.

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TECHNICALITIES.

[ESSAY III such a system exclude various existing evils connected with legal institutions, evils so great as to be real calamities to the state?

Perhaps it is needless to remark, that all courts of equity which are recognised by the state should be public. Individuals who refer their disputes to private arbitrators may have them privately adjusted if they please. But publicity is a powerful means of securing that impartiality which it is the first object in the administration of justice to secure There is one advantage, collateral indeed to the administration of equity, but not therefore the less considerable, that it would have a strong tendency to diffuse sound ideas of justice in the public mind. As it is, it may unhappily be affirmed that courts of judicature spread an habitual confusion of ideas upon the subject; and, what is worse, very frequently inculcate that as just which is really the contrary. Our notions of a court of judicature are, or they ought to be, that it is a place sacred to justice. But when, superinduced upon this notion, it is the fact, that by very many of its decisions justice is put into the background; that law is elevated into supremacy; that the technicalities of forms and the finesse of pleaders triumph over the decisions of rectitude in the mind, the effect cannot be otherwise than bad. It cannot do otherwise than confound, in the public mind, notions of good and evil, and teach them to think that every thing is virtuous which courts of justice sanction. If, instead of this, the public were habituated to a constant appeal to equity, and to a constant conformity to its dictates, the effect would be opposite, and therefore good. Justice would stand prominently forward to the public view as the object of reverence and regard. The distinctions between equity and injustice would become, by habit, broad and defined. Instead of confounding the public ideas of morality, a court of jndicature would teach, very powerfully teach, discrimination. A court, seriously endeavouring to discover the decision of justice, and uprightly awarding it between man and man, would be a spectacle of which the moral influence could not be lost upon the people.

In thus recommending the application of pure moral principles in the administration of justice, the writer does not presume to define how far the present condition of human virtue may capacitate a legislature to exchange fixed rules of decision for the impartial judgments of upright men. That it may be done to a much greater extent than it is now done he entertains no doubt. A legislature might perhaps begin with that pernicious species of arbitrary rules which consists of technicalities and forms. To deny justice to a man because he has not claimed it in a specific form of words, or because some legal inaccuracy has been committed in the proceedings, must always disapprove itself to the plain judgments of mankind. Begin then with the most palpable and useless rules. Whatever can be dispensed with, it is a sacred duty to abolish, and every act of judicious abolition will facilitate the abolition of others: -it will prepare the public mind for the contemplation of purer institu tions, and gradually enable it to adopt those institutions in the national practice.

As to the particular modes of securing the administration of simple justice, the writer would say, that those which he has suggested he has suggested with deference. His business is rather with the principles of

CHAP. 11.]

OF CRIMES.

311

sound political institutions than with the form and mode of applying them to practice. Other and better means than he has suggested are probably to be found. The candid reader will acknowledge, that in advocating institutions so different from those which actually obtain, the political moralist is under peculiar difficulties and disadvantages. The best machinery of social institutions is discovered rather from experience than from reasoning; and upon this machinery, in the present instance, experience has thrown little light.

Here, as in some other parts of this work, the reader will observe that alterations are proposed and improvements suggested which have been actually adopted since these Essays were written. Our courts, and also the legislature, have lately paid some attention to the modes in which public justice is administered. As yet, the alterations which have been made are chiefly confined to the criminal laws: but our judges are now beginning to exert the discretionary power which is vested in them, in preventing the course of justice from being, so frequently as it heretofore has been, intercepted by technicalities and verbal inaccuracy. Of this the public had lately an instance in the cause of Gulley, v. the Bishop of Exeter. A parliamentary commission has been appointed and is now sitting, whose object it is to devise improvements in the practice of our courts of judicature.-ED.

CHAPTER XI.

OF THE POPULAR SUBJECTS OF PENAL ANIMADVERSION.

THE man who compares the actions which are denounced as wrong in the moral law with those which are punished by civil government will find that they are far from an accordance. The moral law declares many actions to be wicked which human institutions do not punish; and there are some that these institutions punish, of which there is no direct reprehension in the communicated will of God.

It is not easy to refer all these incongruities to the application of any one general principle of discrimination. You cannot say that the magistrate adverts only to those crimes which are pernicious to society,— for all crimes are pernicious. Nor can you say that he selects the greatest for his animadversion, because he punishes many of which the guilt is incomparably less than others which he passes by. Nor, again, can you say that he punishes only those in which there is an injured and complaining party; for he punishes some of which all the parties were voluntary agents. Lastly, and what seems at first view very extraordinary, we find that civil governments create offences which, simply regarded, have no existence in the view of morality; and punish them with severity, while others, unquestionably immoral, pass with impunity.

