The legislator is not the master of the dispositions of the human heart: he is only their interpreter and their servant. The goodness of his laws depends upon their conformity to the general expectation. It is highly necessary, therefore, for him rightly to understand the direction of this expectation, for the purpose of acting in concert with it. Such is the object in view:---let us proceed to the examination of the conditions necessary for its accomplishment.
1. The first of these conditions, but at the same time the most difficult to be attained, is, that the laws may be anterior to the formation of the expectation. If we could suppose a new people, a generation of children: the legislator, finding no expectations formed which could oppose his views, might fashion them at his pleasure, as the sculptor fashions a block of marble. But as there already exists among all people a multitude of expectations, founded upon ancient laws or ancient usages, the legislator is obliged to employ a system of conciliations and concessions, which constantly restrain him.
The first laws themselves have always found some expectations formed; for we have seen, that before the laws there existed a feeble kind of property; that is to say, a certain expectation of keeping what each one had acquired: hence the laws have received their first direction from these anterior expectations; they have given birth to new ones, they have excavated the bed in which desires and hopes have flowed. It is no longer possible to make any change in the laws of property, without more or less disturbing the established current, and without its opposing a greater or less resistance.
Do you wish to establish a law in opposition to the actual expectations of men? if it is possible, let it begin to have effect at a distant period: the present generation will perceive no change, and the rising generation will be all prepared for it; you will find among its youth, auxiliaries against the ancient opinions; you will not injure existing interests, because they will have leisure to prepare for the new order of things. Every thing will become smooth before you, because you will have prevented the birth of expectations which would have been opposed to you.
2. Second condition---Let the laws be known. A law which is unknown can have no effect upon expectation: it does not serve to prevent an opposite expectation.
This condition, it may be said, does not depend upon the nature of the law, but upon the measures taken for its promulgation. These measures may be sufficient for their object, whatever may be the law.
This reasoning is more specious than true. There are some laws naturally more easily understood than others; such are, laws conformable to expectations already formed; laws which repose upon natural expectations. This natural expectation, this expectation produced by early habit, may be founded upon superstition, upon a hurtful prejudice, or upon a sentiment of utility: this is of no importance; the law which is conformed to it maintains its place in the mind without effort; it was there, so to speak, before it was promulgated; it was there before it received the sanction of the legislator. But a law opposed to this natural expectation, is understood with much greater difficulty, and is with still greater difficulty imprinted upon the memory: it is another disposition of things, which always presents itself to the mind; whilst the new law, altogether strange, and without roots, tends incessantly to slip from the place in which it is only artificially fixed.
Codes of ritual observances, among others, possess this inconvenience, that their fantastic and arbitrary rules, never being well known, fatigue the understanding and the memory; and the subject of them, always fearing, always at fault, always fancying himself morally diseased, can never reckon upon his innocence, and lives in want of perpetual absolutions;
Natural expectation directs itself towards the laws which are most important to society; and the foreigner who should be guilty of theft, fraud, or assassination, would not be permitted to plead his ignorance of the laws of the country, because he could not but have known that acts, so manifestly hurtful, were every where considered as crimes.
3. Third condition---That the laws should be consistent with themselves. This principle has a close relation with the preceding one; but it will serve to place a great truth in a new light. When the laws have established a certain arrangement upon a principle generally admitted, ever&y arrangement in conformity with this principle will naturally be conformable to the general expectation.---Every analogous law is, so to speak, presumed beforehand: every new application of the principle contributes to strengthen it. But a law which does not possess this character dwells alone, as it were, in the mind, and the influence of the principle to which it is opposed is a power which incessantly tends to expel it from the memory.
That at the death of a man, his goods should be transmitted to his nearest relations, is a rule generally admitted, to which expectations naturally direct themselves. A law respecting successions, which should be consistent with this rule, would obtain general approbation, and would be understood by every mind. But the more this principle is disregarded, by the admission of exceptions, the more difficult it will be to comprehend and to retain them. The Common Law of England offers a striking example. It is so complicated with regard to the descent of property; it admits distinctions so singular; the previous decisions, which serve to regulate it, are so subtilized, that not only is it impossible for simple good sense to presume them, it is also difficult for it to comprehend them. It is a study profound as that of the most abstract sciences: it belongs only to a small number of privileged men: it has been necessary even for them to subdivide themselves; for no one lawyer pretends to understand the whole. Such has been the fruit of a too superstitious respect for antiquity.
When new laws happen to oppose a principle established by former laws, the stronger this principle is, the more hateful appears the inconsistency. There results a contradiction of opinions, and the disappointed expectant accuses the legislator of tyranny.
In Turkey, when a man in office dies, the Sultan appropriates to himself all his fortune, at the expense of his children, who fall at once from opulence to misery. This law, which overturns all the natural expectations, is probably derived from certain other eastern governments, in which it is less inconsistent and less odious, because the sovereign only confers office upon eunuchs.
4. Fourth condition---It is only possible to make laws truly consistent, by following the principle of utility. This is the general point of union for all expectations.
