“Thus far, then,” I think I hear a reader say, “you have proceeded in your inquiries: thus far you have determined, or endeavoured to determine, what is expedient to be done in the way of law. But where, and when, to be performed? for some country and some period of time you must necessarily have had in view. If expedient in any country and at any time, it must be expedient in some individual country, at some individual period of time, that shall be assigned. Suppose, then, that country, suppose that period to have been assigned: let it have been your own, or not your own; let it have been this, or that, or any other. Will the laws, then, which you propose for the given country (what concerns the article of time need not any longer be repeated) would they be equally good for every other? If not, what is the influence of place and time on the expediency of what you propose? To give the question at once a universal form: What is the influence of the circumstances of place and time in matters of legislation? what are the coincidences, and what the diversities, which ought to subsist between the laws established in different countries and at different periods, supposing them in each instance the best that can be established?”
I will reduce the question at once to that form in which the solution of it has the most immediate relation to practice, and if just, will be productive of the most immediate benefit. I take England, then, for a standard; and referring every thing to this standard, I inquire, What are the deviations which it would be requisite to make from this standard, in giving to another country such a tincture as any other country may receive without prejudice, from English laws? I take my own country for the standard, partly because to that country, if to any, I owe a preference; but chiefly because it is that, with the circumstances of which I have the best opportunity to be informed.
This, then, is the hypothesis:— The laws which I would propose are established in this my country; and they are, of course, according to my conception of them, the best that can be devised. In this magnificent and presumptuous dream I indulge myself without controul; and in it, for the purpose of the argument, I must be allowed to indulge myself. This, then, is one term in the comparison: but there wants another. The problem, as it stands at present, is: the best possible laws for England being established in England; required, the variations which it would be necessary to make in those of any other given country, in order to render them the best laws possible with reference to that other country. But the problem, it is evident, must in strictness admit of as many solutions as there are countries which, in the point in question, are different from England and from each other. To make the tour of the globe in this manner, would evidently be an endless task. All that can be done here, is to pitch upon some one country in particular for an example: we might choose Russia, since, for a single empire, that includes the most ample tract, over which any system of laws could, according to the present divisions of territory, by possibility be extended. But what likelihood is there that laws passed in England should be received in Russia? We might choose Canada; for to that country, conquered by the arms of England, laws framed in England have been in contemplation to be transferred. But the differences of all kinds that can influence the inquiry are too inconsiderable between England and Canada to furnish that instruction which another example may afford. That it may be as instructive as possible, this second country should, in regard to the circumstances in question, form as strong a contrast with England as possible. Such an example we seem to have in the province of Bengal: diversity of climate, mixture of inhabitants, natural productions, face of the country, present laws, manners, customs, religion of the inhabitants; every circumstance, on which a difference in the point in question can be grounded, as different as can be: add to which, that between these two countries, a transfer of the kind in question has actually been made, or attempted to be made, in reality. In regard to almost any two other examples that could have been chosen, the question would have been a mere question of speculation: in regard to this, whatever just remark may happen to be made, is of immediate use, and applies immediately to practice. To Bengal, then, let us direct the principal measure of our attention; not precluding ourselves from casting, every now and then, for the sake of variety, a transient glance towards other countries, according as chance may present them to our view. To a lawgiver, who having been bred up with English notions, shall have learnt how to accommodate his laws to the circumstances of Bengal, no other part of the globe can present a difficulty.
These being the two countries between which the comparison is to be drawn, let us see upon what principles it is to be made.
It is our destiny, as soon as ever we have got a glimpse of perfection, to leave it by the way. Complete perfection requires universal accuracy: universal accuracy requires infinite detail. It would be something, however, to trace, though it were ever so general an outline, of the model of perfection; and like Moses, the Jewish lawgiver, to point out, though we enter not, the Promised land. To draw up in a perfect manner a statement of the difference between the laws that would be the best for England, and the laws that would be best for Bengal, would require three things: First, the laws which it is supposed would be the best for England, must be exhibited in terminis: next, the leading principles upon which the differences between those and the laws for Bengal appear to turn, must be displayed: lastly, those principles must be applied to practice, by travelling methodically over the several laws which would require to be altered from what they are in the one case, in order to accommodate them to the other. According to this plan, were it rigorously pursued, a complete code of laws for England, accompanied with a collection of all the laws for Bengal which would require to be different from those which are for England, would form a part only of the matter belonging to the present head.
The impracticability of this plan is such, as need not be insisted upon. On this plan I would, however, wish the reader to fix his eye; for though it would be impossible to travel over the whole extent of it upon paper, he may upon occasion travel over any or every part of it with what degree of attention he thinks proper, in his own mind.
* The substance of this Essay has appeared in Dumont’s Traités. It is now first published in English from the original MSS. of Bentham.
The laws which would be the best for England, the country from which the laws are to be transferred, being given, the next object of consideration is, By what principles are the variations necessary to be made in these laws, in order to accommodate them to the circumstances of Bengal, the country into which they are to be transferred, to be determined.
It has already been shown, that the end and business of every good law may, for shortness’ sake, be reduced to this universal expression: the prevention of mischief. Now mischief, of whatever kind, is ultimately reducible to pain, or, what may be deemed equivalent to it, loss of pleasure. What, then? have different countries different catalogues of pleasures and of pains? The affirmative, I think, will hardly be maintained: thus far at least, human nature may be pronounced to be every where the same. If the difference lies not in the pains and pleasures themselves, it must lie, if any where, in the things that are, or are liable to be, their causes. In this point, in effect, we shall find it to lie, upon a little examination. The same event, an event of the same description, nay, even the same individual event, which would produce pain or pleasure in one country, would not produce an effect of the same sort, or if of the same sort, not in equal degree, in another.
The pathological powers of any exciting cause depend upon two particulars: 1. Upon the state and condition of the person himself, whose interests are in question. 2. Upon the state and condition of the external object, the action of which is the exciting cause. Now the circumstances the union of which constitutes the state and condition of a man, in as far as he is liable to be affected by an exciting cause, as well as those which constitute the state and condition of any object which is exterior to him, in as far as the action of such object is liable to become, with reference to him, an exciting cause, are the same circumstances of which the detail has been given under the title of Circumstances influencing Sensibility. In the catalogue, then, of these circumstances, we shall find the sum total of the principles of which we are in search: the principles which, in our inquiry concerning the influence of place and time on matters of legislation, are to serve as a guide.*
The plan upon which this inquiry is to be conducted is already, then, completely drawn: the great task of invention has been performed: what remains is little more than manual labour. To assist him in the execution of it, the legislator should be provided with two sets of tables. Those of the first set would exhibit a number of particulars relative to the body of laws which has been pitched upon for a standard, as contemplated in different points of view: for example, a table of offences; tables of justifications, aggravations, extenuations, and exemptions; a table of punishments; a table of the titles of the civil code; a table of the titles of the constitutional code, and so on. Those of the other set will be: a general table of the circumstances influencing sensibility; tables or short accounts of the moral, religious, sympathetic and antipathetic biases of the people for whose use the alterations are to be made; a set of maps, as particular as possible; a table of the productions of the country, natural and artificial; tables of the weights, measures and coins in use; tables of its population, and the like.† These tables, if a man would work with accuracy, he should have, not metaphorically only, but literally and materially, before his eyes.
Upon the plan thus chalked out, I proceed to exhibit the alterations above spoken of, following the order of the matters in the original code which is supposed to be the standard. In this course it cannot, for the reasons assigned already, be expected that I should travel long: nor even in it that I should glean up the whole of the matter as I go. All that can consistently be done, is to give a set of examples, which in point of order shall exemplify the method that has been chosen, and in point of multitude and of variety shall afford a tolerably satisfactory illustration of the principles under the direction of which they have been brought to light. I proceed, then, according to the order of the offences.‡
1. Simple Corporal Injuries. — These would not admit of many modificasions, on account of difference of place. Mere corporal sensibility, of whatever differences it may admit in degree, is in kind much the same all the world over. Yet a wound in a hot and unhealthy climate may be much more dangerous than the same wound would be in a temperate and healthy climate.∥ Stripping a man stark naked, might cause death in Siberia, in circumstances in which it would be only play in the East Indies.
2. Irreparable Corporal Injuries. — Under this head it would be necessary to consider whether any, and what, indulgence should be given to the practice of emasculation. There would be more reason, it should seem, for such indulgence, where the services of persons thus mutilated are looked upon as a necessary guard to conjugal fidelity, than where the only use of them is to afford a somewhat higher gratification than could, perhaps, otherwise be procured to the ear of a musical dilettante.
3. Wrongful Confinement and Wrongful Banishment. — The effects of these two injurious acts are liable to great diversity, from differences in point of climate, manners, or religion. A night’s confinment in the prison called the Black-hole, in the hot climate of Calcutta, after producing the most excurciating torments, proved fatal to nearly all the persons who were confined in it. In a winter’s night in Siberia, the same number of persons might perhaps have undergone a confinement of the same length in a similar space, without any very remarkable inconvenience.
Confinement inflicted upon a Gentoo, might under certain circumstances be attended with the forfeiture of his caste; a possession to him much dearer than life: even banishment, if the effects of it were to seclude him from the necessary means of observing his religious ceremonies, might be attended with a similar effect. Either species of coercion might, at any rate, wound his conscience, inflicting thereby a simple mental injury of the severest kind. The Gentoos seem to stand at the summit of the scale of sensibility on this line. Descending, we find the Mahometan, the Jew, the Greek Christian, the Catholic Christian, all exposed to suffer from similar causes, according to their respective notions of religious duty: the Mahometan, by being hindered from performing his ablutions, or forced upon a diet inconsistent with his fasts; the Jew, in like manner, by being forced at any time into a forbidden diet; the Greek, by being put under a coercion of the same kind during any of his times of fasting; the Catholic, from a similar cause, or from the being prevented from hearing mass; even the pious Protestant might suffer in some degree, by finding himself deprived, for a length of time, of the comforts of a spiritual communion: these being so many circumstances demanding particular attention in the choice of punishments to be inflicted on such individuals.
4. Simple Mental Injuries. — Those sights, those discourses, which would give pain to the inhabitant of one country, would not, in every instance, be productive of a similar sensation to the inhabitant of another. This difference, too, like so many others, turns upon the point of religion. The sectary of every religion, at least the vulgar, that is, the great bulk of every sect, is exposed to the dread of invisible agents: but the names and attributes of those agents are different: the mind of a Gentoo may be filled with unspeakable terror from the apprehension of a visit from Peshush; while an ignorant Christian is afraid of witches, devils, ghosts, and vampires.
The votary of every sect may receive a cruel wound from any discourse or exhibition which tends to reflect contempt on any of the objects of his veneration. Protestants feel little in comparison but for Christ Jesus, and for that Blessed Spirit which is often figured as a dove. The Catholic, to the list of Divine Persons adds the Virgin Mary; and every martyr and every saint who is added to the calendar, makes an almost equal addition to the sphere of his sensibility. The Mahometan has his apostles besides Mahomet; and the Gentoo his deities besides Brama.
Among the higher classes of Mahometans and Gentoos, for a man to intrude himself into the presence of a married woman, would to the husband be an unpardonable injury; a bare request to see her, an affront. Such injuries, to which the European would be insensible, might in Asia, with perfect propriety be referred to the denomination now before us. More than this, the idea which it would be proper to annex to these several offences will vary much in different countries, in virtue of the various circumstances to which it will be respectively proper to give the effect of justification, exemption, extenuation, or aggravation.
The differences of castes in Hindostan furnish a copious stock of extenuations and aggravations to different classes of offences.
