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586

BENTHAM

HIS SYSTEM ALREADY FAMILIAR,

lables in the decalogue, would be to theology. The greater number of Mr. Bentham's distinctions, however are liable to objection, because they state, under an intricate and technical arrangement, those facts and circumstances only that are necessarily familiar to all mankind, and cannot possibly be forgotten on any occasion where it is of importance to remember them. If bad laws have been enacted, it certainly is not from having forgotten that the good of society is the ultimate object of all law, or that it is absurd to repress one evil by the creation of a greater. Legislators have often bewildered themselves in the choice of means; but they have never so grossly mistaken the ends of their institution, as to need to be reminded of these obvious and elementary truths.

If there be any part of Mr. Bentham's classification that might be supposed to assist us in appreciating the comparative value of pleasures and pains, it must certainly be his enumeration of the circumstances that affect the sensibility of individuals. Even if this table were to fulfil all that it promises, however, it would still leave the system fundamently deficient, as it does not enable us to compare the relative amount of any two pleasures or pains, to individuals in the same circumstances. In its particular application, however, it is truly no less defective ; for though we are told that temperament, intelligence, &c., should vary the degree of punishment or reward, we are not told to what extent, or in what proportions, it should be varied by these circumstances. Till this be done, however, it is evident that the elements of Mr. Bentham's moral arithmetic have no determinate value; and that it would be perfectly impossible to work any practical problem in legislation by the help of them. It is scarcely necessary to add, that even if this were accomplished, and the cognizance of all these particulars distinctly enjoined by the law, the only effect would be, to introduce a puerile and fantastic complexity into our systems of jurisprudence, and to encumber judicial procedure with a multitude of frivolous or impracticable observances. The circumstances, in consi

IN ITS APPLICATION DEFECTIVE.

587

deration of which Mr. Bentham would have the laws vary the punishment, are so numerous and so indefinite, that it would require a vast deal more labour to ascertain their existence in any particular case, than to establish the principal offence. The first is Temperament; and in a case of flogging, we suppose Mr. Bentham would remit a few lashes to a sanguine and irritable delinquent, and lay a few additional stripes on a phlegmatic or pituitous one.

But how is the temperament to be given in evidence ? or are the judges to aggravate or alleviate a punishment upon a mere inspection of the prisoner's complexion. Another circumstance that should affect the pain, is the offender's firmness of mind; and another his strength of understanding. How is a court to take cognizance of these qualities? or in what degree are they to affect their proceedings? If we are to admit such considerations into our law at all, they ought to be carried a great deal farther than Mr. Bentham has indicated; and it should be expressed in the statutes, what alleviation of punishment should be awarded to a culprit on account of his wife's pregnancy, or the colour of his children's hair. We cannot help thinking that the undistinguishing grossness of our actual practice is better than such foppery. We fix a punishment that is calculated for the common, average condition of those to whom it is to be applied ; and, in almost all cases, we leave with the judge a discretionary power of accomodating it to any peculiarities that may seem to require an exception. After all, this is the most plausible part of Mr. Bentham's arrangements.

In what he has said of the false notions which legislators have frequently followed in preference to the polar light of utility, we think we discover a good deal of inaccuracy, and some little want of candour. Mr. Bentham must certainly be concious that no one ever pretended that the mere antiquity of a law was a sufficient reason for retaining it, in spite of its evident inutility: But when the utility of parting with it is doubtful, its antiquity may fairly be urged as affording a presumption in its favour, and as a reason for being cautious at least in the

588

BENTHAM'S MISTAKES AS TO FICTIONS OF LAW.

removal of what must be incorporated with so many other institutions. We plead the antiquity of our Constitution as an additional reason for not yielding it up to innovators: but nobody ever thought, we believe, of advancing this plea in support of the statutes against Witchcraft. In the same way, we think, there is more wit than reason in ascribing the errors of many legislators to their being misled by a metaphor. The metaphor, we are inclined to think, has generally arisen from the principle or practice to which Mr. Bentham would give effect independent of it. The law of England respects the sanctity of a free citizen's dwelling so much, as to yield it some privilege; and therefore an Englishman's house is called his Castle. The piety or superstition of some nations has determined that a criminal cannot be arrested in a place of worship. This is the whole fact: the usage

