femblance to a philofopher of the prefent times, than to one of the old fcholaftic doctors who fubftituted clalification for reafoning, and looked upon the ten categories as the most useful of all human inventions. Their diftinctions were generally real as well as his, and could not have been made without the mifapplication of much labour and ingenuity; but it is now generally admitted that they are of no ufe, either for the promotion of truth, or the detection of error; and that they only ferve to point out differences that cannot be overlooked, or need not be remembered. There are many differences and many points of refemblance in all actions, and in all substances, that are abfolutely indifferent in any ferious reafoning that may be entered into with regard to them; and though much induftry and much atcutenefs may be difplayed in finding them out, the difcovery is just as unprofitable to fcience as the enumeration of the adverbs in the creed, or the diifyllables in the decalogue, would be to theology. The greater number of Mr Bentham's diftinctions, however, are liable to objection, because they state, under an intricate and technical arrangement, thofe facts and circumftances only that are neceffarily familiar to all mankind, and cannot poffibly be forgotten on any occafion where it is of importance to remember them. In perusing his book, we frequently found it neceffary to beftow a good deal of attention upon a diftinction or propofition that, when it was fully apprehended, turned out to be abfolutely felf-evident or obvious; and indeed we can scarcely remember any one of his practical maxims that can poffibly be conceived to be overlooked for a moment by the legiflatures for whofe illumination this work is intended. If bad laws have been enacted, it certainly is not from having forgotten that the good of fociety is the ultimate object of all law, or that it is abfurd to reprefs one evil by the creation of a greater. Legiflators have often bewildered themselves in the choice of means, but they have never fo grofsly mistaken the ends of their inftitution as to need to be reminded of these apparent truths.

If there be any part of Mr Bentham's claffification that can bei fuppofed to affift us in appretiating the comparative value of pleafures and pains, it must certainly be his enumeration of the. circumstances that affect the fenfibility of individuals. Even if this table were to fulfil all that it promifes, however, it would tillleave the fyftem fundamentally deficient, as it does not enable us to compare the relative amount of any two pleasures or pains to individuals in the fame circumstances. In its particular ap plication, however, it is no lefs defective; for though we are told NOL. IV. NO. 7.

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that

that temperament, intelligence, &c. fhould vary the degree of punishment or reward, we are not told to what extent, or in what proportions, it fhould be varied by thefe circumftances. Till this be done, however, it is evident that the elements of Mr Bentham's moral arithmetic have no determinate value, and that it is perfectly impoffible to work any practical problem in legiflation by the help of them. It is fcarcely neceffary to add, that even if this were accomplished, and the cognisance of all these particulars diftinctly enjoined by the law, the only effect would be, to introduce a puerile and fantaftic complexity into our fyftems of jurifprudence, and to incumber judicial procedure with a, multitude of frivolous obfervances. The circumftances, in confideration of which Mr Bentham would have the laws vary the punishment, are fo numerous and fo indefinite, that it would require a vast deal more labour to afcertain their exiftence, than to establish the principal offence. The firft is Temperament; and in a cafe of flogging, we fuppofe Mr Bentham would remit a few lashes of the fentence to a fanguine and irritable delinquent, and lay on a few additional ftripes on a phlegmatic or pituitous one. But how is the temperament to be given in evidence? or are the judges to aggravate or alleviate a punishment upon a mere infpection of the prifoner's complexion? Another circumftance that should affect the pain, is the offender's firmness of mind; and another his ftrength of understanding. How is a court to take cognifance of thefe qualities? or in what degree are they to affect their proceedings? If we are to admit fuch confidera tions into our law at all, they ought to be carried a great deal farther than Mr Bentham has indicated; and it fhould be expreffed in the ftatutes, what alleviation of punishment fhould be awarded to a culprit on account of his wife's pregnancy, or the colour of his childrens hair. We cannot help thinking that the undiftinguishing groffnefs of our actual practice is better than fuch foppery. We fix a punishment which is calculated for the common, average condition of those to whom it is to be applied; and, in almost all cafes, we leave with the judge a difcretionary power of accommodating it to any peculiarities that may feem to require an exception. After all, this is the most plaufible part of Mr Bentham's arrangements.

In what he has faid of the falfe notions which legiflators have frequently followed in preference to the polar light of utility, we think we difcover a good deal of inaccuracy, and fome little want of candour. Mr Bentham muft certainly be conscious that no one ever pretended that the mere antiquity of a law was a fufficient reafon for retaining it in fpite of its evident inutility;

