The laws which would be the best for England, the country from which the laws are to be transferred, being given, the next object of consideration is, By what principles are the variations necessary to be made in these laws, in order to accommodate them to the circumstances of Bengal, the country into which they are to be transferred, to be determined.
It has already been shown, that the end and business of every good law may, for shortness' sake, be reduced to this universal expression: the prevention of mischief. Now mischief, of whatever kind, is ultimately reducible to pain, or, what may be deemed equivalent to it, loss of pleasure. What, then? have different countries different catalogues of pleasures and of pains? The affirmative, I think, will hardly be maintained: thus far at least, human nature may be pronounced to be every where the same. If the difference lies not in the pains and pleasures themselves, it must lie, if any where, in the things that are, or are liable to be, their causes. In this point, in effect, we shall find it to lie, upon a little examination. The same event, an event of the same description, nay, even the same individual event, which would produce pain or pleasure in one country, would not produce an effect of the same sort, or if of the same sort, not in equal degree, in another.
The pathological powers of any exciting cause depend upon two particulars: 1. Upon the state and condition of the person himself, whose interests are in question. 2. Upon the state and condition of the external object, the action of which is the exciting cause. Now the circumstances the union of which constitutes the state and condition of a man, in as far as he is liable to be affected by an exciting cause, as well as those which constitute the state and condition of any object which is exterior to him, in as far as the action of such object is liable to become, with reference to him, an exciting cause, are the same circumstances of which the detail has been given under the title of Circumstances influencing Sensibility. In the catalogue, then, of these circumstances, we shall find the sum total of the principles of, which we are in search. the principles which, in our inquiry concerning the influence of place and time on matters of legislation, are to serve as a guide.
The plan upon which this inquiry is to be conducted is already, then, completely drawn: the great task of invention has been performed: what remains is little more than manual labour. To assist him in the execution of it, the legislator should be provided with two sets of tables. Those of the first set would exhibit a number of particulars relative to the body of laws which has been pitched upon for a standard, as contemplated in different points of view; for example, a table of offences; tables of justifications, aggravations, extenuations, and exemptions; a table of punishments; a table of the titles of the civil code; a table of the titles of the constitutional code, and so on. Those of the other set will be: a general table of the circumstances influencing sensibility; tables or short accounts of the moral, religions, sympathetic and antipathetic biases of the people for whose use the alterations are to be made; a set of maps, as particular as possible; a table of the productions of the country, natural and artificial; tables of the weights, measures and coins in use; tables of its population, and the like. These tables, if a man would work with accuracy, he should have, not metaphorically only, but literally and materially, before his eyes.
Upon the plan thus chalked out, I proceed to exhibit the alterations above spoken of, following the order of the matters in the original code which is supposed to be the standard. In this course it cannot, for the reasons assigned already, be expected that I should travel long: nor even in it that, I should glean up the whole of the matter as I go. All that can consistently be done, is to give a set of examples, which in point of order shall exemplify the method that has been chosen, and in point of multitude and of variety shall afford a tolerably satisfactory illustration of the principles under the direction of which they have been brought to light. I proceed, then, according to the order of the offences.
1. Simple Corporal Injuries.---These would not admit of many modifications, on account of difference of place. Mere corporal sensibility, of whatever differences it may admit in degree, is in kind much the same all the world over. Yet a wound in a hot and unhealthy climate maybe much more dangerous than the same wound would be in a temperate and healthy climate. Stripping a man stark naked, might cause death in Siberia, in circumstances in which it would be only play in the East Indies.
2. Irreparable Corporal Injuries.---Under this head it would be necessary to consider whether any, and what, indulgence should be given to the practice of emasculation. There would be more reason, it should seem, for such indulgence, where the services of persons thus mutilated are looked upon as a necessary guard to conjugal fidelity, than where the only use of them is to afford a somewhat higher gratification than could, perhaps, otherwise be procured to the ear of a musical dilettante.
3. Wrongful Confinement and Wrongful Banishment.---The effects of these two injurious acts are liable to great diversity, from differences in point of climate, manners, or religion. A night's confinement in the prison called the Black-hole, in the hot climate of Calcutta, after producing the most excruciating torments, proved fatal to nearly all the persons who were confined in it. In a winter's night in Siberia, the same number of persons might perhaps have undergone a confinement of the same length in a similar space, without any very remarkable inconvenience.