The extraordinary extent, if one may so say, of the surface of their moral as well as religious sensibility, exposes them to a proportional variety of injuries: hence so many peculiar grounds of defence and provocation. We are told, that “on the Malabar side of the coast, if a Hallachore chance to touch a man of a superior tribe, he draws his sabre and cuts him down on the spot, without any check from his own conscience, or from the laws of his country.”*
A prejudice so strong, though altogether unjust and ferocious, would require great forbearance on the part of the legislator: it would require art to soften and to combat it. But it would be better to yield to it altogether for a time, than uselessly to compromise his authority, and expose his laws to hatred.
5. Semi-public Offences. — Different countries are subject to different calamities, according to their situation, climate, productions, means of defence, &c.: hence results a great variety in the laws of police.
In those countries which are nurseries of the plague, many precautions may be requisite, which would be needless against that horrible distemper in other countries. Such precautions would give rise to a correspondent train of offences. It might become an offence, for example, to pass from one town to another; to enter a port; to leave a vessel before the prescribed time; or to disembark a bale of goods, &c.
In Great Britain, it could scarcely be in the power of any authority, short of the supreme, to do any thing in the way of engrossing or otherwise, towards producing or enhancing the calamity of famine. In islands of less extent and fertility, or under governments more liable to abuse, the danger might not be so ideal. In Bengal, the famine by which so many millions were swept off in the year 1769, was owing, let us hope, to no other cause than the inclemency of the seasons, or the insuperable difficulties attending a new system of government: but without legislative precautions, a similar effect might perhaps be produced by the abuse of delegated power in that distant member of the British Empire.
In mountainous countries, great mischief is sometimes done by falls of snow, which, in the neighbourhood of the Alps, are called avalanches, and by which whole villages are sometimes overwhelmed. A sudden concussion given to the air, by means so inconsiderable as the discharge of a pistol, will sometimes, it is said, be sufficient to give rise to a catastrophe of this sort. I forget what traveller it is who says, that on this account the discharge of fire-arms is made penal in some parts of that mountainous region.
In maritime countries, the coasts of which consist of a loose sand, there are often found different sorts of plants, chiefly of the rush kind, which, by the matted contexture of their roots, communicate to the soil a degree of tenacity, by means of which it is enabled to afford a more effectual resistance to the encroachments of the water. By the laws of various countries in Europe, the destruction of such plants is prohibited, under penalties which would be altogether useless in different situations.
In the Dutch and Flemish provinces, the extreme vigilance with which it is necessary to guard against the incursions of the sea, will naturally give occasion to various regulations, for which there would be no use in a more elevated situation.
In towns where the coldness of the climate requires that the houses should be substantial, and the dearness of ground-rent renders the style of building lofty, the danger that may attend the fall of such as happen to be ruinous, gives occasion to regulations which would be unnecessary in those sultry regions where an ordinary house is little more than a large umbrella.
In some parts of Spanish America, the fear of earthquakes prevents the inhabitants, it is said, from giving to their buildings that degree of solidity which, on other accounts, they would deem eligible. In such hazardous situations, the superintending care of the legislator might, perhaps not improperly, second the prudence of the individual.
In hot climates, the letting into a country a mass of stagnant water might, in certain situations, be productive of an injury to public health, from which the inhabitants of more temperate regions are in a great measure secure.
Sicily and other parts of Italy are exposed to a wind called the Sirocco, which, by the excessive heat and languor it occasions, is extremely troublesome. Certain parts of the East are occasionally afflicted with a wind called Samiel, the influence of which is said to be almost instantaneously fatal. If, in any of those countries, there was a wood, or a hill, or even a wall, which could in any degree answer the purpose of screening the neighbourhood from the blast, the removal of such a fence might be guarded against by penalties which, in our temperate regions, would have no such utility to justify them.
In Arabia, and other countries where water is scarce, the exposing or dissipating the water of a single spring might expose thousands to perish with thirst, and render the communication between one district and another almost impracticable.
In Russia, the destroying or putting down a few inns might be productive of effects almost equally mischievous. In England, hundreds of much better houses of the like sort are put down every year, without occasioning the least sensation.
6. Self-regarding Offences against the Person. — In the northern climates, drunkenness makes men stupid: in the southern, mad: in the one, it is folly; in the other, wickedness. To speak at random, in the one situation, penalties against drunkenness should be slight; in the other, they should be severe. In Mahometan countries, the strict prohibition supposed to be laid by the Koran against the use of intoxicating liquors, makes some amends perhaps, for the mischievous effect of that barbarous religion.
7. Offences against Reputation. These offences vary according to the state of opinions and manners. Among other traits which discover the manners of the ancient Greeks, we learn, from what Xenophon relates regarding himself, that crimes against nature could be esteemed but a joke.* Even now, wherever the Mahometan religion prevails, such practices seem to be attended with but little disrepute. In England, not only the letter of the law makes them capital, as in other parts of Europe, but the law is carried into execution with a degree of zeal which no other species of criminality is sufficient to inspire. But were it even altogether unpunishable by law, a groundless imputation of this nature would be an injury scarcely less atrocious than at present, since the consequence of being reputed guilty would be attended with a degree of infamy which can be compared to nothing so properly as that which attends forfeiture of caste among the Hindoos.
In England, to say of a farmer that he had sown rye-grass and clover in the same field, would be of as little prejudice to him, as to say that he had sown either of those plants alone. In Judea, while the Mosaic institutions were in vigour, such an imputation would have been a very serious injury: Levit. xix. 19; Deut. xxi. 9, 10, 11. A Spanish grazier would as soon hear of his having bred a mule, as of his having bred a horse: the purity of a Jewish grazier would have been shocked at the imputation.
Universally, the degree of damage which a man sustains by an act of defamation, depends not at all upon the aspect borne by the dictates of utility to the practice he is charged with, but to the aspect which is borne to the practice by the political, moral, and religious sanctions: by the moral, principally and immediately; and by the other two, chiefly in virtue of the degree in which the moral is subject to their influence.
8. Offences against the Person and Reputation together. — It is evident enough, that the idea annexed to the denomination of a lascivious injury must be liable to considerable variation, according as the manners of the people, in this respect, are more or less reserved. Different parts of the female body are veiled in different countries with different degrees of care. In Asia, the whole person is invisible. In Sparta, the young women appeared in public with an open and flowing robe. Among ourselves, propriety as to dress changes with the fashions.
The idea of obscenity, how strange soever it may appear, seems not to be invariably annexed to the same parts and the same functions. Among lettered nations, indeed, men’s notions in this respect seem to be pretty uniform: but among unlettered nations, however civilized in other respects, the case is different. In Otaheite, the few notions of modesty which are discoverable, seem to be transferred from the functions by which the species is continued, to those by which the individual is preserved. Atkins the traveller observed an instance of this among a tribe of negroes:* as often as the king drank, two of his attendants “held up a cloth before his face, that he might not be seen.” Wine, however, is no friend to modesty: when his majesty had “got drunk, this respect was laid aside.” The same notions of delicacy have been established in other African tribes, if we may give credit to several more ancient travellers, who are quoted by Barbeyrac in his Notes on Puffendorff:† “The inhabitants of Senegal,” they tell us, “are as much ashamed of their mouth, as of any other part of the body: and therefore they ordinarily go with a cover upon it, which they only take off for the purpose of eating.” This custom may perhaps derive its origin from some superstition. The inhabitants of the Maldives carefully hide themselves during their repasts, fearful lest their food should be charmed whilst they are eating it.
9. Offences against Property. — It is evident that these are liable to infinite diversity, in as far as the events, which it is expedient should be admitted into the list of those constitutive of title, are liable to differ. Other differences will necessarily arise, from a thousand sources, too tedious to particularize: to enlarge upon this head would be impossible, without prematurely engaging in the intricacies of the civil branch of jurisprudence.
The name of usury will in different countries, according to the greater or less plenty of money, be given to contracts of very different descriptions: in England, six per cent. is deemed excessive; in Bengal, twelve per cent. is deemed moderate; it is the usual interest, just as it was among the ancient Romans.
The offence of extortion will require to be differently defined in different political situations. If a clerk in a merchant’s counting-house were to present his compliments, and state to the prime minister of England, that a present of money would not be unacceptable, the statement would be laughed at. But such has not always been the case in Bengal: an equally civil and cautiously worded message, directed to Mahomed Reza Pawn, appears not have been altogether unattended to.‡
The kind of government occasions a great variety in the definition of this kind of offence. Greater precautions are requisite to protect the subjects in a conquered country, or under an absolute government, than among the citizens of a free state. On the other hand, a conquering republic is more oppressive to the conquered country than a conquering monarch: a monarch may be rapacious; but he is interested in preventing the exactions of his officers: in a republic, on the other hand — in the Senate of Rome, for example — there existed a tacit collusion among those that possessed authority.
Some religious professions expose their followers to pecuniary extortion: those of the Mahometans and Hindoos are particularly subject to this abuse; but they have not equalled the Catholic church in this particular, which, whilst preaching poverty, nearly succeeded in becoming the sole proprietor of all property. In Protestant countries, this field of extortion has been shut up: if the priest assists his flock in the way to heaven, it is well; but he is not believed to possess the power of preventing them going thither without him.
10. Offences against Condition. — The powers annexed to conditions of the domestic kind, are constituted by the justifications annexed to various offences; or, to speak more plainly, by exceptive clauses subjoined to the laws establishing the circumstances constitutive of the parties’ title to the condition in question, as circumstances justificative of such acts as, were it not for such exceptions, would be unlawful: these differ in different countries.
In most Christian countries, it must be some very extraordinary behaviour on the part of a wife, that can render it allowable in a husband to keep her under confinement: to a Mahometan (I speak always of those who are rich enough to live in this style) not to be allowed to keep his wives in confinement, would be intolerable.
The matrimonial condition is not the same in reality in Mahometan and Christian countries. Here, the woman contracts with her husband nearly upon a principle of equality; there, marriage is impressed with a character of servitude: here, the woman preserves her liberty; there, at least among the more opulent, she is kept in a state of seclusion. Among Christians, polygamy consists in having more than one wife; among Mahometans, in having more than four wives: among Asiatics, the husband is more the master than the guardian of his wife; in Europe, the husband is as much the guardian as the master.
After the death of her husband, the wife does not regain her liberty as among us: in Hindostan, among the Mahometans at least, the next heir of the deceased husband becomes the guardian of the widow; and, without the privileges of the husband, he succeeds to his authority as her jailor.*
I have said, among most European nations: in Spain, we find a slight tincture of Asiatic manners, left by foreign conquerors, after the religion that seems to have introduced them had been extirpated; a tincture originally foreign, and now almost worn out: in Russia, we find manners originally Asiatic, softening by culture into European.
The examples thus given will suffice to show the manner in which the principles ought to be applied; with what care it is necessary to proceed, that established opinions may not be violently shocked; and in what manner the laws may be adapted to the imperious, and oftentimes unchangeable circumstances of the people to be governed.
The subjects of public offences, of constitutional law and procedure, have not yet been glanced at; nor will it be necessary at present to pursue them. The influence of local circumstances is generally recognised as to the two former; and with regard to all of them, it would not be easy to bring the points of difference to view in so striking a manner.
* See Introduction to Morals and Legislation, chap. vi.
† For a list of articles or heads, comprising a statement of the wealth and commerce of any country, see the Abbè Morellet’s Prospectus d’un Nouveau Dictionaire de Commerce, p. 45. Paris 1769, 8vo.
