there must be other means of preventing crimes. Without indorsing the opinion that men are to be held in awe by the terror of physical pain alone, it will always be necessary to employ motives from the physical source to counterbalance the effects of the dissocial passions.
The evils incurred by transgressing the natural obstacles are due to the incongruity of crimes to the constitution of society. By increasing them ever so much no evil uncompensated for by a greater good can be produced; because they can only be increased by transfiguring society with the sentiments essential to its well-being and stability—increasing the vigour of its system, so as more speedily to reject whatever is noxious to it; and because, as the evils increase, the occasions become less frequent of their being inflicted, from the diminution of the criminally disposed and greater efficacy of the obstacles. The evils incurred by transgressing the artificial obstacles, on the other hand, are created by the legislator, and are pure evils, unless they are successfully employed to prevent greater. His design, then, must be to prevent crimes by threatening to inflict these evils. When his threats do not prevent crimes, and the evils have to be actually inflicted, his design has failed. They are then to be inflicted to maintain the future efficacy of his threats.
According to this design, the first condition of the employment of punishments is, that they must be fixed and declared by law, so as to be standing menaces against the criminally disposed. The second condition depends on its being more desirable to prevent the more than the less mischievous crimes, and is, that the penalties declared by the law must be graduated to the scale of crimes, the former ascending in severity as the latter ascend in mischievousness. For, if the same penalty were threatened against crimes of different degrees of mischievousness, there would be nothing to deter a man from committing the more mischievous as often as it promised to be the more profitable.
Besides the principle of proportioning penalties to the mischievousness of crimes, none other is practically applicable; it is the single principle on which the relative severity of the punishments in different cases must depend. This will appear from a brief view of the only other principles that have ever pretended to determine penalties. It is out of the question proportioning punishment to the moral guilt or to the criminal intention of offenders; for, as the former is held to diminish as temptation increases, penalties on that principle should be least when, for the purpose of prevention, they should be greatest; and because it is impossible to measure the latter so as to proportion punishment to it. Nor can the principle be that of proportioning punishments to the motives which lead to crimes; because (1), there can be no measure of motives; and (2), even if motives could be measured, they would be no measures of the punishments sufficient to counteract them by producing fear. Motives to crimes rise from the concurrence of desirableness in objects obtainable by them with circumstances which diminish the difficulties and risks of committing them, and depend on the views taken by criminals of the whole circumstances under which they are committed. It is impossible to estimate either of these factors in motives as seen from the stand-point of criminals, far less the motives, as determined by their concurrence. This, even when the object has a market-value; but when it is the gratification of a sense, or passion, the estimate is wholly impossible. And even if we could appreciate motives, yet, since punishments cannot be made to follow immediately on crimes, and the causes by which they lose deterring force are beyond our cognizance, our measures of motives would be no guides in annexing penalties. The fear of punishment felt by a criminal, supposing him to deliberate, depends largely on his imagination and a calculation of chances based on his pre-
Jurisprudence. vious experience and immediate means of concealment. An error in reasoning, or in the calculation of a probability, may take all the terror from the law. Also, in the majority of cases, the motives to crimes are wholly vague—as when a man breaks open a till or into a house. In fact, to apply this principle, the law, instead of aiming at generality, would have to address itself to each individual criminal, and punish him on an appreciation of the whole circumstances under which his crime was committed. But this would be to break through the first condition of the employment of punishments, and, leaving penalties to be determined by judges, leave to their discretion what laws, if any, should be enforced. It remains that penalties be proportioned to the mischievousness of offences.
It would be difficult to compare crimes in point of mischievousness were not incomparably their worst evil the feeling of insecurity which they produce; but by attending to this single effect of crimes exclusively, an approximate measure of their comparative mischievousness may be obtained. It would again be difficult to make direct appreciations of the extent of diffusion and degree of intensity of this feeling in different cases; but their measures may be indirectly obtained by comparing—1, The importance of the rights violated in different cases; 2, The difficulties of individuals guarding themselves from similar acts; and, 3, The spheres of operation of the desires leading to crimes of different sorts. In this way treason, putting the lives and property of all in danger, takes its place at the top of the scale; while petty thefts, causing little more than annoyance to the persons whose property is stolen, and exciting, when frequent, only the feeling of the necessity of greater care in storing things, take their place at the bottom. Between these all crimes whatever may readily be arranged. To compare theft, robbery, and burglary, for instance:—Thefts make property insecure, but raise no sense of personal danger; robberies, when frequent, add personal insecurity in going abroad to insecurity of property; to which burglaries, when frequent, add insecurity in staying at home. Again, supposing the motive, i.e., so far as concerns the desirableness of the objects of the acts, in the three cases to be the same:—Theft waits opportunity; robbery makes opportunities; and burglary makes opportunities in defiance of all the ordinary protections of person and property. Murder for money, again, is more mischievous than when committed in the heat of passion. Passion is accidental between the criminal and his victim; but all desire money, and all who have it feel exposed to be murdered for it. While the mischievousness of crimes may be compared in this way, it is impossible to estimate precisely their differences in degrees of mischievousness. Beyond saying that in one case punishment should be greater than in another, theory can give the legislator no practical guidance; so that a large amount of arbitrariness must be admitted into this branch of law.