Still a law conformed to utility may be found opposed to public opinion. But this is only an accidental and transient circumstance: it is only necessary to render this conformity sensible, in order to bring back all minds. As soon as the veil which hides it is withdrawn, expectation will be satisfied, and public opinion reconciled. But the more it is certain that the laws are conformed to utility, the more manifest will that utility become. If a quality be attributed to a subject which does not possess it, the triumph of this error may not endure for a day: a single ray of light is sufficient to dissipate the illusion. But a quality which really exists, though unknown, may be happily discovered at any instant. At the first moment, an innovation is surrounded by an impure atmosphere: a collection of clouds, formed by caprice and prejudice, floats around it; its form is distorted by the refractions caused by these deceptive mediums: it requires time for the eye to fix itself, and to separate from the object every thing which is foreign to it. But, by degrees, just views will gain the ascendency. If the first efforts are not successful, the second attempts will be more fortunate; because the point of difficulty to be overcome will be better known. The plan which favours the greatest number of interests cannot fail at last to obtain the greatest number of suffrages; and the useful novelty, at first repelled with disgust, will soon become so familiar that its beginning will not be recollected.
5. Fifth condition---Method in the laws. An error in form in a code of law may produce, with respect to its influence upon expectation, the same inconvenience as incoherence and inconsistency. There may result from it the same difficulty of comprehension, and retention. Every man has his determinate measure of understanding: the more complex the law, the greater the number of those who cannot understand it. Hence it, will be less known; it will have less hold upon men; it will not occur to their minds on the occasions on which it ought, or, what is still worse, it will deceive them, and give birth to false expectations. Both the style and arrangement ought to be simple. The law should be a manual of instruction for every individual, and he ought to be able to consult it, under all his doubts, without requiring an interpreter.
The more conformable laws are to the principle of utility, the more simple will be their systematic arrangement.
A system founded upon a single principle might be as simple in its form as in its foundation. It only is susceptible of a natural arrangement and a familiar nomenclature.
6. Sixth condition---For the purpose of overcoming expectation, it is also necessary that the law should be present to the mind as about to be executed; or at least, no reason should be perceived to lead to a contrary presumption.
Does a man hope easily to escape from the law? He forms an expectation in a manner, opposed to the law. The law is therefore useless; it only retains its force for the purpose of punishment; and these inefficacious punishments are another evil with which to reproach the law. Despicable in its weakness, hateful in its strength, it is always bad, whether it reach the guilty, or they enjoy impunity.
This principle has been often disregarded in a striking manner: for example, when, under the banking system of the projector Law, people were prohibited from retaining in their own hands more than a certain sum of money, every one presumed upon a successful disobedience to this law.
A multitude of prohibitory commercial laws are defective in this respect. This multitude of easily eluded regulations forms, so to speak, an immoral lottery, in which individuals speculate in opposition to the legislature.
This principle forms a good reason for placing the domestic authority in the hands of the husband. If it had been given to the wife, the physical power being on the one side, and the legal power on the. other side, discord would have been eternal. If equality had been established between them, this nominal equality could not have been maintained, because, between two opposite wills, one or the other must necessarily turn the scale. The subsisting arrangement is therefore most favourable to the peace of families, because, by making both powers to act in concert, every thing has been done which is necessary for its exercise.
This same principle will be very useful in assisting in the resolution of some problems which have too much embarrassed lawyers, such as this: in a certain case, ought a thing found to be considered the property of the finder? The more easily he can appropriate the thing independently of the law, the more desirable is it, not to make a law which shall disappoint this expectation: or, in other words, the more easy it is to elude the law, the more cruel would it be to make a law which, appearing to the mind almost incapable of execution, could not fail to produce evil when it should chance to be executed. Let us illustrate this by an example: Suppose I find a diamond in the earth: my first movement will be to say this is mine; and the expectation of keeping it will naturally be formed at the same moment, not only from the inclination of the desires, but also from analogy with the habitual ideas of property: 1st, I have possession of it, and this possession alone is a good title, when there is no opposite title. 2ndly, Its discovery is due to me: it is I who have drawn this diamond from the dust, in which it was unknown to all the world, and where it was of no value. 3dly, I may flatter myself with keeping it without the knowledge of the law, and in opposition to the laws themselves, because it will be enough if I can hide it till I have a pretence for making it to be believed that I have acquired it by some other title. Hence, when the law would dispose of it in favour of some other person than me, it does not hinder this first movement, this hope of keeping it; and therefore, by taking it from me, it makes me experience that pain of disappointed expectation, which is commonly called injustice or tyranny. This reason would therefore be sufficient for giving a thing found to the finder, unless there be a stronger opposite reason.
This rule might therefore vary according to the chance which the thing naturally presents of its being kept without the knowledge of the laws: a vessel shipwrecked, that I have been the first to discover upon the shore---a mine---an island that I may have discovered, are objects respecting which, a previous law might prevent in me all idea of property, because it is not possible for me to appropriate them in secret. The law which refuses them to me, being of easy execution, would have its full and entire effect upon my mind. Therefore, upon consulting this principle alone, the legislator would be at liberty, either to grant or refuse the thing to the author of the discovery. But there is one particular reason in his favour: it is a reward given to industry; it tends to augment the general wealth. If all the profit of a discovery went into the public treasure, this all would be but little.
