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which the laws now restrain as injurious to society, should meet with impunity, or that the penalties now affixed to treason, to murder, and a few other heinous crimes, should be mitigated. But I do mean, that of the milder punishments some should be softened, and others increased; that transportation or imprisonment, or punishments carrying with them great pain or great infamy, should be substituted for death; that death should be denounced by the authority of the laws themselves, rather than inflicted by the discretion of the executive government, against the third or fourth repetition of many crimes which are now in the first instance capital ; that this principle, which now is adopted in a few cases, should be extended to more; and that, in order to prevent the useless and nuinberless disputes which in the discussions of a popular assembly are likely to arise from the proposed repeal of penal statutes one after another in detail, the new code should be ushered in by a most precise and most wary preamble, revoking all former statutes in the mass, and declaring that crimes should hereafter be punished under the circumstances and according to the degrees stated in that code. I suppose not only the code itself to be sanctioned by parliamentary authority, but the persons who prepare it to be appointed by the same authority, without the smallest respect to party differences, and from a firm conviction that they who are called to this momentous task are really and largely endowed with every intellectual and every moral qualification. I hope not to be thought romantic in expressing a farther wish, that once or twice every year, upon the approach of the assizes, an abridgment of the code itself should be read in every parochial church, and that this ceremony should be accompanied by a judicious and most solemn homily, composed by the most enlightened ecclesiastics, and sanctioned by the public authority both of the church and the state. Such a practice would give real propriety and real efficacy to the well-known maxim, “ignorantia legis neminem excusat.”
“The punishment of a crime," says Beccaria, “cannot be just (that is, necessary) if the laws have not endeavoured to prevent that crime by the best means which times and circumstances would allow."* But can it be doubted that promulgation is
* Chap. xxi.
one among the necessary means of prevention ? False and per. nicious is the doctrine that men are slaves, when they are required to obey laws made by other men. But they surely must be deficient in the duties of good subjects, when they are called upon to obey laws not understood nor even known by themselves.
In respect to the civil code of this country, the proceedings at law by the statute 4 George II. chap. 26, “were done into Eng. lish in order that the common people might have knowledge and understanding of what was alleged or done for and against them in the process and pleadings, the judgnients' and entries, in a cause." Yet we are told by Blackstone, * " that he knows not how well it has answered the purpose, but he is apt to suspect that the people are now, after many years experience, altogether as ignorant in matters of law as before.” How far a remedy may be applied to that ignorance in matters of property I know not. But the promulgation which I recommend would exclude all such pleas of ignorance upon those statutes which create offences and command punishments.
“ There needs," says the same writer, "no formal promulgation to give an act of parliament the force of a law, as was necessary by the civil law with regard to the Emperor's edicts; because every man in England is in judgment of law party to the making an act of Parliament, being present thereat by his representatives." + Blackstone's antagonist comments very sharply on the foregoing passage. “This,” says he, “ for aught I know, may be good judgment in law, because anything may be called judgment of law that comes from a lawyer that has got a name. It seems, however, not much like anything that can be called judgment of common sense.” I
If by the force of a law be meant the right of exacting obedience from subjects, the reason assigned by Blackstone seems to me also far-fetched. It might involve many idle disputes about actual and virtual representation, and leave room for many absurd claims of exemption from obedience among those who should be inclined to contend, that not being actually repre
* Commentaries, vol. iii.
See Pref. to a Fragment on Government, p. 27.
sented, they were no parties to a statute, and are therefore not bound by it. Force, as meaning the right of demanding obedience, is communicated to laws directly and solely by the authu. rity of the legislature itself. But administration is necessary to give efficacy to laws, and without promulgation it were unjust to administer them. For how shall subjects obey that in which they have not believed ? “ Or how," as St. Paul reasons, “shall they believe that of which they have not heard ? Or how shall they learn without a teacher? And how shall they teach, except they be sent" and commissioned to do so ?
If the subject were not of such infinite importance, I should be content to smile at the refinement or fiction of Blackstone, when he states the supposed presence of every subject at the enactment of laws, to supersede the necessity of formal promulgation. Magistrates, when they are required to execute statutes, are furnished with copies of them. But subjects, when they are forbidden to commit an offence, and threatened with exile, or imprisonment, or death, for committing it, are left to find out the meaning and very existence of a statute as they can. The fact is notorious, and I remember the perilous situation of two unhappy young men who had ignorantly subjected themselves to death by violating a recent provision against a particular kind of forgery.