So far we have seen how penalties are to be proportioned to crimes, but not how their sufficiency for the purpose of prevention is to be secured. Perhaps the nearest approach that could be made to securing their sufficiency would be to make part of the punishment, in every case in which it is practicable, consist in the criminal repairing the injury occasioned by his criminal act. When the injury is done to property or reputation, it may, in most cases, be repaired; and even when it is done to the person, a substitute for reparation may in many cases be exacted. Stretched to its full extent, the doctrine of satisfaction would require that the criminal should not only be made to compensate the person injured by his act, but to defray by his labour, or from his estate, the expenses of convicting and punishing him. But the extent to which the principle should be applied must be determined by expediency in the circumstances of cases.
It remains to set forth the penalties available from the physical source, and the qualities which lots of punishment should have for the purposes of prevention. A man may be punished through his person directly—(1), by being subjected to bodily pain, or (2), to hard labour; and (3), by being deprived of his liberty; and, indirectly (4), by being deprived of his property. The punishments which he may be made to suffer in these ways may be made to vary—(1), between scourging and death; (2), between a brief term of hard labour and perpetual slavery; (3), between imprisonment for a brief term and for his natural life; (4), between a small fine and his whole fortune. Also, these punishments may be made up in an indefinite number of lots, by combining different degrees of the various sorts, so as to be of every degree of formidableness.
It appears, then, that these penalties possess the two Primary qualities most essential to punishment, viz., formidableness and measurableness, so that they may be formed in lots of increasing severity with the classes of crimes which they are designed to prevent. The other qualities which a lot of punishment should have for the purpose of prevention are obvious. 1. It should be suggestive of the crime to which it is attached, that the idea of it may be closely associated with that of the crime. 2. It should be calculated to operate with the same intensity on all persons. 3. It should be disabling, i.e., such as to prevent the criminal doing further injury to society.
Secondary to these qualities are others which a lot of their punishment should have in the view of benevolence, and secondary qualities which bear only indirectly on the prevention of crime. 1. It ought to be humane, i.e., occasion as little as possible useless suffering. 2. Corrective, tending to the moral improvement of the criminal. 3. Remediable, in case it should be discovered to have been undeserved. It must not be attempted, however, to give it these qualities at the expense of its formidableness, which benevolence indeed requires it to have, that the fear of it may prevent the necessity of inflicting it. Its sufficiency to prevent crime is what must chiefly be attended to. This, however, depends not wholly on its severity, but on the degree of expectation that it will be inflicted. The more severe the penalty is, this expectation being the same, the greater will be its deterring force; but, the penalty being the same, the less this expectation, the less effectual will the penalty be. Also, if its infliction is certain to be long delayed, it loses force, through the operation of psychological laws too well known to require explication here. So that the certainty of punishments being speedily inflicted is, it may be, of as great importance as their severity in determining their sufficiency. They may, accordingly, be made less severe in proportion as they are made proximate and certain.
Here must be noticed the fact, that a limit is set in the nature of things to the advantages, in a jurisprudential view, derivable from severe punishments, as their severity tends to diminish their certainty, through men's reluctance to cause others to suffer great pains. The more severe punishments are the more likely they are to be effective; but then, the more severe, the less likely they are to be inflicted; and the point is reached where what is gained by increase of severity is lost by increase of impunity. It is all the less necessary, too, that punishments should be severe, that one of their chief functions is to direct public disapprobation against offenders. It is due to their discharge of this function, that in countries remarkable for lenient penal laws, crime is as effectively prevented as in others where they are very severe.
It is probable that, when all has been done to secure the Means of certainty and proximity of punishments, they may with increasing safety be made exceedingly lenient. Among the means that may be employed to secure these are—1, The establishment of a vigilant police, to secure the speedy detection of crime.
tion of criminals; 2, Of a system of public prosecutors, and of courts in which criminals may be tried without delay, to secure their speedy conviction; 3, Restriction of the Judge's discretion by defining the circumstances which may justify him in lightening punishments, among which should not be the plea of a "first offence," for which a first conviction is too often mistaken; 4, Restriction of the pleas on which punishments may be evaded,—when the plea is insanity, confinement in a public asylum should follow; 5, The full infliction in all cases of the penalties incurred by criminals. Let the law have rules for singular cases; but let its awards be in all cases definite, and certain to be inflicted. Such a practice as that recently adopted in this country of commuting punishments, and of giving criminals the chance of winning off parts of the penalties incurred by them, is contrary to the first principles of jurisprudence; and the only apology that can be made for it is that it originated in a desire to remedy the evils of a penal system far too severe.