but

but when the utility of parting with it is doubtful, its antiquity may fairly be urged as affording a prefumption in its favour, and as a reafon for being cautious at least in the removal of what must be incorporated with fo many other inftitutions. We plead the antiquity of our conftitution as an additional reafon for not yielding it up to innovators: but nobody ever thought, we be lieve, of advancing this plea in fupport of the ftatutes against witchcraft. In the fame way, we think there is more wit than reason in afcribing the errors of many legiflators to their being mifled by a metaphor. The metaphor, we are inclined to think, has generally arifen from the practice which Mr Bentham would de rive from it. The law of England refpects the fanctity of a free citizen's dwelling, fo much, as to yield it fome privilege; and therefore an Englishman's houfe is called his caftle. The piety or fuperftition of fome nations has determined that a criminal cannot be arrested in a place of worship. This is the whole fact the ufage is neither explained nor convicted of abfurdity, by faying that fuch people call a church the house of God. If it were the houfe of God, does Mr Bentham conceive that it ought to be a fanctuary for criminals? In what is faid of the fictions of law, there is much of the fame mifapprehenfion. Men neither are nor ever were mifguided by these fictions; but the fictions are merely certain quaint and ftriking methods of expreffing a rule that has been adopted in an apprehenfion of its utility. To deter men from committing treafon, their offspring is affociated to a certain extent in their punishment. The mo tive of this law is plain enough; and calling the effect corruption of blood,' will neither aggravate nor hide its injuftice. When it is faid that the heir is the fame perfon with the deceafed, it is but a pithy way of intimating that he is bound in all the obligations, and entitled to all the rights of his predeceffor. That the King never dies, is only another phrafe for exprefling that the office is never vacant; and that he is everywhere, is true, if it be lawful to fay that a perfon can act by deputy. In all thefe obfervations, and in many that are feattered through the fubfequent part of his book, Mr Bentham feems to forget that there is fuch a thing as common fenfe in' the world, and to take it for granted, that if there be an opening in the letter of the law for folly, mifapprehenfion, or abuse, its minifters will eagerly take advantage of it, and throw the whole frame, of fociety into diforder and wretchednefs. A very flight obfervation of the actual bufinefs of life might have taught him, that expediency may be readily and certainly difcovered by those who are interested in finding it; and that in a

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certain ftage of civilization there is generated fuch a quantity of intelligence and good fenfe as to difarm abfurd inftitutions of their power to do mischief, and to administer defective laws into a fystem of perfect equity. This is the grand corrective which remedies all the errors of legiflators, and retrenches all that is pernicious in prejudice. It makes us independent of technical fyftems, and indifferent to fpeculative irregularities. He who could increafe its quantity, or confirm its power, would do more fervice to mankind than all the philofophers that ever fpeculated on the means of their reformation.

As the fubfequent part of Mr Bentham's work is really in a confiderable degree what it profeffes to be altogether, a detailed application of the preceding principles to the codes of civil and . of criminal law, it will be lefs neceffary for us, after fo full an examination of thofe principles, to fpend much time in the analysis of their application. There are fcattered throughout the whole book a great number of profound remarks and acute and valuable fuggeftions: but many things are advanced with confidence, that appear to us to be very queftionable; and the general plan and diftribution of the fubjects feems to be both artificial and imperfect.

Mr.Bentham's paffion for claffification and diftinctions, ma nifefts itself in a very ftriking way in the introductory chapter to the fecond part of his work, where he enumerates all the divifions of which law is fufceptible, and delights himself with many puzzling remarks on the relative completenefs of a diftri bution into internal and external law-civil and criminal-temporal and fpiritual-fubftantive and adjective-general and particular-punishing and rewarding, &c. &c. &c.

In the following chapter we meet with a perplexity which, though more ingenioufly produced, appears to us to be equally gratuitous. Mr Bentham for a long time can fee no diftinction: between civil and criminal jurifprudence, and infifts upon it, that rights and crimes neceffarily and virtually imply each other. If I have a right to get your horfe, it is becaufe it would be a crime for you to keep him from me; and if it be a crime for me to take your horfe, it is because you have a right to keep him. This we think is very pretty reafoning; but the diftinction between the civil and the criminal law is not the less fubftantial and apparent. The civil law is that which directs and enjoinsthe criminal law is that which punishes. This is enough for the legiflator, and for thofe who are to obey him. It is a curious inquiry, no doubt, how far all rights may be confidered as the Counterpart of crimes, and whether every regulation of the civi

code

code neceffarily implies a delict in the event of its violation. Or this head there is room for a good deal of speculation; and in our opinion Mr Bentham pufhes the principle rather too far. There feems to be nothing gained, for inftance, either in the way of clearness or confiftency, by arranging under the head of criminal law thofe cafes of refufal to fulfil contracts, or to perform obligations, for which no other punishment is provided but a compulsory fulfilment or performance. This is merely following out the injunction of the civil code, and cannot, either in law or in logic, be correctly regarded as a punishment. The proper practical teft of a crime, is where, over and above the reftitution of the violated right (where that is poffible), the violator is fubjected to a direct pain, in order to reprefs the repetition of fuch offences.

In conformity, however, with his notion of the neceffary reciprocation of crimes and rights, Mr Bentham carries his idea of the extent and dominion of the law a great deal farther than any other writer we have met with. As crimes are clearly the creatures of law and pofitive inftitution, fo, he holds, muft rights be alfo; and accordingly, he does not fcruple to affert, pofitively and exprefsly, that it is from the law alone that we enjoy the right of getting up or lying down, of walking out into the fields, or of moving our hands to our heals. This paradox he explains, by ftating that we can only be faid to have a right to do thefe things, because the law has made it a crime for any one to difturb us in doing them. By the fame procefs of reafoning it may be fhewn, that it is from the law alone that we derive the right of breathing or of living. But this view of the matter is evidently quite forced and unnatural. The law can only be faid to confer thofe rights which could not be exercised without its protection; and in this way, perhaps, all rights of property, of privilege and inheritance, and all claims upon formal contracts, may be faid to owe their exiftence to law, as they would undoubtedly be defeated by an abfolute abrogation of all fuch authoritative rules. But with regard to thole acts that are implied in the very being of man, and which we cannot ceafe to exercife while we continue to exift, it seems evident that we derive our right to exercise them from a ftill higher authority; and that kuman inftitutions, though they may punish the violator of the right, can never pretend to have created it. Mr Bentham fees the act and the authority of law in every thing, becaule, he fays, every thing is either enjoined by it, or permitted with a prohi bition against its being interrupted. We, on the other hand, only recognise the operation of law where it interferes with human inclinations or propenfities. We fee it ouly where it

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