Confinement inflicted upon a Gentoo, might under certain circumstances be attended with the forfeiture of his caste; a possession to him much dearer than life: even banishment, if the effects of it were to seclude him from the necessary means of observing his religious ceremonies, might be attended with a similar effect. Either species of coercion might, at any rate, wound his conscience, inflicting thereby a simple mental injury of the severest kind. The Gentoos seem to stand at the summit of the scale of sensibility on this line. Descending, we find the Mahometan, the Jew, the Greek Christian, the Catholic Christian, all exposed to suffer from similar causes, according to their respective notions of religious duty: the Mahometan, by being hindered from performing his ablutions, or forced upon a diet inconsistent with his fasts; the Jew, in like manner, by being forced at any time into a forbidden diet; the Greek, by being put under a coercion of the same kind during any of his times of fasting; the Catholic, from a similar cause, or from the being prevented from hearing mass; even the pious Protestant might suffer in some degree, by finding himself deprived, for a length of time, of the comforts of a spiritual communion: these being so many circumstances demanding particular attention in the choice of punishments to be inflicted on such individuals.
4. Simple Mental Injuries.---Those sights, those discourses, which would give pain to the inhabitant of one country, would not, in every instance, be productive of a similar sensation to the inhabitant of another. This difference, too, like so many others, turns upon the point of religion. The sectary of every religion, at least the vulgar, that is, the great bulk of every sect, is exposed to the dread of invisible agents: but the names and attributes of these agents are different: the mind of a Gentoo may be filled with unspeakable terror from the apprehension of a visit from Peshush; while an ignorant Christian is afraid of witches, devils, ghosts, and vampires.
The votary of every sect may receive a cruel wound from any discourse or exhibition which tends to reflect contempt on any of the objects of his veneration. Protestants feel little in comparison but for Christ Jesus, and for that Blessed Spirit which is often figured as a dove. The Catholic, to the list of Divine Persons adds the Virgin Mary; and every martyr and every saint who is added to the calendar, makes an almost equal addition to the sphere of his sensibility. The Mahometan has his apostles besides Mahomet; and the Gentoo his deities besides Brama.
Among the higher classes of Mahometans and Gentoos, for a man to intrude himself into the presence of a married woman, would to the husband be an unpardonable injury; a bare request to see her, an affront. Such injuries, to which the European would be insensible, might in Asia, with perfect propriety be referred to the denomination now before us. More than this, the idea which it would be proper to annex to these several offences will vary much in different countries, in virtue of the various circumstances to which it will be respectively proper to give the effect of justification, exemption, extenuation, or aggravation.
The differences of castes in Hindostan furnish a copious stock of extenuations and aggravations to different classes of offences.
The extraordinary extent, if one may so say, of the surface of their moral as well as religious sensibility, exposes them to a proportional variety of injuries: hence so many peculiar grounds of defence and provocation. We are told, that ``on the Malabar side of the coast, if a Hallachore chance to touch a man of a superior tribe, he draws his sabre and cuts him down on the spot, without any check from his own conscience, or from the laws of his country.'' [Note]
A prejudice so strong, though altogether unjust and ferocious, would require great forbearance on the part of the legislator: it would require art to soften and to combat it. But it would be better to yield to it altogether for a time, than uselessly to compromise his authority, and expose his laws to hatred.
5. Semi-public Offences.---Different countries are subject to different calamities, according to their situation, climate, productions, means of defence, &c.: hence results a great variety in the laws of police.
In those countries which are nurseries of the plague, many precautions maybe requisite, which would be needless against that horrible distemper in other countries. Such precautions would give rise to a correspondent train of offences. It might become an offence, for example, to pass from one town to another; to enter a port; to leave a vessel before the prescribed time; or to disembark a bale of goods, &c.
In Great Britain, it could scarcely be in the power of any authority, short of the supreme, to do any thing in the way of engrossing or otherwise, towards producing or enhancing the calamity of famine. In islands of less extent and fertility, or under governments more liable to abuse, the danger might not be so ideal. In Bengal, the famine by which so many millions were swept off in the year 1769, was owing, let us hope, to no other cause than the inclemency of the seasons, or the insuperable difficulties attending a new system of government: but without legislative precautions, a similar effect might perhaps be produced by the abuse of delegated power in that distant member of the British Empire.
In mountainous countries, great mischief is sometimes done by falls of snow, which, in the neighbourhood of the Alps, are called avalanches, and by which whole villages are sometimes overwhelmed. A sudden concussion given to the air, by means so inconsiderable as the discharge of a pistol, will sometimes, it is said, be sufficient to give rise to a catastrophe of this sort. I forget what traveller it is who says, that on this account the discharge of fire-arms is made penal in some parts of that mountainous region.
In maritime countries, the coasts of which consist of a loose sand, there are often found different sorts of plants, chiefly of the rush kind, which, by the matted contexture of their roots, communicate to the soil a degree of tenacity, by means of which it is enabled to afford a more effectual resistance to the encroachments of the water. By the laws of various countries in Europe, the destruction of such plants is prohibited, under penalties which would be altogether useless in different situations.