The practical rule which appears to be regarded in the selection of offences for punishment is founded upon the existing circumstances of the community.

Offences against which, from any cause, the public disapprobation is strongly directed are usually visited by the arm of the civil magistrate, -partly because that disapprobation implies that the offence disturbs the order of society, and partly because, in the case of such offences, penal animadversion is efficient and vigorous, by the ready co-operation of the

312

SEDUCTION, ETC.

[ESSAY III public. Thus it is with almost all offences against property, and with those which personally injure or alarm us. Every man is desirous of prosecuting a house-breaker, for he feels that his own house may be robbed. Every man is desirous of punishing an assault or a threatening letter, because he considers that his peace may be disturbed by the one and his person injured by the other. This general and strong reprobation makes detection comparatively easy, and punishment efficient.

Examples of the contrary kind are to be found in the crimes of drunkenness, of profane swearing, of fornication, of duelling. Not that we have any reason to expect that at the bar of heaven some of these crimes will be at all less obnoxious to punishment than the former, but because, from whatever reason, the public very negligently co-operate with law in punishing them, and manifest little desire to see its penalties inflicted. An habitual drunkard does much more harm to his family and to the world than he who picks my pocket of a guinea, yet we raise a hue and cry after the thief, and suffer the other to become drunk every day. So it is with duelling and fornication. The public know very well that these things are wrong, and pernicious to the general welfare; but scarcely any one will prosecute those who commit them. The magistrate may make laws, but in such a state of public feeling they will remain as a dead letter; or, which perhaps is as bad, be called out upon accidental and irregular occasions.

Another rule which appears to be practically, though not theoretically, adopted is, to punish those offences of which there is a natural prosecutor. Thus it is with every kind of robbery and violence. Some one especially is aggrieved: the sense of grievances induces a ready prosecution; and whatever is readily prosecuted by the people will generally be denounced in the laws of the state. The opposite fact is exhibited in the case of many offences against the public, such as smuggling, and generally in the case of all frauds upon the revenue. No individual is especially aggrieved (unless in the case of regular dealers whose business is injured by illicit trading), and the consequence is either that numberless frauds of this kind are suffered to pass with impunity, or that the government is obliged to employ persons to detect the offenders and to prosecute them itself. There are some crimes which seem in this respect of an intermediate sort,-where there is a natural prosecutor and yet where that prosecutor is not the most aggrieved person. This is instanced in the case of seduction. The father prosecutes, but he does not sustain one-half the injury that is suffered by the daughter. There are obvious reasons why the most injured party should be at best an inefficient prosecutor; and the result is consonant,--that this offence is frequently not punished at all, or, as is the case in our own country, it is punished very slightly, so slightly that in no case does the person of the offender suffer. This lenity does not arise from the venialness of this crime, or of that of adultery. They are among the most enormous that can be perpetrated by man. Of the less flagitious of the two, it has been affirmed "that not one-half of the crimes for which men suffer death by the laws of England are so flagitious as this.”* This enormity is distinctly asserted in both the Old Testament and the New: in the first, adultery was punished with death; in the second, both this and fornication, which is less criminal than seduction, is repeatedly assorted with

* Paley: Mor. and Pol. Phil. b. 3, p. 3.-Seduction.

CHAP. 11.]

CREATED OFFENCES.

313

the greatest crimes, and alike threatened with the tremendous punishments of religion.

Such considerations lead the inquirer to expect that the offences which are denounced in a statute-book will bear some relation to the state of virtue in the people. The more virtuous the people are the greater will be the number of crimes which can be efficiently visited by the arm of power. Thus, during some part of the seventeenth century, that is, during the interregnum, adultery was punished with death; and it may be remarked, without paying a compliment to the religion or politics of those times, that the actual practice of morality was then, among a large proportion of the nation, at a higher standard than it is now. No society exists without some species of penal justice,—from that of a gang of thieves to that of a select and pious Christian community. The thieves will punish some crimes, but they will be few. The virtuous community will punish or, which for our present purpose is the same thing, animadvert upon very many. In a well-ordered family many things are held to be offences, and are noticed as such by the parent, which in a vicious family pass unregarded.