‡ The table of the circumstances influencing sensibility is of continual use. It is applicable to a variety of the most important purposes, of which this now before us is but one. It was first thought of as a necessary implement to the estimating the mischief of an offence: then for the purpose of adjusting the quantum of satisfaction: then again for estimating the force of a lot of punishment: in all these cases, the country of the party injured, the party who is to be punished, on whom punishment is to be inflicted, being given. Montesquieu had already taken the principal part of them into consideration, with a view, more or less explicit, of giving a different adjustment to the laws, in consideration of the different exigencies of the inhabitants of different countries: placing in the front of his inquiries those secondary circumstances, as I have styled them, which only operate through the medium of those others which I have termed primary. Before Montesquieu, a man who had a distant country given him to make laws for, would have made short work of it. “Name to me the people,” he would have said; “reach me down my Bible, and the business is done at once. The laws they have been used to, no matter what they are, mine shall supersede them: manners, they shall have mine, which are the best in nature; religion, they shall have mine too, which is all of it true, and the only one that is so.” Since Montesquieu, the number of documents which a legislator would require is considerably enlarged. “Send the people,” he will say, “to me, or me to the people; lay open to me the whole tenor of their life and conversation; paint to me the face and geography of the country; give me as close and minute a view as possible of their present laws, their manners, and their religion.”
∥ In a hot country, the slightest scratch is sometimes followed by tetanus or locked jaw, which generally proves mortal. See Dr. Lind’s Essay on the Diseases incident to hot climates.
* Scrafton’s Reflections on the Government of Indostan. — Verelst’s View of the English Government in Bengal. See Verelst, p. 72. — East India Reports of the House of Commons, 1772.
* Anabasis — and see the Memorabilis.
* Voyage to Guinea. 8vo., 2d edit. 1737; p. 199.
† B. VI. chap. i. § 31.
‡ East India Reports, Ho. Com. 1772.
* House of Commons Reports on East India Affairs, 1731.
Looking over the examples above given, we shall find reason for dividing them into two classes: the first class, consisting of those which are physical, in which the influence of the circumstance operating as a ground of variation is insurmountable: the other, consisting of those which are moral, in which that influence is not necessarily and absolutely insurmountable, however difficult, inexpedient, or unsafe, it may be to act in opposition to it.
To the first class belong the circumstances of climate and the texture of the earth, in as far as the condition of things exterior to man is determined by them.
To the other class belong the circumstances of government, religion, and manners, including the several primary circumstances, through the intervention of which these secondary ones display their efficacy.
But it may be said, that the articles of climate and texture of the earth, but particularly the former, have a certain influence over the articles of government, manners, and religion: and since it will be impossible to change the one, it will be impossible to alter the other. Hence, these physical circumstances may be found opposing insurmountable obstacles to a certain kind of legislation.
The influence of these physical circumstances is incontestible: but are they necessarily pernicious? are they not subject to the art of the legislator? The whole of history proves, that there is no circumstance connected with climate or texture of the earth incompatible with the happiness of man; and that, wherever men can live, there they may possess a government, a religion, and manners, that will render them happy. The world has been a field of change: Egypt no longer worships the goddess Isis, and India may cast off its devotion to Bramah: Italy has nourished the most warlike of people; and the effeminacy of the modern Italians cannot therefore be considered the effect of their climate: Greece has been once covered with republics, and there is therefore no reason to believe it doomed to be for ever the habitation of slaves.
Mahomet impressed upon the peaceful tribes of Arabia a warlike enthusiasm, overturning, with a handful of fanatics, the laws, the religion, the customs, the inveterate prejudices of a multitude of people. Could we suppose this extraordinary man possessing the same power of will, endowed with more knowledge and more genius, would it be too much to say, that he might have bestowed on these nations, laws more consonant with their happiness, and less hostile to the human race?
If this example be not deemed conclusive, we may turn to the example of Peter the Great. What he has not done in point of legislation, is not to be attributed to the effects of climate: this did not set the bounds to his success; he accomplished all that he designed, and if his mind had been embued with a perfect system of legislation, he would have found greater facility in its establishment, than in establishing an imperfect one. The greatest obstacles with which he met, arose from his own faults.
But there are yet more delicate and more important questions, which turn upon the suitability of the changes, and the manner of their accomplishment.
Take the form of government in the country to be regulated, and compare it with that of the standard country in any point whatsoever: that of the former is, in the point in question, either exactly upon a par with the latter, or superior to it, or inferior. That it should be superior, is scarce consistent with the supposition; for then the law of the standard country is not in that point what it is supposed to be, the best imaginable. If the former be inferior, then comes in the question, Which is likely to be the greater evil? the evil depending upon such inferiority, or the evil, if any, which might be produced by the measures requisite to remove the other? the evil of the disease, or the evil of the remedy? This question is complicated, and includes many others; the evil of the remedy is, perhaps, likely to be but temporary; while the evil of the disease, and thence the benefit of the remedy, is likely to be perpetual. Here, then, comes in another question: What portion of present comfort is it worth while to sacrifice for the sake of any, and what, chance of future benefit? and the magnitude of each being given, for what length of time is it worth while to sacrifice a present comfort of the given magnitude, to a given chance of succeeding benefit?
That, in many instances, it must be extremely difficult to ascertain, to which of these cases the expediency of a given law belongs, and that to arrive at entire certainty may be absolutely impossible, is not to be denied: but the use of breaking down the question into these subordinate questions, is not the less undeniable. It is always something to see where the difficulty lies, although it should be insuperable; and to point out the only means by which the best solution can be given, although that solution should not be so satisfactory as could be wished. It is something to get certain principles, leaving facts in the uncertainty that belongs to them. By showing the real uncertainty of the most conclusive arguments that can be offered on the subject, it will prevent us from giving to less conclusive arguments, more than their due weight: it will enable us to unravel the web of sophistry, and to humble the pride of declamation: it will be of service, in as far as the caution that accompanies a salutary doubt, is preferable to the rashness that may be the result of misconception. Such sort of instruction, indeed, brings little thanks to him who gives it: to be in doubt is to be unsatisfied; to be unsatisfied is to be uneasy. People in general had rather be decided, and in the wrong, than in the right and undecided. Declamation has here, then, as on many other topics, the advantage over argument; and a man’s chance of persuasion will be in proportion, rather to the energy of his expressions than to the justness of his views.
That even in regard to forms of government, there should be many points that are indifferent, may easily be conceived. The same may happen with respect to religion, as with respect to every thing that concerns the temporal interests of society.
It is still more evident, that the case may easily be the same with regard to manners. It may even happen, that the law which prevails in the country to be regulated, shall be better for that country than it would be in the standard country: while the law that obtains with relation to the same point in the standard country, is better for that country than it would be in the country to be regulated.
Thus, suppose that in the standard code it were found advisable that, in such part as relates to procedure, an institution somewhat similar to that at present in force in England, with relation to juries, should have place: it might happen, that in Bengal, such a plan could not in any part of it be adopted with any advantage, or that, if it could, yet, in several points, a variety of additions, defalcations, or alterations, would require to be made. Why? Because in England, in certain causes, the requisite degree of impartiality and intrepidity taken together, might with better reason be expected from juries than in a judge: whereas in Bengal, in the same causes, the same degree of those qualities taken together, might with better reason be expected from a judge than from a jury, at least if constituted in precisely the same way as in the former case. This difference, however, would depend in good measure upon a certain inferiority which at present there appears to be in Bengal, with respect to the form of government on the one hand, and the national manners on the other: insomuch, that were the time ever to come, when such inferiority should disappear, the reasons for the difference between the institutions would become less forcible, and perhaps vanish altogether. At present, it has been said, the passion of avarice has implanted among the inhabitants of English race in Bengal, two evil propensities: a propensity to practise extortion, to the prejudice of the subjected Asiatics; and a propensity to practice peculation, to the prejudice of the public revenue. Hence arises a sort of tacit convention and combination on the part of every man, to support, assist, and protect every other in the practice of the like enormities. A jury, then, if taken at hazard from the body of English inhabitants, would never convict a man of either of those offences, how manifest soever were his guilt. But a judge not having any such concerns with the natives, as could lead to the practice of extortion, nor being invested with any such trust as could give room to peculation; having the eyes of mankind fixed upon every part of his conduct, and being raised by his rank and fortune above the level of ordinary society, would have strong motives to restrain him from engaging, and no adequate motives to induce him to engage, in any such combination. So long, then, as such a state of manners continues, you must either have no laws against extortion or peculation, or no juries, or juries de medietate, composed partly of English and partly of Asiatics, if a mixture of that sort can by any set of expedients be made practicable, and eligible upon the whole. Whether the facts be as here suggested, I pretend not to inquire. I state them merely in the way of supposition, to answer the purpose of a feigned case, for which purpose their truth is altogether immaterial: it is sufficient if they have such a colour of truth as not to appear absolutely improbable.
If this be allowed, it is then not a case utterly improbable that the standard of perfection in matters of law may with regard to certain points be different in different countries, for a time at least, even where the influence of physical grounds of variation is out of the question. The case may be the same with regard to religion politically considered; but is more particularly apt to be so with regard to those ordinary and continually repeated points of behaviour, which come under the head of manners and way of life. It may be better, that in Bengal at least, among people of Asiatic race, the husbands should be disposed to expect that their wives should keep confined, and that the women should be disposed to submit to such confinement: while, in England, it may be better that the husband should not be disposed to entertain any such expectation, nor the wife to comply with it. If that be the case, there will be no reason why, by any news laws, we should seek to make an alteration in these ancient manners.
I state this again hypothetically as before. Montesquieu seems to be decided in the affirmative. “Those who read,” says he,* “of the treacheries, assassinations, poisonings, and all sorts of enormities, which the liberty of the female sex is the occasion of at Goa, and in the other settlements of the Portuguese in the Indies, where religion allows but of one wife, comparing them at the same time with the innocence and purity of manners that characterize the same sex in Turkey, Persia, the Mogul Empire, China, and Japan, will be satisfied that it is oftentimes as necessary to separate women from men, when a man has but one of them, as when he has a number.”
How the case may have stood among the Portuguese, I cannot say: but the English have also their settlements in that country; and English wives have at least as much liberty as could possibly have been enjoyed by Portuguese; yet who ever heard of any such abominations, as Montesquieu has been speaking of, among the former? If this example had occurred to Montesquieu, he would not have attributed these things to the influence of climate; and a more general view of his subject would perhaps have rendered him less dogmatic.
Thus much must be allowed at any rate, that, in order to judge of the regard that ought to be paid to subsisting institutions, these institutions must be examined. In making such an examination, there are two questions which are constantly to be kept in view: what are the present institutions relative to the point in question? and how far the expediency of giving them continuance, follows from their existence? These two questions, distinct as they are, are very often confounded. But the more these points are in danger of being confounded, the greater is the care that ought to be taken to keep them distinct: in the first place, in one’s own mind; in the next place, in the language made use of to express them. Unfortunately, nothing has been more common among writers than to confound them. Indeed, it is almost next to impossible so to turn the phrase in each case as to keep them separate: all that one can do, is to give warning of the distinction once for all. This source of misapprehension could not but occur in the course of the examples given in the last preceding chapter; but being now noticed, it is to be hoped it will be removed. I there gave them as circumstances, the influence of which required to be attended to; without meaning to determine, whether it were advisable to give way to it without reserve. There being such and such laws already subsisting, it deserves consideration, how far a new set of laws, inconsistent with them, ought to be established: there being such and such a religion and state of manners already prevailing, to which the new laws would be repugnant, it deserves consideration, how far the establishment of such laws is to be wished for. This was a question I meant, in many cases, merely to bring to view, without deciding upon it.