7. The seventh and last condition for regulating expectation is, that the laws should be literally understood. This condition depends in part upon the laws, and in part upon the judges. If the laws are not in harmony with the intelligence of the people---if the laws of a barbarous age are not changed in an age of civilization, the tribunals will depart by degrees from the ancient principles, and insensibly substitute new maxims. Hence will arise a kind of combat between the law which grows old, and the custom which is introduced, and in consequence of this uncertainty, a weakening of the power of the laws over expectation.
To interpret has signified entirely different things in the mouth of a lawyer, and in the mouth of another person: to interpret a passage of an author, is to show the meaning which he had in his mind; to interpret a law, in the sense of a Roman lawyer, is to neglect the clearly expressed intention, in order to substitute some other, by presuming that this new sense was the actual intention of the legislator.
With this manner of proceeding there is no security. When the law is difficult, obscure, incoherent, the citizen has always a chance of knowing it: it gives a blind warning, less efficacious than it might be, but always useful: the limits of the evil which may be suffered are at least perceived. But when the judge dares to arrogate to himself the power of interpreting the laws, that is to say, of substituting his will for that of the legislator, every thing is arbitrary---no one can foresee the course which his caprice may take. It is not enough to regard this evil in itself alone: how great soever it may be, this is a trifle in comparison of the weight of its consequences. The serpent, it is said, can cause its whole body to enter at the opening through which its head will pass: with regard to legal tyranny, it is against this subtle head that we should guard, for fear of shortly seeing displayed in its train all its tortuous folds. It is not only evil which should be distrusted, but good also, if derived from this source. All usurpation of a power superior to the law, though useful in its immediate effects, ought to be an object of dread for the future. There are limits, and narrow limits to the good which may result from this arbitrary power: there are none to the evil, there are none to the alarm, which may arise from it; the danger indistinctly lowers over every head.
Without speaking of ignorance and caprice, what facilities for prevarication! The judge, sometimes by conforming to the law, sometimes by becoming its interpreter, may always give right or wrong to whom he pleases: he is always sure to save himself, either by the literal, or by the interpretative sense. He is a conjuror, who, to the great astonishment of the spectators, draws from the same fountain bitter waters, or sweet, as he pleases.
This is one of the noblest characteristics of the English tribunals: they have generally followed the declared will of the legislator with scrupulous fidelity, or have directed themselves as far as possible by previous judgments, with regard to that still imperfect portion of legislation which depends on custom. This rigid observation of the laws may have had some inconveniences in an incomplete system, but it is the true spirit of liberty which inspires the English with so much horror for what is called an ex post facto law.
All the conditions which constitute the excellence of the laws, have so close a connexion, that the accomplishment of one alone supposes the accomplishment of the others: intrinsic utility, manifest utility, connexion, simplicity, cognoscibility, probability of execution---all these qualities may be considered as reciprocally cause and effect, the one of the others.
If the obscure system called custom were no longer suffered to exist, and the whole law were reduced to writing----if the laws which concern every individual were collected in one volume, and those which concerned certain classes were in separate collections---if the general code were universally circulated---if it were made, as among the Jews, a portion of the religious service, one of the manuals of education---if it were required to he engraven upon the memory before admission to the exercise of political privileges---the laws would then become truly known; every deviation from them would be sensible, every citizen would be their guardian; there would be no mystery to conceal them---no monopoly in their explanation---no fraud or chicane to elude them.
It is also necessary that the style of the laws should be as simple as their arrangement; that the language in ordinary use should be employed; that their formulas should have no scientific apparatus; and, in a word, that if the style of the book of the laws were distinguished from the style of other books, it should be by its superior perspicuity---by its greater precision---by its greater familiarity, because it is intended to be understood by all, and particularly by those least enlightened.
When one has formed a conception of this system of laws, and comes to compare it with those that exist, the feeling which results it far from being favourable to our existing institutions.
We must, however, distrust grievous declamations and exaggerated complaints, though the laws may be imperfect. He who should be so confined in his views, or so unreasonable in his ideas of reform, as to seek to inspire revolt or contempt against the general system of the laws, would be unworthy of attention at the tribunal of an enlightened public, who can enumerate their benefits---I do not say under the best, but under the worst of governments. Do we not owe to them all that we possess of security, property, trade, abundance? Do they not preserve peace among our fellow-citizens, the sanctity of marriage, and the gentle perpetuity of families? The good which they produce is universal---it is enjoyed every day and every moment: the evils which result from them are transitory. But the good does not make itself felt; it is enjoyed without being referred to its source, as if it were in the ordinary course of nature; whilst the evils are vividly perceived, and in describing them, there is accumulated into one moment, and upon one point, sufferings which are dispersed over a large space, and a long tract of time. There are abundant reasons for loving the laws, notwithstanding their imperfections.
Innovations in the laws should be made with great caution. It is not well to destroy everything, upon pretence of reconstructing the whole: the fabric of the laws may be easily dilapidated, but is difficult to be repaired, and its alteration ought not to be entrusted to rash and ignorant operators.
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