When, therefore, we contemplate the unnumbered offences against morality which the magistrate does not attempt to discourage, we may take comfort from hoping that as the virtue of mankind increases, it may increase in more than a simple ratio. As the public become prepared for it, governments will lend their aid; and thus they who have now little restraint from some crimes but that which exists in their own minds may hereafter be deterred by the fear of human penalty. And this induces the observation, that to throw obstacles in the way of increasing the subjects of penal animadversion is both impolitic and wrong. This, unhappily, has frequently been done in our own country. Some public writers (writers not of great eminence to be sure), have taken great pains to ridicule legislation respecting cruelty to animals, and the endeavours on the part of well-disposed men to enforce almost obsolete statutes against some other common crimes. There are, surely, a sufficiency of obstacles to the extension of the subjects of penal legislation, without needlessly adding more. Besides, these men directly encourage the crimes. To sneer at him who prosecutes a ferocious man for cruelty to an animal, is to encourage cruelty. When a man is brought before a magistrate for profaneness,-to joke about how the culprit swore in the court, is to teach men to be profane.

That which we have called, in the commencement of this chapter, the creation of offences, demands peculiar solicitude on the part of a government. By a created offence, I mean an act which, but for the law, would be no offence at all. Of this class are some offences against the gamelaws. He who on another continent was accustomed, without blame, to knock down hares and pheasants as he found occasion, would feel the force of this creation of offences when, on doing the same thing in England, he was carried to a jail. The most fruitful cause of these factitious offences is in extensive taxation. When a new tax is imposed, the legislature endeavours to secure its due payment by requiring or forbidding certain acts. These acts, which antecedently were indifferent, become criminal by the legislative prohibition, or obligatory by the legis

314

CREATED OFFENCES.

[ESSAY IIIlative command; and non-compliance is therefore punished as an offence by the civil power.* There is no more harm in a man's buying brandy in France and bringing it to England than in buying a horse of his neighbour. The law lays a duty upon brandy, prohibits any man from bringing it to the country except through a custom-house, and treats as criminals those who do.

Now we do not affirm that those who commit these created offences do not absolutely offend against morality. They do offend; for in general every evasion or violation of the laws of the state is an immoral act. But this does not affect the truth that such offences should be as few as they can be. The reasons are, first, that they are encroachments upon civil liberty, and secondly-which is our present concern-that they are pernicious to the public. Men perceive the distinction between moral crimes and legal crimes without perhaps ever having inquired into its foundation. And they act upon this perception. He who has been convicted of killing hares, or evading taxes, or smuggling lace, is commonly willing to tell you of his exploits. He who has been convicted of stealing from his neighbour hangs down his head for shame. The sanctions of law ought to approve themselves to the common judgments of mankind. Whatever the state denounces, that the public ought to feel to be criminal, and to be willing to suppress. The penalties of the law ought to be accompanied in men's minds by the sanction of morality. They should feel that to be punished by a magistrate was tantamount to being a bad man. When, instead of this, there is an intricate admixture,--when we see some things which are, simply regarded, innocent, visited by the same punishment as others that all men feel to be wicked, men are likely to feel a diminished respect for penal law itself. They learn to regard the requisitions of law as having little countenance from rectitude; and think that to violate them, though it may be dangerous, is not wrong. It does not approve itself, as a whole, to the public judgment; and there are many perhaps who feel, on this account, a diminished respect for penal institutions, without being able to assign the reason.

In the extension of this political and moral evil the greatest of all agents is war. With respect to the creation of offences, it stands sui generis, and converts a greater number of indifferent actions into punishable ones than all other agents united. War produces the extensive taxation of which we speak; but the practical system has offences peculiar to itself,-offences which the moral law of our Creator never denounced, but which the system of war visits with tremendous punishments. Adam Smith adverts to this deplorable circumstance. He says, that the punishment of death to a sentinel who falls asleep upon his watch, "How necessary soever, always appears to be excessively severe. The natural atrocity of the crime seems to be so little, and the punishment so great, that it is with great difficulty that our heart can reconcile itself to it." Nor will the heart nor ought the heart ever to be reconciled to it. It is, I know, perfectly easy to urge arguments in its favour from expediency and the like; but urge these arguments as you may, the uninitiated or unhardened heart will never be convinced: and it is vain to tell us that that is right which the immutable dictates in our minds pronounce to

I have somewhere met with a book which contended that to commit these created offences was no breach of morality. This, however, is not true, because the obligation to obey civil government, in its innocent enactments, is clearly stated in the moral law. Theory of Moral Sentiments