To show how natural it is to fall into this confusion, I will quote an instance out of Montesquieu; which, however, is but one out of a thousand. “When a country,” says he,* “is so circumstanced, that the climate of itself produces more inhabitants than the country can support, it is idle to make laws in the view of promoting population.” Here, then, he lays down a rule; immediately on the back of it, he produces three examples, for the purpose, one should naturally suppose, of justifying the rule. If the rule which he has given is conformable to his sentiments, one should think that the examples he gives of what has been done, in conformity to that rule, are so too. But in the instances I am about to mention, one can hardly imagine this to have been the case. “In China and Tonquin, a father is permitted to expose his new-born children. In China and Tonquin, again, the father is permitted to sell his daughters, though at a marriageable age. In Formosa, a woman, before she is five and thirty, is not permitted to bear children, though able and willing to support them: it being the duty of the priestess to search all women under that age who are suspected of the crime of pregnancy, and if guilty, to force an abortion, by stamping on their bodies.” How immense the distance between the policy of the rule, and the policy of the several laws which are brought to view, as if they were so many applications of the rule! Judging from the rule itself, it is folly, by turning a pleasure into a task, to render the lives of the present race uncomfortable, for the sake of giving birth to contingent beings, who would be produced without it. Judging from the first example, it is right to permit a parent to take away life from a being, who cannot suffer from the apprehension of the loss of it; and to whom, if he retained it, it would only be a burthen. Judging from the second example, it is right to permit a parent to consign his daughter, in whom education has moderated the bitterness of such a change, to the arms of a man, whom it is uncertain whether she will like. Judging from the third, a stranger is permitted or required to invade the peace of a family, to violate the person of a woman, and endanger her life, by a most cruel outrage, and all without a motive.
It is difficult to form a clear idea of what Montesquieu intended: he appears to have confounded the question of fact with the question of fitness. He has laid down a maxim, and has cited three customs, which have only a very distant connection with it; and yet he seems to have placed them all upon the same level.
Of the circumstances which make the laws that would be expedient in one country ineligible in another, some are grounded in nature, some in prejudice: some depend on the state and condition of objects that are extrinsic with regard to the mind of man, some on the state and condition of the mind of man itself. The establishment of such laws as, were it not for the influence of these circumstances, would be the best, is, in the first case, impossible; in the latter, in some instances, equally impossible: in others possible, but not worth the while, considering the hazard: in some, perhaps, neither impossible nor unworth the while, supposing the business to be planned with sagacity, and conducted with the utmost tenderness and circumspection.
When attempts have been made to transplant, without revision, the laws of one country into another, and the consequences of such attempts have proved pernicious, it has been partly, indeed, because the laws were bad there, but partly also because they would have been bad any where. They were bad in the soil that gave them birth: how should they be tolerable in another? In an immense heap of rubbish, there may have been some diamonds: without attempting a separation, dirt and diamonds have been shot down together. The law is every where an immense labyrinth: to traverse its recesses, would be a tax on indolence as well as a test of talents; the severest tax that can be imposed on the one, the severest test that the other can be exposed to. It is a work of labour: this labour they never have had the courage to engage in for their own selves; how should they ever for the sake of others?
Not that the laws of barbarous nations should therefore be eternal, while those of the most civilized demand a change.
Laws need not be of the wild and spontaneous growth of the country to which they are given: prejudice and the blindest custom must be humoured; but they need not be the sole arbiters and guides. He who attacks prejudice wantonly and without necessity, and he who suffers himself to be led blindfold a slave to it, equally miss the line of reason.
Legislators who, having freed themselves from the shackles of authority, have learnt to soar above the mists of prejudice, know as well how to make laws for one country as for another: all they need is to be possessed fully of the facts; to be informed of the local situation, the climate, the bodily constitution, the manners, the legal customs, the religion, of those with whom they have to deal. These are the data they require: possessed of these data, all places are alike. If they are more at home in their own country than elsewhere, it is only because the requisite stock of facts in the former situation is already possessed by them, without their being obliged to wait the time which, in a foreign country, it would require to seek them out.
The following rules, if given for the purpose of information, would be idle; but by way of memento, they may have their use. They are chiefly a recapitulation of the preceding disquisitions:
1. No law should be changed, no usage at present prevailing should be abolished, without special reason; unless some specific assignable benefit can be shown as likely to be the result of such a change.
2. The changing of a custom repugnant to our own manners and sentiments, to one which is conformable to them, for no other reason than such repugnancy or conformity, is not to be reputed as a benefit. The satisfaction is for one, or a small number; the pain is for all, or a great number: the first and sufficient reason. Besides, where shall these changes founded in caprice be stopped. If my taste is a sufficient reason for me, an opposite taste may be as sufficient a reason for another. The emperor who would proscribe one letter of the alphabet, should recollect that his successor may determine to restore it: Queen Elizabeth, who was so anxious about the dress of the clergy, should have remembered that it might as easily be altered in the following reign.*
3. In all matters of indifference, let the political sanction remain neuter, and let the authority of the moral sanction take its course.
The only difficulty lies in ascertaining what is, and what is not indifferent. Here the great use of a complete catalogue of pains and pleasures appears: it furnishes the only elements for the solution of this difficulty. If there result from an action, an evil, neither of the first nor second order, it belongs to the class of things indifferent.†
When it was sought to engage Frederic the Great in the question, which then agitated the town of Neufchatel, respecting the eternity of punishment, he replied, that if the Neufchatelans were pleased with being damned eternally, he did not wish to deprive them of the satisfaction.
4. The easiest innovation to introduce, is that which is effected merely by refusing to a coercive custom the sanction of the law; especially where the coercion imposed upon one party, is not attended with profit to another.
In Catholic countries, it is sufficient for the destruction of all that is injurious to liberty, in convents, &c. to refuse the sanction of the laws to monastic vows.
In India, the wife often resolved to burn herself upon the death of her husband: if the act were altogether voluntary, and she were persuaded she should find her account in it, it might be represented as tyrannical to oppose her; but such permission should not be granted till after she had undergone an examination, and the fact of her consent were indubitably ascertained.
5. The clear utility of the law will be as its abstract utility, deduction made of the dissatisfaction and other inconvenience occasioned by it. Hot-headed innovators, full of their own notions, only pay attention to abstract advantage. They reckon discontent for nothing: their impatience to enjoy, is the greatest obstacle to their success. This was the great error of Joseph II. The greater part of the changes he proposed were good abstractedly; but as he had not considered the dispositions of the people, he rendered his best designs abortive by his imprudence. How often are men the dupe of words! What is the public good, but the happiness and contentment of the public?
6. The value of dissatisfaction will be in the compound ratio of three things:
These are the bases of calculation, if we would operate with success: the smaller the number of the discontented, the greater the chance of success; but this is not a reason for employing less humanity in the manner of treating them. If only one person were rendered unhappy by the change, he would yet be worthy of the notice of the legislator, who ought at least to free his measures from insult and contempt, to create new hopes, to collect those which revive, and to publish amnesties for the past. Really useful changes possess a fund of reason, which will tend at all times to produce a conviction of their utility.
Every species of dissatisfaction should be relieved by its particular remedy. A pecuniary loss requires pecuniary compensation: a loss of power may be compensated either by an indemnity in money or in honour. Dissappointed expectation may be softened by those arrangements which open a new career to hope.
7. As a means of obviating dissatisfaction, indirect legislation should be preferred to direct; gentle means, to violent: example, instruction, and exhortation should precede, or follow, or, if possible, stand in the place of law.
Ought inoculation to have been established by law? No, without doubt. Even supposing it had been possible, the effect would have been dreadful: it would have carried alarm and dismay into a multitude of families. The practice, however, has become universal in England, from the force of example and public discussion alone.
Catherine II. was very skilful in the art of ruling minds. She did not make laws obliging the Russian nobility to enter the military service, which they disliked; but by determining all their ranks, by fixing all precedencies even among civilians, according to the grades in the army, she combated their indolence by their vanity; and the nobles of the most distant provinces sought to obtain the new distinctions, that they might not be superseded by those whom they had hitherto esteemed beneath them.
8. In choosing, among many laws, which shall be introduced first, select that which, being established, will facilitate the introduction of the others.
9. The slowness of its operation is, as far as it goes, an objection to a measure; but if this slowness may be a means of obviating a dissatisfaction, which expeditious measures would excite, the former may be preferable.
When the prejudices of the people are violent and obstinate, the legislator is in great danger of running into extremes. One extreme is, to take fire at the prejudice, and resolve upon its extirpation, without weighing the good and bad effects of such a measure in the balance of utility: the other is to suffer these prejudices to be made use of, as a pretext for that indolence and pusillanimity which would leave the evil without remedy.
These prejudices have generally some salvo for good government and good morals. It is the province of the legislator to find out this salvo, if there be one, and make use of it; and, in the mean time, if it be worth while, to try what instruction and other gentle means will do, towards getting the better of the prejudice.
It was in this manner, as has been observed by Rousscau,* that Francis I. overthrew the employment of seconds in duels: “Quant à ceux, dit il, qui aurant la lâcheté d’employer des seconds, &c.” He opposed honour to honour; and as the individuals fought to prove their courage, no one dared to call in those auxiliaries, whose assistance was thus marked as throwing a suspicion upon that courage itself.
But if nothing of the kind will do, and it be found impossible to untie the gordian knot, it must e’en be cut. The welfare of all must not be sacrificed to the obstinacy of a few, nor the happiness of ages to the quiet of a day.
Prejudices that appear unsurmountable at first view, may be got over with a little management.
Among the inhabitants of Hindostan, a man of a certain rank would think himself eternally dishonoured, were he obliged to make his appearance in a court of justice. What does that signify? Persons of that description are always rich: send a special commission to examine them, and make them pay the expense.
Among the Hindoos, persons of a certain rank would sooner submit to any inconvenience than take an oath. What does that signify? Persons of that description may as well be trusted upon their word, as others upon their oath. Do they say what is not true? It is as easy to punish them for simple falsehood, as to punish others for perjury. Do not Quakers among us depose upon their affirmation? and do not Peers, in certain cases, affirm upon their honour?
Neither Mahometans nor Gentoos can bear that any officer of justice, any more than any other person of the male sex, should visit the apartments, much less the persons, of their women. Justice, on this account, is not worth purchasing at such a price. What does that signify? Appoint women to the office.
An Englishwoman would cry out, and with equal justice, against the tyranny of subjecting her person to the brutal inquisitiveness of male examiners. How many Englishwomen, deriving protection against such treatment, from the odium which it would excite, return from Calais to Dover swaddled up with lace like Egyptian mummies? But is it absosolutely necessary, because female delicacy is not to be violated, that the public should be defrauded? that modesty should be turned into a cloak for avarice? Either the payment of a tax upon these luxuries ought not to be commanded, or the non-payment ought not to go unpunished.
Among the various castes or tribes of the Hindoos, there is one of which the members are called Decoits. To these Decoits, Brama has revealed, that it is proper they should steal every thing they can lay their hands on, and, if necessary, rob and murder every body that comes in their way. What is to be done with them? Are they, out of respect to their conscience, to be permitted to labour in this their vocation? No, verily; for if it was the pleasure of Brama that these people should apply their industry to robbery, it was also the pleasure of Brama that they should bear the consequences of the industry, that shall have been employed by honest men to save themselves from being robbed.
In another country in Asia, it is reported that there lived a tribe of people, from whom the word assassin has its name. If one of these were commanded by their chief (who found frequent occasion to issue such commands) to go and cut the throat of any one he named, obedience was sure to follow. The terror of this titled murderer spread far and near: kings were not safe upon their thrones. But at last a Tartar chief found means to apply the only remedy that probably occurred to him against such a public pestilence, possibly the only one it admitted of; and the whole race was exterminated by him.
Mr. Hastings, in considering how to deal with the Decoits, recommends a milder, yet not less effectual remedy: let the men and their families, says he, be made slaves: domestic slavery, considered as a punishment, has little severity in it (as Montesquieu already had observed) in a country where political freedom is unknown: as a preventive remedy, nothing could be more effectual.
Montesquieu* says, that in changing customs and manners, customs and manners only should be employed, not laws. Why? Because, says he, laws are the particular institutions of the legislator; customs and manners, those of the nation in general. The maxim itself has some truth in it: but the reason is good for nothing. For what act or what habit is it, that a law can be made against, and that might not be the act of the nation in general, were it not for the law? To understand what there is of truth in the maxim, and what are the true reasons of it, let us turn to his example: for without his examples, one should seldom know what to make of his rules.