In the Dutch and Flemish provinces, the extreme vigilance with which it is necessary to guard against the incursions of the sea, will naturally give occasion to various regulations, for which there would be no use in a more elevated situation.
In towns where the coldness of the climate requires that the houses should be substantial, and the dearness of ground-rent renders the style of building lofty, the danger that may attend the fall of such as happen to be ruinous, gives occasion to regulations which would be unnecessary in those sultry regions where an ordinary house is little more than a large umbrella.
In some parts of Spanish America, the fear of earthquakes prevents the inhabitants, it is said, from giving to their buildings that degree of solidity which, on other accounts, they would deem eligible. In such hazardous situations, the superintending care of the legislator might, perhaps not improperly, second the prudence of the individual.
In hot climates, the letting into a country a mass of stagnant water might, in certain situations, be productive of an injury to public health, from which the inhabitants of more temperate regions are in a great measure secure.
Sicily and other parts of Italy are exposed to a wind called the Sirocco, which, by the excessive heat and languor it occasions, is extremely troublesome. Certain parts of the East are occasionally afflicted with a wind called Samiel, the influence of which is said to be almost instantaneously fatal. If, in any of those countries, there was a wood, or a hill, or even a wall, which could in any degree answer the purpose of screening the neighbourhood from the blast, the removal of such a fence might be guarded against by penalties which, in our temperate regions, would have no such utility to justify them.
In Arabia, and other countries where water is scarce, the exposing or dissipating the water of a single spring might expose thousands to perish with thirst, and render the communication between one district and another almost impracticable.
In Russia, the destroying or putting down a few inns might be productive of effects almost equally mischievous. In England, hundreds of much better houses of the like sort are put, down every year, without occasioning the least sensation.
6. Self-regarding Offences against the Person.---In the northern climates, drunkenness makes men stupid: in the southern, mad: in the one, it is folly; in the other, wickedness. To speak at random, in the one situation, penalties against drunkenness should be slight; in the other, they should be severe. In Mahometan countries, the strict prohibition supposed to be laid by the Koran against the use of intoxicating liquors, makes some amends perhaps, for the mischievous effect of that barbarous religion.
7. Offences against Reputation. These Offences vary according to the state of opinions and manners. Among other traits which discover the manners of the ancient Greeks, we learn, from what Xenophon relates regarding himself, that crimes against nature could be esteemed but a joke. Even now, wherever the Mahometan religion prevails, such practices seem to be attended with but little disrepute. In England, not only the letter of the law makes them capital, as in other parts of Europe, but the law is carried into execution with a degree of zeal which no other species of criminality is sufficient to inspire. But were it even altogether unpunishable by law, a groundless imputation of this nature would be an injury scarcely less atrocious than at present, since the consequence of being reputed guilty would be attended with a degree of infamy which can be compared to nothing so properly as that which attends forfeiture of caste among the Hindoos.
In England, to say of a farmer that he had sown rye-grass and clover in the same field, would be of as little prejudice to him, as to say that he had sown either of those plants alone. In Judea, while the Mosaic institutions were in vigour, such an imputation would have been a very serious injury: Levit. xix. 19; Deut. xxi. 9, 10, 11. A Spanish grazier would as soon hear of his having bred a mule, as of his having bred a horse: the purity Of a Jewish grazier would have been shocked at the imputation.
Universally, the degree of damage which a man sustains by an act of defamation, depends not at all upon the aspect borne by the dictates of utility to the practice he is charged with, but to the aspect which is borne to the practice by the political, moral, and religious sanctions: by the moral, principally and immediately; and by the other two, chiefly in virtue of the degree in which the moral is subject to their influence.
8. Offences against the Person and Reputation together.---It is evident enough, that the idea annexed to the denomination of a lascivious injury must be liable to considerable variation, according as the manners of the people, in this respect, are more or less reserved. Different parts of the female body are veiled in different countries with different degrees of care. In Asia, the whole person is invisible. In Sparta, the young women appeared in public with an open and flowing robe. Among ourselves, propriety as to dress changes with the fashions.