The dogmas which with so much confidence of assertion, and so little conformity to facts, are every day advanced upon promulgation, example, and other matters closely connected with the lives of men and the safety of society, compel me to look for refuge in the judgment of a writer who, beyond all his contemporaries, is entitled to the honourable appellation bestowed upon Thalelæus, “qui ob scientiæ præstantiam dictus fuit vouicñs οφθαλμός." * “ Punishments must be inefficacious where the penal provision is not conveyed to the notice of the person on whom it seems intended that it should operate. Such is the case where the law has omitted to employ any of the expedients which are necessary to make sure that every person whatsoever, who is within the reach of the law, be apprised of all the cases
* Gravina, vol. i.
whatsoever in which (being in the station of life he is in) he can be subjected to the penalties of the law."*
We read of a Roman Emperor, “Qui proposuit quidem legem: sed et minutissimis literis et angustissimo loco, uti ne cui describere liceret."+ An English legislator would shudder at the thought of imitating Caligula's deliberation. But his negligence in giving notoriety to coercive laws which create offences, impose obligation, and command punishment, i must tend to produce a similar effect. Common sense and common humanity require that the “utmost possible care should be taken to lay before every man, of whom obedience is required, the clearest and most accurate viewġ of that ideal object of which the part,
* Bentham's Introduction, chap. xiii.
§ The Athenians, with a mixture of gratitude and admiration, were anxious to distinguish by a peculiar name the laws of Solon from those of Draco. They called the former vouovs, and the latter Beouous.—See the authors quoted by Meursius, cap. 13, de vita, legibus, atque scriptis Solonis. But there cannot be many persons now living who would commend the conduct of Solon in framing laws with studied obscurity, or acquiesce in the reason assigned for it: “λεγέται και τους νόμους ασαφέστερον γράψας, και πολλές αντιλήψεις έχοντας, αυξήσαι την των δικαστηρίων ισχύν. Μη δυναμένους γάρ υπό των νόμων διαλυθήναι περί ών διεφέροντο συνέβαινεν αεί δείσθαι δικάστων, και πάν άγειν αμφισβήτημα προς εκείνους, των νόμων τρόνον τινά Kuprevovras."- Plutarch, in Vit. Solonis, vol. i. p. 88, ed. Sylburg.
Such a measure might in Solon's estimation be suited to Solon's countrymen in Solon's age. But if it were proposed during the enactment of a Statute in the English Parliament, it would be indignantly rejected; and yet I remember something like an indirect and incidental approbation of the principle, in a speech which about the year 1780 was delivered in the Borough, and in which a sort of insinuation was thrown out, that it might not be wholly inconvenient for the common people to remain ignorant of the legal differences between riot aggravated by plunder, and treason. The observation, when I read it in the newspapers, seemed to me most unbecoming in an open court
I Though Socrates eloquently pleaded the cause of Minos, and other departed lawgivers, as the benefactors of mankind, I doubt whether he would bave admitted the person to whom I allude into his catalogue of wortbies.-Vide Plat. in Minoe, vol. ii.p. 319, edit. Serran. VOL. IV.
the whole, the multiple, or an assemblage of parts, wholes and
of judicature, and to this hour animus meminisse horret. But at present there sits not, I am firmly persuaded, on the English Bench, one person who is capable of applying or uttering, or even harbouring in his mind, with the smallest degree of assent, so dangerous a rule for the administration of public justice,
Penal laws ought to be too clear to be misunderstood by any man of plain common sense and common attention--too strong to be violated with impunity by the audacious—too precise and defipite to be evaded by the crafty, or perverted by the tyrannical, and too just to be enforced without the prompt and general approbation of society. Who controverts these trite and obvious truths ? No one.
But have lawgivers never neglected them ? Have our forefathers never supposed the Judges of their day to usurp indirectly the office of lawgivers, to strangle the ordinary import of words and sentences in right and intricate swaths of technical maxims, and to draw out from the body of a statute those vital energies, which they wished to see employed in giving strength and activity to all the huge and uncomely limbs of interpretation affixed to it by themselves ? Have cunning villains never baffled the efforts both of judges and lawgivers, while for the commission of crimes similar in appearance, but far inferior in malignity, a wretch almost ignorant of his political duty, and quite unskilful in eluding danger, has suffered death?
The Roman law is indebted for much of its precision to the language it adopted from the Stoics, who were eminently distinguished by their accuracy in the use of terms. But Mr. Bentham has well observed that, in one instance, even the Roman lawyers utterly abandoned the original sense of dolus, which "impltes deceit, concealment, clandestinity;" and in order to distinguish between dolus, and culpa sine dolo, applied the former word to "open violence," accompanied by "intentionality.sk -Elements of Jurisprudence, p. 92.
The best explanation I have ever seen (for it was not intended to be a defence) of the phrase dolus malus is in a most learned work of Heraldus. “ Dolus," says he, “ et dolus malus multo latius extenditur. Sed in lege Cornelia (de Sicariis et Veneficiis) est πρόνοια, que etiam in foro Attico dicebatur επίBoułn, proprie, dolus. Dolus malus excludebat impetum et casum, quomodo et apóvola, et ideo homicidium dolo malo factuin dicebatur, quod non furore factum, impetu, et casu, sed proposito, quod est πρόνοια. Πρόνοια in criminibus βούλευσιν significat, diavolav, érißovliv."--Animadvers, in Salmasii Observat, ad Jus. Att. et Rom. lib. v. cap. iii.
In a subsequent page I shall have occasion to notice the objection made by Mr, Penn to another phrase, malus animus,