Peter the Great made a law, obliging the Russians to cut off their beards, and wear their clothes short like Europeans; and to enforce it, he posted guards in the streets, to cut off the skirts of all such coats as should be found longer than the standard. The measure, says Montesquieu, was tyrannical: the change which he wanted to bring about, he should have effected, not by making a law, but by setting an example.
In the making of this law, his object was either to gratify his own taste merely, by putting the people into a dress he liked to see, instead of one he did not like to see; or it was to polish them, that is, to bring the national character as near as he could to the European, which he looked upon as better calculated to make them happy. The latter supposition is the more probable, as well as the more honourable; and it is that in which Montesquieu himself seems disposed to acquiesce. In the former supposition, the law being a coercive one, was improper; the punishment annexed to it, and the hardship produced by it, being groundless: and the law may well indeed be styled what Montesquieu styles it, tyrannical. On the other supposition, it was a measure of indirect legislation, levelled at all those mischievous points of behaviour, to which he imagined his subjects would be the less prone, were they to take the maxims of Europeans for their model. The proposed change being effected, he might then thus say to the people that were about him: Ye are Europeans: this is now a European country; see, every thing about you is European: look even at the common people; their countenances, their dresses are European: ye yourselves are European; behave yourselves, then, like Europeans: ye are European husbands; treat your wives, then, as European gentlemen treat theirs; ye are European landlords; treat your vassals, then as European gentlemen treat their tenants: ye are European gentlemen: think it, then, as great a disgrace for any of you to be seen drunk, as it is for an European gentleman: ye are European gentlemen; betake yourselves, then, to the profitable studies, the innocent and elegant amusements, of European gentlemen. Much more might he have added in the same strain.
Could he have effected the desired change of character, without effecting this change in dress? could he have effected the change in dress, merely by dressing himself as he wished to see his subjects dress, or by other means less coercive than this law? In either of these cases, the law and the hardship attendant upon it was not useless indeed, as Montesquieu calls it (inutile), but, however, needless. Was the benefit attendant upon the proposed change of manners, or rather of so much of that change as was owing solely to the change of dress, worth the purchasing at the expense of all that hardship? If not, the law was then unprofitable. Such is the slow and minute, but sure and satisfactory, method of estimating the tendency of a law upon the principle of utility.
In all such matters, the cautious statesman will avoid the tone of peremptoriness and decision: his conclusions will always, in the first instance, be hypothetical. If such and such events are the likeliest to take place: But are they? This is a matter which ought to be stated as accompanied with the degree of uncertainty that belongs to it. Beware of those who, by the vehemence of their assertions, by the confidence of their predictions, make up for the weakness of their reasons.
Whatever degree of advantage the law in question was calculated to produce, the price paid for that benefit must be acknowledged to have been a high one: the observances prescribed being constant and habitual, the idea of compulsion would be incessantly before their eyes; and this compulsion could not but appear tyrannical, as it would seem to be imposed, either for no reason at all, or for a reason which would seem worse than none.
The British parliament, in 1745, made a law to compel the Scottish Highlanders to lay aside their national costume. The design of this law was political: the people were strongly attached to this ensign of distinction, and regarded with contempt the inhabitants of the Low country, who had long since adopted the English dress.
The Pretender, by exhibiting himself among them, dressed in the ancient costume, had charmed these mountaineers; and they followed his standard in crowds. After the rebellion was quelled, it was wished that this national garb, which recalled old ideas, and served as the signal of a party, should disappear: but this act, which incessantly called up the idea of restraint, was unsuccessful, and only served to recall what it was desired should be forgotten. After half a century of experience, its inutility and danger have been perceived, and this tyrannical law has been repealed; and England has no soldiers more faithful or more intrepid than these mountaineers, whose energy would most probably have been destroyed, if their ancient customs had unfortunately been overcome by force.
The general result of these rules is, that the legislator, in producing great changes, ought to be calm, collected, and temperate in well-doing: he ought to fear to enkindle the passions, and to excite an opposition which may irritate even himself. If it is possible, he ought never to drive his enemies to despair; but, surrounding his labours with a triple rampart of confidence, enjoyment, and hope, to spare, to conciliate, to provide for all interests; indemnifying those that lose, and making an alliance, so to speak, with time, the true auxiliary of all useful changes, the chemist which amalgamates contraries, dissolves obstacles, and unites discordant parties. When he possesses real strength, it is not necessary that he should exert it, that it may be perceived: while it is only half discovered, he is sure of success: every one knows his own interest consists in joining as speedily as possible with the strongest party; and none will join in useless resistance, unless their self-love has been wounded.
* Dr Hunter used to relate the anecdote of a surgeon, who having to operate on a fractured hand, and having cut off four fingers, afterwards cut off the fifth, which was uninjured. Hunter asked his reason for so doing. “Because,” said he, “if this little finger had been left, it would have looked ridiculous.” This anecdote may serve as an apologue for many operators in legislation.
† Introduction to Morals and Legislation, ch. xii. [Consequences of a Mischievous Act.]
* Lettre a D’Alembert sur les Spectacles.
* Esprit des Lois.
We have seen the danger that attends the introduction of a large body of laws at once into any country, those laws being the best imaginable: we have seen the cautions which in the management of such a business require to be observed. The danger, and the caution which will be requisite in surmounting it, will of course be greater in proportion to the divergency of the laws in question from the line of perfection. But this is not all: the danger, in short, the mischief, for it is more than danger, is much greater than in that proportion where the new laws are such as are already in force in another nation.
Would you see the worth of any established body of law in its genuine colours, transplant it into a foreign clime: the vicious parts of it (that is, speaking of any system as yet in being, the great bulk of it,) no longer veiled by partiality, will display themselves in their genuine weakness and impropriety.
The people of every country are attached to their own laws; to those parts of them, at least, under which they have been bred, and to which they have been taught to pay an habitual acquiescence: if the people are not, the lawyers are, whose voice in a matter of this sort goes the greatest part of the way towards forming what appears to be the voice of the people: they were born under them; they have been used to them; they know no better: if they know but little of their own laws, they know nothing at all of any others: whatever benefit they derive from political society, they derive from them; and the benefits that are not to be had from them, are looked upon as unattainable: they are assiduously taught, and the people are ready enough to believe, that the oppressions they suffer from the same quarter are the price (and the necessary price) of those benefits. The patience of nations under the abuses which are the growth of their own country, and their impatience under whatever are imported from a foreign country, have their source in the same natural and unavoidable mixture of ignorance and prejudice: they will endure abuses they have been accustomed to, but they will not endure new ones: they will sit easy under the yoke of their own prejudices; but they will not sit easy under the prejudices of another people.
When a body of very imperfect laws, such as are the best of those of which the groundwork has been laid in barbarous ages, is imported in the lump from one country into another, it will be found that opposite judgments will be entertained of it by the two nations: the one will be disposed to think a great deal better of it; the other, if possible, a great deal worse of it, than it deserves.
To a man who has learnt by rote what the law in such or such a case happens to be, without considering why and for what reason it ought to be so; such is his regard for the whole together, such is his regard for every individual part, that abuses and defects the most flagrant, become equally sacred with institutions the most salutary and indispensable.
The constitutional branch of the law of England, taking it in its leading principles, would probably be found the best beyond comparison that has hitherto* made its appearance in the world; resting at no very great distance, perhaps, from the summit of perfection. Thus it stands at least in the opinion of judicious and impartial minds; which opinion will, I believe, appear the more just, the more it is considered; more particularly when considered with reference to the circumstances and situation of that favoured people, whose happiness it is to have stumbled upon so invaluable a possession. Between this part of the law, and some of the principles that govern the system of procedure, particularly in what concerns criminal matters, there is a pretty strict connection and dependence. The honour due to those parts, which however superior in importance, are in point of truth but as one out of a hundred, is extended by an easy process of the imagination (or rather of the affections) to the other ninety-nine. Examine it piece by piece, we should find it a vast bundle of inconsistencies; the wisdom of one page being constantly disgraced by the folly of the next. But this incongruity does not show itself to the distant and admiring multitude, against whose censure its very immensity, which is one of its greatest blemishes, forms a most effectual defence. Do you comprehend the whole of it? No: then pretend not to sit in judgment over any part of it. Such is the rebuke which the sage professor is ever ready to give to the uninstructed layman: such is the opiate which the uninitiated layman is ever ready to administer to himself.
This predilection, how effectually soever it may have veiled from the eyes of Englishmen the defects of English laws, while the dominion of those laws has been confined within the limits of the country which gave them birth, is not so strong, but that the experience of their effects, when transplanted into Bengal, has been able to overcome it: experience too fatal not to be severely felt, and too manifest to be dissembled, has demonstrated their inapitude. Those, however, who have seen the inapitude of this system, because they could not fail to see it, and who have cried out under it, because the burthen of it was become intolerable, complaining of it as unfit to be established there, have scarce ventured to go farther. Bad as they found the system there, they have not ventured to insinuate, scarcely, perhaps, have they so much as allowed themselves to suspect, that it is chargeable with any intrinsic defects, and that it was bad with reference to the country which gave it birth. The most striking feature, in the original polity of that distant country, is the despotism of its leading principles: the most striking feature in that of the English government, is the strictness of its procedure. Hence it seems to have been concluded, and that too hastily, that laws that are competent to a free country must for that reason be incompetent to an arbitrary one. From this observation, an hypothesis has been formed for reconciling the experienced incompetency of the English laws as applied to Bengal, with their supposed competency as applied to England. Laws which are fit for a free country (it has been said) are, for that very reason, unfit for a country where the government is arbitrary and despotical. That this observation is just, as applied to certain parts of the law, is not to be denied: but that it is applicable to the greater part of them, or even to more than a very small part, is what I am much disposed to question.
In opposition to these notions, I would venture to lay down the following propositions: 1st, That the English law is a great part of it of such a nature, as to be bad every where: 2d, But that it would not only be, but appear worse in Bengal than in England: 3d. That a system might be devised, which, while it would be better for Bengal, would also be better even for England.
To enable us to form a judgment as to the truth of these propositions, let us take a general, though rapid view of the English law, with a view to the following particulars:—
1. The manner in which it has taken its rise.
2. The nature and texture of it, as it stands at present in England.
3. The effects which it either promises to have, or has been found to have, in consequence of the attempts that have been made to introduce it into Bengal.
These several points cannot always be kept distinct in the mode of treating them; but it will be proper that the distinction there is between them should be constantly kept in view.
The English law, like every other body of law which has grown up together (as it were by accretion) without a plan, is distinguishable into statute and customary law. The statute law, framed with great attention to the circumstances, and for the most part with great regard to the welfare, of England, was framed without any regard to the interests, circumstances, or welfare of countries, the acquisition of which had never been foreseen. The customary, or, as it is called, the common law, in which accident, rather than design, has mixed up a few principles which are inestimable, has been made up with scarce any regard for the welfare of any country, even of that which has given it birth. To prove this (for a proof suited to the present purpose must be given in a few lines, or not at all,) I shall not dig into the dark ruins of remote antiquity, nor send my readers to wander among the discordant elements of British, Saxon, Danish, Norman, and German jurisprudence. A single trait is sometimes sufficient to mark with force and verity the character of an individual: the character of a body of laws may be learned from the general complexion of it. Let us interrogate the great oracle of British law, Sir Edward Coke. In the first volume of his Institutes, he has furnished us with a list of the topics or heads of argument, which, according to him, furnish the several grounds of decision, which are recognised in the courts of justice. They are twenty in number: of these, the principle of utility, the argumentum ab inconveniente, as he phrases it, it must be confessed, is one. But in what style is it introduced? It stands neither the first nor the last, nor in any post of honour: it is shuffled in, without distinction, towards the middle. To judge from this account, what is the chance, then, that the rule of law, on which the decision is grounded in any given instance, shall be of the number of those, in the framing of which the welfare of the people has been kept in view? To judge from this account, it should be as one to twenty. The farther we penetrate into the recesses of English law (taking utility for our guide,) the better shall we be convinced that the account given of it by this its warmest panegyrist, is not an unsuitable one; and that, for the greater part of it, it is a piece of cobweb work, spun out of fantastic conceits and verbal analogies, rather than a mass of substantial justice cast in the mould of reason.