Next to being made formidable by the concurrence of severity and certainty, it is important that punishments should be made equitable. The more equitable they can be made, plainly over the wider area will their deterring force be exerted. It is extremely difficult, however, owing to the varieties of complexion and condition presented by men in society, to give penalties any great degree of this quality. The same pecuniary fine may deprive a poor man of his whole fortune, and be no more to a rich one than he daily spends in pleasure. Imprisonment may be fatal to the prospects of a man in a middle station, while to the peasant, who, on the approach of winter, considers whether to retire to the union or the jail, so far from being a punishment, it is a favour. Hard labour is severe on men unaccustomed to it, but the ordinary fare of multitudes; and even transportation, a grievous calamity to some, is welcomed by others. It has been proposed that, to secure a high degree of this quality, a discretion should be given to judges to apportion punishments to the nature and condition of offenders. But, besides that it would be difficult for judges correctly to appreciate these, it would be contrary to the first condition of employing punishments to leave such a discretion with them.
Connected with the difficulty of making punishments equitable is that of making them equally severe for the same crimes, even when, nominally, they are the same. It is simply impossible to attain equal severity in the same punishments inflicted in different places on different persons. Their severity in the last resort depends partly on governors of jails, but principally on turnkeys,—on coarse people and coarse machinery. The machines made to equalize punishments have failed; nor, had they succeeded on their part, would they have brought us near the equality which benevolence desiderates, and which could only be reached by punishing men proportionally to their sensitiveness and strength. The treadmill, Sir George Grey's crank, and other machines, are found to vary, as far as to require, in some cases, three times the labour per day necessary in others. When the crank is adjusted to require a few pounds force, it depends on the turnkey's care in oiling it whether it may not require several hundred. The differences also between criminals in point of skill and strength make it impossible to equalize punishments by prescribing the same amount of work to be done by different persons. All that can be effected is a rough approach to equality. The inequalities remaining must be borne as accidents of the system which the legislator is constrained to employ; they are in many cases compensated by its other accidents, and, at any rate, are as nothing to the whole consequences of crimes to convicts.
The most grievous part of punishment is, in many cases, its effect on the convict's relation to society, to which is partly due what truth there is in the saying, "Once a criminal,
always a criminal." The question, whether anything should be done by the legislator to save convicts from the social consequences of crimes, is a difficult one. The answer to it must depend on that to another, What would the effect of doing so be as regards the prevention of crimes? The reaction of society upon criminals leads them to war against it, and back to the dock; so that while the fear of it tends to prevent crime, itself tends to occasion it. This reaction cannot, however, be prevented; nor would it be desirable to prevent it, seeing that it acts to deter almost all from crime, and to propel to it only the few who have offended. Criminals cannot, then, be thrown back on society, and, at the same time, saved from the social consequences of their crimes. They can only be saved from them by being retained under the care of the state. But to save them in this way would be to let them drop out of society, and to extinguish all the minor differences of penalties, which would have no proportion to this single result of crimes. It would be as if there was the same penalty for all crimes which provoked this reaction, and no means of preventing men from committing the more mischievous as often as it promised to be the more profitable. And this argument will hold good till provisions are made for the gradual ascent into society of those who incur its decided enmity. As yet it is impossible to say whether such provisions can ever be made, or to pronounce on the propriety of attempting to make them. We desiderate a scientific analysis of full criminal statistics; and till that has been procured, these, and other questions concerning the treatment of convicts, must remain unsolved. At present the case of a criminal at war with society is as melancholy as it is helpless. Whatever private individuals may do to improve it, it seems contrary to principle that the legislator should interfere in such work. His business, on the contrary, must be to sharpen, by every means in his power, and guide the social instinct to which the position is due. And by such means, so far as yet appears, he will, in the long run, do most for the prevention of crimes.
The importance of correct information regarding the Criminal statistics operation of penal laws is universally recognised; criminal statistics, when properly collected and interpreted, disclose the causes of crime, its progress, and the defects of the agencies for repressing it. But on none of these points can even an approximate conclusion be drawn from criminal statistics as at present collected; their prima facie evidence must be received with large reservation. And, for two reasons, the statistics of crime in Scotland should be selected as the basis of an explanation of the nature of these reservations; first, because of the smallness of its area and population, and next, because its agencies for the prosecution of offenders are more definite than those of England.
The only point that can here be touched upon respects the evidence of our criminal statistics as to the progress of crime. The statistics of crime in Scotland bearing on this point are confined to the numbers of commitments for trial and of convictions; and arguments on its progress proceed on comparisons of the commitments in different years. It would appear, at first sight, that the main body of crime in each year might safely be averaged to its number of commitments. But unless we know that the causes which affect commitments remain invariable over the years to be compared, we can have no security that this average may not be wholly erroneous. The importance of attending to the causes which affect the administration of justice is indicated by the striking variations in the differences between commitments and convictions in different years. Thus, out of 4027 commitments in 1852, were obtained only 3018 convictions, leaving 1009 crimes unaccounted for; while, out of 3019 in 1853, were obtained 2849 convictions, leaving only 260. And equally striking variations are presented in the differences between commitments and convictions in