country must be different, and in some respects, the Penal Law also, because it depends, as I have said, partly upon the Civil Law, and partly, directly upon the national habits. There is, in every national Code of Law, a necessary and fundamental historical element: not a few supplementary provisions which may be added or adapted to the local circumstances after the great body of the Code has been constructed not a few touches of local coloring to be put in after the picture is almost painted: but an element which belongs to Law from its origin and penetrates to its roots :— a part of the intimate structure; a cast in the original design. The national views of personal status; property, and the modes of acquisition; bargains, and the modes of concluding them; family, and its consequences; government, and its origin-these affect even the most universal aspects and divisions of penal offenses;-these affect still more every step of the expository process which the Civil Law applies to Rights in defining penal Offenses.

I conceive it to have been one of the great defects,errors, I should venture to say-of Mr Bentham, that he was not well aware of this principle. He imagined that, to a certain extent, his schemes of Law might be made independent of Local Conditions. Thus, in speaking of the advantage of his classification of offenses, (C. xv.) he says, (¶ 56), "The analysis, as far as it goes, is as applicable to the legal concerns of one country as of another; and where, if it had descended into further details it would have ceased to be so, there I have taken care always to stop." And he says further, (60) that "this natural arrangement, governed as it is by a principle which is recognized by all men, will serve alike for the jurisprudence of all nations. In a system of proposed law, framed in pursuance of such a method, the language will serve as a glossary by which all systems of positive law might be explained; while the matter serves as

a standard by which they might be tried." This fancy of a systematic view of a subject, which shall supply an explanation of the terms of all national languages on that subject, and a standard of the justness of all national opinions, is a very seductive, but it requires no presumption to say, a very extravagant and impracticable notion; and such I conceive all modes of treating law, which leave out the historical element, must always be.

It is very true that Bentham does propose to consider the historical or national aspect of laws. He says in the passage just quoted (56), "That the legal interests of different ages and countries have nothing in common, and that they have everything, are suppositions equally distant from the truth." But still, he desires, as appears by what I have quoted, to make his plan independently of all national habits and histories. He would not place the national historical element at the basis of the system, where, however, it must be. He has written an Essay on the Influence of Time and Place in Matters of Legislation; and in this, he gives many examples of the way in which local habits and circumstances modify the reasons for laws. But he applies the maxims which he thus gathers to the case in which laws are transplanted from one country to another: and, taking as his example the transfer of the English Law to Bengal, he is led rather to employ himself in vigorous sarcasms, both against the Law itself and against its effects as transferred, than in any discussions which can be considered as adding anything to the philosophy of the subject. There is, in this Essay, a good deal of the dogmatism and depreciation of adverse views, in which he so habitually indulges, There is however, it must also be said, much condemnation of dogmatism, and acknowledgement of the necessity and wisdom of doubt and hesitation in such matters; and several passages of considerable force and beauty. Thus, Chap. 11.

p. 178, "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."

The question, whether legislation is to be improved by framing a systematic code, or by proceeding with the elements of law which the national history supplies, has been much discussed in modern times, especially in Germany; and the two opposite Schools, the historical and the systematic, have each had adherents and assertors of great name. The question is a highly interesting and important one; and it may hereafter be very proper for us to pursue the discussion by the aid of the best lights which the literature of the subjects, both foreign and domestic, have furnished; but at present, looking at it only as it regards Bentham, I need not pursue it further. I have sufficiently indicated that I conceive one of his great defects is to be found in his neglect or misapprehension of the true place of historical legislation in Jurisprudence.

I may take the liberty of remarking that I have treated of this subject, the necessary existence and place of the historical element in legislation in the Elements of Morality including Polity, B. 1v. (Jus) Chap. i. (Rights in general.)

LECTURE XVIII.

BENTHAM-DEFECT OF HIS SYSTEM.

AVING thus noticed one great defect and error in

H I

Bentham's system, his depreciation of historical law,

must now notice another point in which I think him also altogether defective and erroneous; namely in not fully recognizing the moral object of Law. According to our views, Law has for its object to promote, not merely the pleasure of man, but his moral nature;—not merely to preserve and gratify, but to teach him :-not to enable him to live a comfortable animal life, but to raise him above mere animal life: in short, to conform to his nature as man:-not merely a sentient, not merely a gregarious, not merely a social creature, but a moral creature ; -a creature to whose moral being and agency all mere material possessions, enjoyments, and advantages, are instruments, means and occasions. Punishment is to be, not merely a means of preventing suffering, but is also to be a moral Lesson (Morality, Art. 988). Bentham, on the other hand, professes to make the promotion of human happiness-such happiness as can be resolved into mere pleasure or absence of pain-the sole object of punishment. On this view, there is no difference between laws restraining men in consequence of some calamity in which they are involved with no fault of theirs, and punishments for crime. Quarantine is not distinguishable from imprisonment for theft. Restraints imposed on those afflicted with contagious diseases are punishments, as much as restraints on those who try to break into a house. Now this is contrary to all common notions, and to all real jural philosophy. But the fact is, that such a view cannot be consistently carried through. And Bentham himself is obliged to defend laws which have no solid ground except their moral tendency;-their effect in teaching men good morality.

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As an example of the results of Bentham's attempt to exclude morality, as such, in his legislation, let us look at what he says respecting the Laws of Marriage.

On this subject he argues strongly in favour of a liberty of Divorce by common consent. He condemns the law which makes marriages indissoluble, in the strongest terms: he calls it cruel and absurd: he says this law "surprizes the contracting parties in the tenderness of their youth, in the moments which open all the vistas of happiness. It says to them, 'you unite in the hope of being happy, but I tell you, you only enter a prison whose door will be closed against you. I shall be inexorable to the cries of your grief, and when you dash yourselves against your fetters I shall not permit you to be delivered."" And as decisively condemnatory of this policy he says "The government which interdicts them [divorces] takes upon itself to decide that it understands the interests of individuals better than they do themselves." (Civil Code, Pt. II. c. v.)

Now upon this we may remark, that undoubtedly, in this and in many other cases, government, both in its legislation and administration, does assume that it understands the interests of individuals, and the public interest as affected by them, better than they do themselves. What is the

meaning of restraints imposed for the sake of public health, cleanliness and comfort? Why are not individuals left to do what they like with reference to such matters? Plainly because carelessness, ignorance, indolence, would prevent their doing what is most for their own interest. Is there anything strange in assuming that legislation, looking at all the consequences of marriage to the individuals and to society, to their comfort, fortune, and moral being, should judge better of the conditions under which it ought to be contracted than the parties in that delirium of feeling which Mr Bentham describes? Does not indeed almost the whole of law suppose the government to understand men's interests on many points better than they do themselves? Mr Bentham is