That the assertion may not appear entirely gratuitous, let us run over a few of the most prominent points in the English law with a rapid pace, considering all along how far it answers what ought to be the purposes of its institution in England; and thence, or otherwise, how far it is likely to answer the like purposes in Bengal. I shall say nothing here of the numerous defects and inconsistencies of the penal branch of the law; of the want of symmetry that prevails throughout the whole; of the absolute want of names for so many extensive and important heads of delinquency; of the total want of authoritative definitions for the few offences that have a name; of the multitude of crying injuries which are left without redress; of the impunity of so many mischievous practices, and the unmerited punishment annexed to so many acts, of which the mischief is light or undiscernible: of the utter want of plan in the adjustment of punishment to offences; of the neglect of every rule of proportion; of the want of variety and appositeness in the species of punishment that are employed; of the lavish and unnecessary use that is made of the invariable, unequable, incommensurable, uncharacteristic, unfrugal, unpopular, uncompensatory, irremissible punishment of death; the total want of method and comprehension in the very imperfect attention that is paid to the several grounds of justification, aggravation, extenuation, and exemption; the want of fixed and settled principles for ascertaining the quantity and quality of the compensation, or other satisfaction which the several sorts of injuries have a claim to. These details would lead me into too wide a field for the present purpose; and what is more, these are defects of which the ruder penal systems, already established in Bengal, would probably be found to possess a still more ample share. The points I would rather choose for examples are those in which the inaptitude of the English law must appear the more striking; inasmuch as the practice of the Asiatic courts, in relation to those points, is, or for any thing that hinders may be, less unconformable to the rules of reason. A few of these points I shall now run over; keeping the outlines of the method I have pitched upon in view, but without imposing on myself the duty of touching upon every head, or of making out the connection between one head and another. The defects I shall have occasion to bring to view will be found to arise from various causes: sometimes from the deformities which grew up with the law in its cradle; sometimes from the additional deformities which have been produced in it by the circumstances which have happened to accompany its migration.
It has been said that Christianity is part and parcel of the common law of England; and, under the authority of this dictum, those who have dared freely to examine the evidences of Christianity, and when unconvinced by them to express their opinions, have been punished: transferred to Bengal, this law would lay the foundation for the persecution of all the Mahometan and Hindoo population.
Such is the excellency of the English laws, say its panegyrists, “that there is no right but has its remedy:” the opposite conclusion is, that where there is no remedy, there is no right; and upon this principle the English common law constantly acts with regard to every thing but land. Are you an antiquary? Your Otho may be stolen from you, and you can only recover the value of the copper. Are you a connoisseur? You may lose your Raphael, and be paid for the canvas and the colour by the yard. Are you a lover? The miniature of your mistress may be snatched from you by a rival, and you only receive for it the price that would be paid by a broker. This is bad enough in England, where we are accustomed to it: transplanted to Bengal, the evil would of course be increased.
Under English law, the greater the injury done to you, the less chance have you of reparation: if you adversary injure you slightly, you may compel him to make you amends by damages: if he kill you, his purse is saved, at least from making compensation to your family.*
If, then, you have any purpose of revenge or avarice to answer by keeping a man in confinement, do so; but let the place be unhealthy, and keep him there till his death: the law will not allow his family to touch your fortune in this case; only let his death be slow.
Transplanted to an Asiatic climate, what scope does such a law afford to the exercise of Asiatic ingenuity! The days, how broiling! the nights, how damp! the peons, how obedient! the cutcheries, how close! the marshes, of the Ganges, how conveniently pestilential!
“The more atrocious the crime, the more remediless the party injured.” Take a lawyer unawares; propose this maxim to him on a sudden, and ask him whether he ever heard of any thing so obviously unjust: he will probably answer, without hesitation, in the negative. A maxim like this, he would perhaps tell you, could have obtained no where but in a nation of idiots; was fit only for that imaginary scene depictured for the amusement of children, in which the pig is roasting the cook, and the thief hanging the judge: yet to this maxim a real and very extensive regard is paid by the law of England. If a man give you a black eye, you may make him pay for it; but if he put out your eye, you get nothing, and whatever is taken from him goes nominally to the king: really to John Stokes or Jack Nokes, who has no concern at all in the matter. If a man kill your pig, you get the value of it; but if he kill your wife or your child, you get nothing: if any thing is got out of him, it goes to a stranger as before. A man sets your house on fire: if by misfortune, you receive amends; if through malice, you receive nothing.
Lawyers have been found to defend this: for, say they, “So long as satisfaction is made, what signifies who gets it?” To know whether they are sincere, pass a law, that whosoever owes any thing to these reasoners, shall pay it to the king.
The Mahometan law, bad as it is, is at least unsullied by this abomination. It inclines, in certain cases, towards the opposite extreme; substituting satisfaction to punishment, instead of superadding it.
In a country where there is no king, who is to get the forfeiture? This would make a curious question, as lawyers feelingly call it, wherever the legislator has left the print of his improvidence. Had the death of Lord Pigot been deemed murder, the forfeitures of the delinquent council would have afforded noble pickings for the gentlemen of the long robe, a rich bone of technical contention. What became of the spoils of the Bramin Nundocomar, whom the English judges hanged, on pretence that a set of men in London had made forgery a felony, without benefit of Braminship?
The standing principle of the good old common law is, that the king is every thing. Is a criminal to be punished? it is because he has broken the king’s peace. Is civil justice to be administered? it is that the ears of Majesty may find rest. But in Bengal there is no king; to be consistent, there ought to be no offences: at any rate, no efficient means of punishing the high officers of government are provided there.
If that country has hitherto escaped absolute destruction; if the lust of power, and the thirst of riches, have hitherto been kept within any tolerable bounds; we must attribute it to the force of the moral, not to that of the political sanction; to manners, and not to laws.
If we regard the character of the different tribunals in England, and refer to their origin, we shall find that the present jurisdictions have been obtained by encroachments upon one another: but the result of the method in which their powers have been obtained has been, that the whole system of procedure has been built upon the foundation of fiction, and is full of formalities, delays, embarrassments, and expense; of which it is impossible, in the course of a chapter, to give the details. The character of the English judges has, in general, been above all suspicion and reproach; but the course of procedure has been far from possessing that clearness, brevity, and economy, which it ought to have.
What, then, must have been the sensations of the poor Hindoo, when forced to submit to all these wanton and ridiculous vexations? Unable to attribute to an European mind the folly adequate to the production of such a mass of nonsense and of gibberish, he must have found himself compelled to ascribe it to a less pardonable cause; to a deliberate plan for forcing him to deliver himself up, without reserve, into the hands of the European professional blood-suckers, carrying on the traffic of injustice under the cloak of law.
The most remarkable circumstance connected with these absurdities in English procedure is, that the judges are aware of the evils, and every now and then act upon a different system; but where the English judge acts rightly, once in a hundred times, the Cawzee and the Bramin were in the habit of acting rightly every day.
But not only were the English common-law courts introduced into Hindostan with all their fictions; they were plagued also with a court of chancery, with its interminable delays.
You are the father of a family: you call on me and say, Two of my children have a dispute about a plaything: each of them claims it as his own: advise me, then, what shall I do to settle the matter between them? what shall I do to come at the truth? I look grave, and answer you as follows: I fear, indeed, there is something wrong on one side, or the other; I am afraid that one or other of them does not speak truth: falsehood should not be permitted to gain its ends. If I were in your place, I would endeavour to sift the matter to the bottom: I will tell you, then, how you shall manage. You must not think of sending for either of them and examining him unawares, nor of bringing them face to face; so far from it, should either of them happen to come into the room where you are, of his own accord, you must take care and not say a syllable to him about the matter. I’ll tell you what you must do: let your youngest son tell his story upon paper, putting what questions to his brother he thinks proper: give the other boy a reasonable time to contrive his answer; first six weeks, then a month, then three weeks, then a fortnight. If his answer should be evasive, then go on the same course with him again: perhaps the youngest may, by this time, think of some questions which he omitted to put the first time; or a fresh string of questions may be made requisite by the answers to the first: this will make another string of adjournments necessary. Meantime, the eldest perhaps will be for telling his story, and putting his questions in return: by this means, the time for deliberation will be doubled. When affairs are come to this pass, you may either read what they have written yourself, or you may desire their uncle to inquire of the people of the family, whether any body heard any thing of what passed, taking care not to speak to either of the boys themselves: when their uncle has told you what he has learnt, then the matter will be ripe for your decision. By this time, twice as much as the money in dispute will have been spent in pens and paper: all memory of what passed at the time when the dispute arose will be at an end: your children will have become skilled in the evils of falsehood and evasion: the time of the servants will have been taken up in carrying letters and messages backwards and forwards: your own time will have been wasted in poring over all this idle scrawl: a fixed enmity will have taken root between your children: your relations and servants will have taken their parts on one side, or on the other; and thus the truth will be fully brought to light, and the whole family will enjoy uninterrupted peace and harmony. After I had made my speech, would not you think me in a delirium? From the beginning to the end, would you think there was the least particle of common sense? This, however, is, without the least sophistication, the exact progress of what is called a suit in equity: a suit which, unless justice were denied,* might be brought for a pecuniary demand as trifling as that which has been here supposed. When I say exact, I mean, as far as it goes; but according to a very simple pattern, stripped of a thousand incidents, by fewer or more of which a suit can scarcely fail to be diversified. Not a syllable here of pleas, replications, demurrers, bills of interpleader, bills of revivor, exceptions to reports, rehearings, motions, and the like. In the patriarchal government, no type could be found of mysteries like these. I know very well, that a state is larger than a family: I know very well, that a judge is not to be expected to feel the same impartial tenderness for suitors, as a father for his children: but it lies upon those who think they can defend the current practice, to show why the same methods which are sure to defeat the purposes of justice in the one case, are necessary to effect them in the other.
And who would think it? This mass of absurdity is the work of modern refinement, not of ancient barbarism. The times are clearly marked in history when an English judge had it in his power to do justice. It was then thought no more a hardship to compel a man to attend to his own concerns, than to attend to the concerns of other people. Each party was ready to relate and to answer, to examine and be examined, in the presence of the judge. Advocates there were a few: attornies there were none. Not a farthing of expense upon either party, till it was seen which of them had deserved it: if the one had complained without cause, he was fined for his vexatiousness; if the other had contested the claim without reason, he was fined for his litigiousness. Why, then, were these simple and pure forms abandoned? why were they not re-established, when new tribunals were instituted in another country, instead of transferring this system of possible equity and certain misery to Bengal?
* Written 1782.
* Few men, I suppose, can have lived many years in the world, without meeting with various instances in which iniquity has triumphed under cover of this law: but in general, as there is no redress to be had, the injury is seldom publicly proved, and the public hears little of the matter. When there is a matter of honest difference in the way of trade, the law does not leave the representatives irresponsible, nor the suffering party without redress. It is only when the suffering is occasioned by villany, that it manifests this indifference.
* In fact, where the demand does not exceed ten pounds, this species of justice is denied; and that openly and without shame: ask a man of equity for what reason? his answer is, “de minimis non curat lex,” the subsistence of a family for half a year is not worth caring about.
We now come to speak of the influence of time on the expediency of a law, or set of laws. The question on this head divides itself into two: the laws that are the best possible for a given place, at the time present being found; would the same laws, had they happened to be found in time past, have been the best possible for that time past? and the like, with relation to the time future. This, we see, when considered with a view to any direct influence it can have, is a mere question of speculation: nobody can transfer our present laws to time past; we cannot transfer them to time future. Nevertheless, as a right way of thinking on this head may contribute, perhaps, in a manner more or less remote, to guard us against mistakes in practice, a few words on this head may not be altogether thrown away.
