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This distinction is probably as good a one as can be briefly given, and falls in very well with most of the purposes for which the distinction of Civil and Penal Law is commonly referred to*. At the same time you may observe, that it does not really (as at first sight it seems to do and to profess to do) take the distinction of Civil and Penal Law out of the control of more popular and national notions, and give to it a scientific fixity and exactness. For, in the first place, if we thus say in a general manner that Wrongs are forbidden by the Penal Law, and the Terms involved in the definition of each Wrong expounded by the Civil Law; it is plain that the wrongs thus forbidden, and needing to be explained, will be selected from the general mass of human actions by the common popular habit of thought which has distinguished them by special names. Assault, Theft, Cheating, Adultery, Treason, and the like, are forbidden, suppose, by the Penal Law; and hence, the laws of Personal Status, Property, Contract, Family and Government, must be laid down by the Civil Law. But still, there must remain cases of which it is doubtful whether they do or do not come under any of these denominations. For instance, two men quarrel about a bargain: one accuses the other of Fraud, that is of a Penal Fraud, of Cheating; or perhaps each accuses the other of this. But it is possible that there may be a doubt or mistake about the bargain, and that neither of them may be justly liable, even to a primâ facie charge of

* Penal Law is the Law concerning Offenses: Civil Law is the Law concerning Conflicting Rights. In criminal cases an offense is charged against the doer; it may be no offense, no crime, because the accused may have done only what he had a right to do; but it is charged as an offense, or a crime. In Civil Cases no crime is charged, but the Right is directly contested. Hence Penal Law assumes offenses, and legislates about them: Civil Law defines Rights. But the definition of Rights must be historical, for Rights have been established as they exist by past laws and transactions, public and private.

cheating and yet the quarrel ought to be settled by Law: and if this be so, by the Civil, not the Penal Law. Here it is doubtful to which of the two bodies of Law the case belongs; and the head "Cheating," which we suppose now to be one of the "Titles" of the Penal Law, and which must necessarily be expounded (when expounded) into an extensive and irregular mass of offenses, is borrowed from the popular vocabulary, and must necessarily bring with it much of the confusion which belongs to popular thought, when it is made the starting point of our determination as to what is, and what is not, a penal kind of wrong.

But further: not only the Heads of the Penal Law, which are the starting points of the expository matter, of which the Civil Law consists, are strongly tinged with popular looseness of idea, and in some measure, with national differences of thought: but still more, all the Terms in which the exposition is given will, at every step almost, contain references to popular and national habits of thought, and to the primary events of the national history, including, of course, the history of its jurisprudence. You have seen this in the definition which I gave of Theft: that definition takes you at once to the term Title. Now the very term Title implies certain settled habits of possessing property and of justifying the possession of it, which exist in very different degrees and forms in different parts of the world. And when we come to enumerate, (as I observed we must have to do in order to carry out our exposition) the modes of acquiring Title to property; as Descent, Purchase, Prescription, and the like; we come to a series of events which have different aspects in different countries; and in many cases must, in order to be intelligible and applicable to actual cases, be described by different terms of a new order; and thus, give to the Civil Law of each country a national form and aspect.

(Historical Element.) And thus the Civil Law of each

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. XVIII.) 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

This fancy of

a standard by which they might be tried." 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 sider the historical or national aspect of laws. He says in propose to conthe 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. national historical element at the basis of the system, where, He would not place the 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. applies the maxims which he thus gathers to the case in But he 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. is, in this Essay, a good deal of the dogmatism and depreThere ciation 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. IV. (Jus) Chap. i. (Rights in general.)

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