The idea of obscenity, how strange soever it may appear, seems not to be invariably annexed to the same parts and the same functions. Among lettered nations, indeed, men's notions in this respect seem to be pretty uniform: but among unlettered nations, however civilized in other respects, the case is different. In Otaheite, the few notions of modesty which are discoverable, seem to be transferred from the functions by which the species is continued, to those by which the individual is preserved. Atkins the traveller observed an instance of this among a tribe of negroes: as often as the king drank two of his attendants ``held up a cloth before his face, that he might not be seen.'' Wine however, is no friend to modesty: when his majesty had ``got drunk, this respect was laid aside.'' The same notions of delicacy have been established in other African tribes, if we may give credit to several more ancient travellers, who are quoted by Barbeyrac in his Notes on Puffendorff (B. VI. chap. i. §31.): ``The inhabitants of Senegal'', they tell us, ``are as much ashamed of their mouth, as of any other part of the body: and therefore they ordinarily go with a cover upon it, which they only take off for the purpose of eating.'' This custom may perhaps derive its origin from some superstition. The inhabitants of the Maldives carefully hide themselves during their repasts, fearful lest their food should be charmed whilst they are eating it.
9. Offences against Property.---It is evident that these are liable to infinite diversity, in as far as the events, which it is expedient should be admitted into the list of those constitutive of title, are liable to differ. Other differences will necessarily arise, from a thousand sources, too tedious to particularize: to enlarge upon this head would be impossible, without prematurely engaging in the intricacies of the civil branch of jurisprudence.
The name of usury will in different countries, according to the greater or less plenty of money, be given to contracts of very different descriptions: in England, six per cent. is deemed excessive; in Bengal, twelve per cent. is deemed moderate; it is the usual interest, just as it was among the ancient Romans.
The offence of extortion will require to be differently defined in different political situations. If a clerk in a merchant's countinghouse were to present his compliments, and state to the prime minister of England, that a present of money would not be unacceptable, the statement would be laughed at. But such has not always been the case in Bengal: an equally civil and cautiously worded message, directed to Mahomed Reza Pawn, appears not have been altogether unattended to.
The kind of government occasions a great variety in the definition of this kind of offence. Greater precautions are requisite to protect the subjects in a conquered country, or under an absolute government, than among the citizens of a free state. On the other hand, a conquering republic is more oppressive to the conquered country than a conquering monarch: a monarch may be rapacious; but he is interested in preventing the exactions of his officers: in a republic, on the other hand---in the Senate of Rome, for example---there existed a tacit collusion among those that possessed authority.
Some religious professions expose their followers to pecuniary extortion: those of the Mahometans and Hindoos are particularly subject to this abuse; but they have not equalled the Catholic church in this particular, which, whilst preaching poverty, nearly succeeded in becoming the sole proprietor of all property. In Protestant countries, this field of extortion has been shut up: if the priest assists his flock in the way to heaven, it is well; but he is not believed to possess the power of preventing them going thither without him.
10. Offences against Condition.---The powers annexed to conditions of the domestic kind, are constituted by the justifications annexed to various offences; or, to speak more plainly, by exceptive clauses subjoined to the laws establishing the circumstances constitutive of the parties' title to the condition in question, as circumstances justificative of such acts as, were it not for such exceptions, would be unlawful: these differ in different countries.
In most Christian countries, it must be some very extraordinary behaviour on the part of a wife, that can render it allowable in a husband to keep her under confinement: to a Mahometan (I speak always of those who are rich enough to live in this style) not to be allowed to keep his wives in confinement, would be intolerable.
The matrimonial condition is not the same in reality in Mahometan and Christian countries. Here, the woman contracts with her husband nearly upon a principle of equality; there, marriage is impressed with a character of servitude: here, the woman preserves her liberty; there, at least among the more opulent, she is kept in a state of seclusion. Among Christians, polygamy consists in having more than one wife; among Mahometans, in having more than four wives: among Asiatics, the husband is more the master than the guardian of his wife; in Europe, the husband is as much the guardian as the master.
After the death of her husband, the wife does not regain her liberty as among us; in Hindustan, among the Mahometans at least, the next heir of the deceased husband becomes the guardian of the widow; and, without the privileges of the husband, he succeeds to his authority as her jailor. [Note]
I have said, among most European nations: in Spain, we find a slight tincture of Asiatic manners, left by foreign conquerors, after the religion that seems to have introduced them had been extirpated; a tincture originally foreign, and now almost worn out: in Russia, we find manners originally Asiatic, softening by culture into European.
The examples thus given will suffice to show the manner in which the principles ought to be applied; with what care it is necessary to proceed, that established opinions may not be violently shocked; and in what manner the laws may be adapted to the imperious, and oftentimes unchangeable circumstances of the people to be governed.
The subjects of public offences, of constitutional law and procedure, have not yet been glanced at; nor will it be necessary at present to pursue them. The influence of local circumstances is generally recognized as to the two former; and with regard to all of them, it would not be easy to bring the points of difference to view in so striking a manner.[Forward to:]