Time, as we have already had occasion to observe, is nothing of itself. To learn what influence, it possesses, we must inquire, what influence may be exercised by those causes of a superior order into which that influence is resolvable. In regard to causes purely physical, the field of variation, at least as to any correspondent variation of influence, cannot be very considerable: as to the nature of the soil, lands once marshy may be drained; lands once dry may be overflowed; rivers, which formerly flowed into the sea, may, in very particular situations, be intercepted and dissipated in their course; from lakes, communication may be opened to the sea; peninsulas may, by nature or by industry, be converted into islands; and continents may be intersected, in various directions, by canals. The higher parts of mountains may crumble down by their own weight, or be washed down by rivers: at the mouths of rivers, islands may be formed, or the continents lengthened out by deposition in the sea. Volcanoes, when constant, may tend to reduce mountains to a level; when occasional, they may raise plains into hills, sink beds in them for lakes, or throw up islands in the sea. Ports may be deserted, or new ones hollowed out by the caprices of the ocean. All these alterations may give occasion for correspondent changes, in regard to the individual places that are the objects of certain laws; principally those laws to which semi-public offences, offences against the public force, offences against the public wealth, respectively owe their birth. But the general nature of those offences, and the general nature of those laws, will be still the same; and, at any rate, whatever modifications on this head are made requisite by time, will be such, and such only, as are made requisite by place.
It is the same thing with regard to climate, and those peculiarities in respect of animal and vegetable produce, which are the consequences, partly of this circumstance and partly of the former. Partly by means of cultivation, and partly by other causes, of which the operation is less known, the quantity of sensible heat diffused over the surface of the earth appears to have a tendency, by slow degrees, to verge towards an equilibrium: hot climates become, perhaps, a little cooler; more certainly, cold climates become a little warmer. The productions of one country are, in course of time, transplanted to another: and the course of cultivation may, in consequence, be changed; but if any change is in consequence required in the laws, it arises from the blindness or indolence of the legislator of former times. If, in his enactments, he have employed specific terms, he must alter and add to them: but if he have employed generic terms, it is the nature of these to open up and let in the specific ones, as fast as they are formed.
So far, then, as the texture of the soil and the nature of its productions are concerned, a succession of time may give occasion to a demand for some of the alterations to which a change of place may give occasion: but this change will not extend to those variations, which are consequences of climate, in the moral qualities of men. The changes which time may bring on in respect of heat and cold, will never be considerable enough to give to one zone the temperature of another.
It seems to be a common notion, that those laws, which are the best with reference to the circumstances of a civilized nation, would not have been so with reference to the circumstances of a rude and ignorant nation: on the contrary, that rude nations must have rude and simple, that is, imperfect laws: I mean, not only that in point of fact the laws of a rude nation will have been rude, but that in point of expediency it was proper they should be so. The former of these propositions is undeniable: the latter, I deny. Let us examine the time past, and look forward to the future.
On this occasion, we must once more bring to view the distinction between matters of fact and the matter of right, or rather of expediency; between what has taken place, and what ought to have taken place. That in rude ages the tenor of the laws has always been very different from what would be the standard of perfection for the present age, is not to be disputed. That it could not but have been so without a miracle, is also pretty clear. But were the imperfect laws which obtained then, better for that time than the most perfect which we can imagine now would have been for the same time? The affirmative is what seems to have been insinuated, but, as it should seem, without sufficient cause.
There are two classes of people, from whom this notion seems to have gained countenance: the one consisting of those who, from indolence or timidity, or less pardonable motives, have found it convenient to set their faces against every proposal that savours of improvement or reformation. To people of this description, it must have seemed the happiest contrivance imaginable, if from the very excellence of a system of laws they could raise an argument, and that a conclusive one, against its fitness. Such an argument, when sifted to the bottom, will indeed be found to be a contradiction in terms: but how few are they by whom such arguments can be sifted to the bottom? If they can get such an argument to apply to the laws of past times, the next step is to transfer it to the present. Get such an argument to pass muster in the first case, in which there is but little reason in it, and perhaps you may get it received in the other case, in which there is no reason in it at all.
The other class of people are those who have a system to defend, which, without some such expedient, would be indefensible. This is the case with the votaries of all those absurd and false religions which have descended into the details of legislation. Viewed by the light of polished reason, the defects of our code are too glaring to be dissembled. Say, then, that from causes peculiar to that age, it could not have been better. That to invest it with the authority of law in present times, would appear to be a measure equally ridiculous and destructive in any country, in which the defects of it are not veiled by the thickest prejudice, is not to be denied. That this pretended emanation of divine wisdom would be found worse than the worst of those systems of law which are in force in polished nations, is scarcely to be disputed with any prospect of success. What is to be done? There is but one thing; which is, to take the blame off the shoulders of the legislator, and lay it upon the people. Say they were stupid, stubborn, prejudiced, intractable: this will put you at your ease. You may then acknowledge, and acknowledge with safety, that in a certain sense the laws were bad; and this will entitle you to maintain, that in another sense they are good: they were bad in theory, but they were good, the best possible, in practice: they were bad in appearance, but they were the best possible in effect.
The plea is plausible enough while it keeps to generals; and as there is no other, it must be made the most of. Distress of argument forced it from minds engrossed by prejudice; and it may pass, as any thing else would pass, upon those who are prejudiced the same way. But come to particulars, the illusion vanishes. Take what nation you will; give them what character you please: where could have been the advantage that injuries should have been left without redress; that men should be teazed and perplexed by a chain of minute and frivolous obligations; that punishments, perhaps of the severest kind, should be heaped on them for acts from which no mischievous consequences can be traced; that when the act, which is forbidden, happens to be of the number of those that are pernicious, no account should be taken of the various grounds of justification, aggravation, extenuation, and exemption, which are pertinent to the case; that punishments should be inflicted without measure and without choice; that no enumeration should be given of the grounds of right, nor any complete set of principles established for the decision of claims to property; that the business of judicial procedure should be abandoned to arbitrary discretion; and that, where power of any other sort is given, no care should be taken to shape it to its end, by the necessary apparatus of obligations, qualifications, and exceptions?
If there be any ground for denying the truth of the position, that the laws which are the best for a civilized, would have also been the best for a rude age in any case, it is in the case of that part of the law which concerns punishments, and that part of it which concerns the laws in principium. In a very rude age, it is possible that punishments, in point of quantity, might require to be somewhat greater than it is necessary they should be in a civilized one. In a rude age, the religious sanction has commonly given but little assistance to the political: the force of the former, though much greater in a rude than a civilized age, being diverted into other channels; hence one reason why the quantum of punishment provided by the political sanction may require to be somewhat greater in the former period than in the latter. In a rude age, the moral sanction has less force than in a civilized one: hence another reason for adding something to the magnitude of the punishment provided by the political sanction. In a rude period of society, the people are not yet broken in to the habit of spontaneously lending their assistance to the laws: hence a third reason. The differences, however, that may be occasioned by these circumstances, can at the utmost be but very slight; especially if the maxim laid down in a former chapter be true, that even in a civilized age the whole complement of punishment that is judged necessary, must be taken from the political sanction, and that the auxiliary sanctions alone cannot safely be depended upon for any part of it.
If an intelligent Mahometan be to be found, press him upon the absurdity of the laws of Mahomet; drive him to his last shift: he will say, “True: considered with regard to their application to the purposes of the present life, they are indeed not altogether what they might have been, if made now: but consider the time, consider the state of the people, the state of knowledge at that time. Such laws as a man might make now would not have been understood: they were excellent for the time; they were excellent for the people: better laws than those, the people would never have received. Such laws as a man might make now, either could not then have been expressed, or would not have been understood.”
To this argument there is a short answer: the words that Mahomet made use of we know: to those words the same ideas, or ideas that were the same to all material purposes, were annexed then, that are annexed now; so at least we must suppose, in as far as we pretend to understand them. Give me the words of the Koran; give me the ideas that belong to them; I ask no more: out of them, and them alone, I undertake to produce you a code, which shall contain a hundred times the useful matter there is in that, without any of those absurdities, the existence of which, upon comparison made with the ideas of utility we have at present, you cannot but acknowledge.
But, better laws, though they could have been written at that time, and would have been understood, would not have been received; for the people were an ignorant, prejudiced, and headstrong people. This argument may also be demolished without much difficulty.
Ignorant, prejudiced, and stubborn as they were, did not your prophet tear from them their dearest, their most sacred prejudices? Were they not polytheists, and did he not make them unitarians? Did he not search out with the severest diligence the crimes and vicious propensities they were most addicted to? Throughout the whole of his system and of his proceedings, is any want of firmness, any of audacity, discernible? If not, there is but one want, to which the imperfection of his system can any longer be attributed, the want of wisdom; the want of wisdom on the part of a man, who, you say, was taught by God himself; the want of a share of wisdom equal to what may be found at present in a man of the most ordinary level.
My people will not endure even the most necessary restraints; I have therefore laid them under a vast multitude that are of no use. Such logic may pass upon some minds; but they must first of all have been prepared by a pretty ample dose of prejudices.
The energy of character necessary to enable a man to lead mankind, to influence as well the intellectual faculties as the affections; the character to which we have given the name of enthusiasm, is made up of a determined active courage, and a rambling imagination. No coward, no man even of selfish prudence, was ever a founder of a new system of legislation. Nemo unquam vir magnus sine aliquo afflatu divino fuit, says Cicero: the plain truth of this, as far as it is true, is, that the energy of the head, in the degree in which it is necessary to constitute a legislator, I mean always an enterprising innovating legislator, is always accompanied with a more than common degree of energy in the heart.
It is not to considerations of personal prudence that the imperfections of the laws of Mahomet must be attributed: he attempted every thing that his genius had discovered. The defects in his work arose from want of knowledge: if he had known better, he would have done better. This conclusion, if true, completely overturns the foundations of the Mahometan religion: hence he has neglected nothing that could enable him to elude it; and the universal ignorance of its professors is partly the result of the contrivance of the legislator to prevent the detection of his imposture.
It is a saying attributed to Solon, that the laws he had given to the Athenians were not such as were the best in themselves, but the best they were capable of receiving. In this there was doubtless somewhat of truth, especially when applied to that turbulent and jealous people; and the saying would hold good, in the greatest degree, in regard to the constitutional branch of their laws; but that it was strictly true, one may venture without much hesitation to deny.
There could not have been a more convenient maxim for saving the credit of a legislator; and those who have had a legislator to defend, have not failed to make the most of it. But there are few maxims, perhaps, that have been carried so much beyond the mark: and it has been frequently cited in cases where it has not only been erroneous in itself, but not altogether innocent in its consequences.
Whatever Athenian arrogance may pretend, it will not easily gain credit with a discerning mind, that at so early a period of society the best of all possible laws should have presented themselves to view. It will not be believed, that among a people whose character disqualified them from receiving any better laws than those which Solon gave them, there should have existed a man, who in his own mind had carried that most difficult of sciences to so high a pitch of perfection, that it will never be possible for any other man to carry it higher.