is neither explained nor convicted of absurdity, by saying that such people call a church the House of God. If it were the house of God, does Mr. Bentham conceive that it ought to be a sanctuary for criminals? In what is said of the Fictions of law, there is much of the same misapprehension. Men neither are, nor ever were, misguided by these fictions; but the fictions are merely certain quaint and striking methods of expressing a rule that has been adopted in an apprehension of its utility. To deter men from committing treason, their offspring is associated to a certain extent in their punishment. The motive and object of this law is plain enough; and calling the effect“ Corruption of blood,” will neither aggravate nor hide its injustice. When it is said that the heir is the same person with the deceased, it is but a pithy way of intimating that he is bound in all the obligations, and entitled to all the rights of his predecessor. That the King never dies, is only another phrase for expressing that the office is never vacant; and that he is every where, is true, if it be lawful to say that a person can act by deputy. In all these observations, and in many that are scattered through the subsequent part of his book, Mr. Bentham seems to forget that there is such a thing as common sense in the world; and to

NOT SUFFICIENTLY ALIVE TO COMMON SENSE.

589

take it for granted, that if there be an opening in the letter of the law for folly, misapprehension, or abuse, its ministers will eagerly take advantage of it, and throw the whole frame of society into disorder and wretchedness. A very slight observation of the actual business of life might have taught him, that expediency may, for the most part, be readily and certainly discovered by those who are interested in finding it; and that in a certain stage of civilisation there is generated such a quantity of intelligence and good sense, as to disarm absurd institutions of their power to do mischief, and to administer defective laws into a system of practical equity. This indeed is the grand corrective which remedies all the errors of legislators, and retrenches all that is pernicious in prejudice. It makes us independent of technical systems, and indifferent to speculative irregularities; and he who could increase its quantity, or confirm its power, would do more service to mankind than all the philosophers that ever speculated on the means of their reformation.

In the following chapter we meet with a perplexity which, though very ingeniously produced, appears to us to be wholly gratuitous. Mr. Bentham for a long time can see no distinction between Civil and Criminal jurisprudence; and insists upon it, that rights and crimes necessarily and virtually imply each other. If I have a right to get your horse, it is only because it would be a crime for you to keep him from me; and if it be a crime for me to take your horse, it is only because you have a right to keep him. This we think is very pretty reasoning: But the distinction between the civil and the criminal law is not the less substantial and apparent. The civil law is that which directs and enjoins— the criminal law is that which Punishes. This is enough for the legislator; and for those who are to obey him. It is a curious inquiry, no doubt, how far all rights may be considered as the counterpart of crimes; and whether every regulation of the civil code necessarily implies a delict in the event of its violation. On this head there is room for a good deal of speculation ; but in our opinion Mr. Bentham pushes the principle much

590

BENTHAM

-IDLE SUBDIVISIONS OF LAW.

too far. There seems to be nothing gained, for instance, either in the way of clearness or consistency, by arranging under the head of criminal law, those cases of refusal to fulfil contracts, or to perform obligations, for which no other punishment is or ought to be provided, but a compulsory fulfilment or performance. This is merely following out the injunction of the civil code, and cannot, either in law or in logic, be correctly regarded as a punishment. The proper practical test of a crime, is where, over and above the restitution of the violated right (where that is possible), the violator is subjected to a direct pain, in order to deter from the repetition of such offences.

In passing to the code of criminal law, Mr. Bentham does not forget the necessity of classifying and dividing. Delicts, according to him, are either, 1. Private, or against one or a few individuals; 2. Reflective, or against the delinquent himself; 3. Semipublic, or against some particular class or description of persons; and, finally, Public, or against the whole community. Private delicts again, relate either to the person, the property, the reputation or the condition; and they are distributed into complex and simple, principal and accessory, positive and negative, &c., &c. The chief evil of a crime is the alarm which it excites in the community; and the degree of this alarm, Mr. Bentham assumes, depends upon eight circumstances, the particular situation of the delinquent, his motives, his notoriety, his character, the difficulties or facilities of the attempt, &c. But here again, we see no sense in the enumeration; the plain fact being, that the alarm is increased by every thing which renders it probable that such acts may be frequently repeated. In one case, and one of considerable atrocity, there is no alarm at all; because the only beings who can be affected by it, are incapable of fear or suspicionthis is the case of infanticide: and Mr. Bentham ingeniously observes, that it is probably owing to this circumstance that the laws of many nations have been so extremely indifferent on that subject. In modern Europe, however, he conceives that they are barbarously severe,

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