This sort of apology, what degree of truth soever there may have been in it, in the instance in which it has been made, has since been much abused; and it has been employed to gain a reputation of wisdom and expediency for many a mischievous and many a foolish law. The law, such as it is, lies before you; yet foolish as you may think it, the lawgiver may, for aught that you know, have been the wisest of mankind. But such as the author is, such are his works. Since, then, the lawgiver is wise, the law itself may perhaps be a wise one too, how foolish soever it may appear to you: it may have had its use, though you and I don’t see it. Let the law, then, stay where it is; to abolish it, is dangerous: a mischief may ensue, which we are not able to foresee. Such is the circle in which many a man who, insensible to the force of truth, has nothing to guide him but the prejudice he has conceived in favour of antiquity, scruples not to run. If any one has a mind to see how far the legislator was entitled to the benefit of this plea, let him consider in what channel the prejudices of the people are likely to have run, and in what points they are likely to have imposed a coercion upon the legislator. It is natural enough they should have opposed any important violent change he might have been inclined to make in the article of religion; and yet we have seen religions overthrown by the legislator, and others set up in their stead. It is natural enough they should oppose the investing men with new powers, or making a new distribution of the old; and yet in this way, too, we have seen great changes made by legislators, with little or no opposition on the part of the people. It is natural enough they should oppose any wishes he might form, or might be suspected to entertain, of subjecting them to new and irksome restraints or obligations; although among the most necessary restraints and obligations, we shall find some of the most irksome. But a supposition, that is not by any means a natural one, is, that by dint of menaces and clamour they should have forced him to fetter their own freedom, by a heap of idle, trifling, and ridiculous obligations and restraints. When a code, amidst all its redundancies, is defective, and regulations of the most obvious use and necessity are looked for in it in vain, it is not a mere ipse dixit that will warrant us to give credit for utility to institutions, in which not the least trace of utility is discernible.
Before a period be put to this chapter, it may naturally be expected that some notice should be taken of the immutability, which many have been so fond of attributing to certain laws, or pretended laws; as also of the much-talked-of distinction between mala in se and mala prohibita, with reference to actions; a distinction which seems analogous to the former.
How mighty in every branch of science, and in the moral branch in particular, how mighty and how universal is the force of words! How many questions, even of those of which one would least expect it, would, if examined with attention, be found to turn upon nothing else! Who would have thought it? Even the question concerning the immutability of certain laws, is of the number! The same act which ought to be forbidden in one age and country, ought it to be forbidden in every other? Yes, and No: yes, if, in pronouncing the word act, we have in view a large and general class of acts: no, if a narrow and particular one. The plain truth of the matter is this: there are certain acts which admit of laws, which, if worded in a certain manner, may stand good, and be equally applicable to all places and times; while there are other acts for which no such laws can be devised. Under the former predicament come those acts, of which the name is included in a single word; such as murder, theft, adultery, perjury, and the like. Let no one commit murder; let no one commit theft; let no one commit adultery; let no one commit perjury; and so on. Upon this plan, we might make a variety of laws, of which the expediency might without impropriety be termed universal and immutable.
But laws, while the expression of them is confined to terms so loose and so extensive, will never be found precise and clear enough for use. The act thus vaguely described must, before it can be thoroughly understood and perfectly distinguished, be broken down into species: the law relating to it must, accordingly, be broken down into a multitude of laws: the phrase, pure as it stands now, must be transformed into others, in which provisions of an expository, limitative, or exceptive nature, will be necessary. Now, among these qualifying provisions, will in every case be some, the effect of which is to except out of the general prohibition certain cases, in which the act is either commanded or allowed by some other branch of the code of law. Now, of these qualifying provisions, some, it will be found, ought, in point of expediency, to be different in one country from what they are in another; different in the same country at one time from what they are at another: and this is the secret history of the universality and immutability of these universal and immutable laws.
The notion concerning the essential distinction between mala in se, and mala prohibita, is a sort of counterpart and consequence of the former. Mala in se are the offences that are forbidden by the laws that are immutable: mala prohibita, such as are prohibited by laws that are not immutable.
The common notion of this distinction (as far as a distinction which has no clearness in it is capable of an explanation) seems to be this. Mala in se, which I suppose is put instead of mala per se, are acts which are evil of themselves; that is, although there be no political law by which they stand prohibited: mala prohibita are such acts as are indeed evil, but would not have been so, had it not been for the law by which they stand prohibited.
The foundation of this distinction is none of the clearest: but to throw some little matter of light upon all this darkness, the following observations may be of use:—
If any act can with propriety be termed pernicious, it must be so in virtue of some events which are its consequences: this has been clearly shown already; therefore no act can, strictly speaking, be mala in se, in itself pernicious; nor even of, or by itself, any farther than the words of or by may be understood to exclude the influence of certain laws. Now, then, as to mala prohibita. Why is it that any act is prohibited, if prohibited with good cause? Because the events, which are its consequences, are pernicious, if the law is a good one. The distinction between mala in se and mala prohibita, therefore, appears but verbal. If the consequences are otherwise than pernicious, the law, and whatever punishment it is sanctioned by, are groundless, and thence improper.
Again, the distinction pretends to suppose abstraction to be made of subsisting political laws; but, in truth, no such abstraction is ever made. The cases in which the taking the goods of another is theft, depend upon the laws; and a similar observation may be made with regard to other acts, considered as mala in se: even killing becomes murder, only in the absence of any ground of extenuation or justification allowed by the law. On the other hand, the evil of acts termed mala prohibita, does not arise from the prohibitory law itself, but is the result of that cluster of laws, by which the negative or positive act, directed to be done or omitted, is applied to beneficial purpose.
The evil, however, of an act which becomes mischievous, in consequence of the establishment of certain laws, is not less real than that of an act mala in se. The evil of such an act may, indeed, far exceed the evil even of an act of murder. Let such an act be the non-payment of taxes: let the deficiency rise to a certain amount: an enemy breaks in, and among the consequences of the irruption are many thousand homicides, which, if they have not the name, have the effect of murder.
Were I to choose to what I would (most truly and readily) attribute these magnificent prerogatives of universality and immutability, it should rather be to certain grounds of law, than to the laws themselves: to the principles upon which they should be founded: to the subordinate reasons deducible from those principles, and to the best plan upon which they can be put together: to the considerations by which it is expedient the legislator should suffer himself to be governed, rather than to any laws which it is expedient he should make for the government of those who stand committed to his care.
On this ground, then, a man engaged in a design like that which is the object of this work, might lay claim to the attributes of universality and eternity for the rectitude of his doctrines, with as little arrogance as he could claim for them the most confined and temporary expediency, provided that in the execution of his plan, he has boldness and strength of mind enough to set apart all along whatsoever is peculiar to particular times and places, and to raise his contemplation to that elevated point from which the whole map of human interests and situations lies expanded to his view.
The rules concerning the cases that are respectively meet and unmeet for punishment and for reward; the rules concerning the proportion proper to be observed between offences and punishments, between acts of merit and reward; the rules concerning the properties to be wished for in a lot of punishment and reward; the principles on which the division of offences has its foundation; the principles on which the various methods of attacking offences by indirect or far-fetched means: all these, if they are just and proper now, would at any time have been so, and will be so every where, and to the end of time. They will hold good, so long as pleasure is pleasure, and pain is pain; so long as steel wounds, fire burns, water seeks a level, bread nourishes, inanition destroys; so long as the tooth of the slanderer keeps its venom; so long as difference of sex attracts; so long as neighbour needs the help of neighbour; so long as men derive credit or fortune from their ancestors, or feel an affection for their children.
The author of a work entitled “Public Happiness,” has maintained that the condition of man has gone on progressively ameliorating from the commencement of time; and Dr. Priestley has expressed his expectation that man will ultimately attain a degree of happiness and knowledge which far surpasses our present conceptions. These glorious expectations remind us of the golden age of poetry: they have, however, this advantage; the happiness of which they speak is to come, and we are not discouraged by vain regrets for what is past.
We may hope, then, that in future time improvements will be made, among other things, in the practice of legislation. But we must only consider that the laws have reached the maximum of their perfection, and that men have obtained the maximum of their happiness, inasmuch as it depends upon the laws, when great crimes shall be known only by the laws which prohibit them: when the catalogue of prohibited acts shall no longer contain actions the evil of which is imaginary: when the rights and duties of the different classes of men shall be so well defined in the civil code, that there shall be no suits arising upon points of law: when the system of procedure shall be so simplified, that the disputes which from time to time may arise upon questions of fact, shall be terminated without any other expense or delay than is absolutely necessary: when the courts of justice, though always open, shall be rarely resorted to: when nations, having laid aside their arms and disbanded their armies by mutual agreement, and not from mutual weakness, shall only pay almost imperceptible taxes: when commerce shall be free, so that what may be done by many, shall not be restricted exclusively to a small number; and when oppressive taxes, prohibitions, and bounties, shall not prevent its natural development: when perfect liberty shall be allowed to those branches of trade which require liberty, and positive encouragements shall be granted to those which require it: when, from the perfection of constitutional law, the rights and duties of public officers shall have been so well distributed, and the dispositions of the people to submit and to resist so well tempered, that the prosperity resulting from the preceding causes shall be beyond the danger of revolutions: and, in conclusion, when the law, which should be the rule of human actions, shall be concise, intelligible, without ambiguity, and in the hands of every one.
But to what will the happiness arising from all this amount? It may be described as the absence of a certain quantity of evil. It will arise from the absence of a part of the different evils to which human nature is subject. The increase of happiness which will hence result, is doubtless sufficiently great to excite the zeal of all virtuous minds in this career of perfection which is open to us; but there is nothing in it unknown or mysterious, and which cannot be perfectly understood.
Every thing beyond this is chimerical. Perfect happiness belongs to the imaginary regions of philosophy, and must be classed with the universal elixir and the philosopher’s stone. In the age of greatest perfection, fire will burn, tempests will rage, man will be subject to infirmity, to accidents, and to death. It may be possible to diminish the influence of, but not to destroy, the sad and mischievous passions. The unequal gifts of nature and of fortune will always create jealousies: there will always be opposition of interests; and, consequently, rivalries and hatred. Pleasures will be purchased by pains; enjoyments by privations. Painful labour, daily subjection, a condition nearly allied to indigence, will always be the lot of numbers. Among the higher as well as the lower classes, there will be desires which cannot be satisfied; inclinations which must be subdued: reciprocal security can only be established by the forcible renunciation by each one, of every thing which might wound the legitimate rights of others. If we suppose, therefore, the most reasonable laws, constraint will be their basis: but the most salutary constraint in its distant effect is always an evil, is always painful in its immediate operation.
The limits of perfectibility are not so easily assigned in some other points; it is not possible to say precisely how far the human mind may go in the regions of poetry, in the different branches of literature, in the fine arts, as painting, music, &c. It is, however, probable that the sources of novelty will be exhausted; and that, if the instruments of pleasure become more exquisite, taste will become proportionably severe.
This faithful picture, the result of facts, is more worthy of regard than the deceptive exaggerations which excite our hopes for a moment, and then precipitate us into discouragement, as if we had deceived ourselves in hoping for happiness. Let us seek only for what is attainable: it presents a career sufficiently vast for genius; sufficiently difficult for the exercise of the greatest virtues. We shall never make this world the abode of perfect happiness: when we shall have accomplished all that can be done, this paradise will yet be, according to the Asiatic idea, only a garden; but this garden will be a most delightful abode, compared with the savage forest in which men have so long wandered.
This discussion has been necessary in order to show, that scarcely at present have just ideas been formed of perfection in matters of government. Until the grand principle of utility had been exhibited; until it had been separated from the two false principles with which it had been unceasingly confounded; until, by the aid of this principle, the end to be pursued, and the means to be employed, had been recognised; until, so to speak, all the legislative apparatus had been provided, and all the fundamental truths had been arranged, it was impossible to form any precise notion of a perfect system of legislation. But if at length these different objects have been accomplished, the idea of its perfection is no longer a chimera: it is, so to speak, presented to him who knows how to appreciate it: he may trace the whole of its horizon; and though no one now living may be permitted to enter into this land of promise, yet he who shall contemplate it in its vastness and its beauty may rejoice, as did Moses, when on the verge of the desert, from the mountain top, he saw the length and the breadth of that good land into which he was not permitted to enter and take possession.
This web edition published by:
The University of Adelaide Library
University of Adelaide
South Australia 5005
Last updated Sunday, March 27, 2016 at 11:51