Promulgation

Promulgation in Constitutional Law

From the Comparative Constitutions Project: Promulgation is the act of formally proclaiming new legislation to the public. This occurs when the law receives final formal approval.

Promulgation of the Laws and Law Reforms in Jeremy Bentham´s Work

Section IV, titled “Law Reform” of the book “Introduction to the Study of the Works of Jeremy Bentham”, by John Hill Burton:

The promulgation of the Laws is a prominent subject in a great proportion of Bentham’s works. He held that a rule of action which the person whom it was to affect could not make himself acquainted with the purport of, was worse than no rule — a despotic arrangement for enabling one man to be cruel to another — a project for catching people in traps, for the advantage, or it might be the amusement, of those who set them. Speaking of the common law of England, he says, “Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and then you beat him for it.”‡ The defects which the English system exhibits in this respect, have had their origin in the neglect of the utilitarian principle — the neglect, in the preparation and execution of the law, of the very object for which those who make it would admit that it should be made — the good of the community. The ultimate object, for instance, of the criminal law, is to do good to mankind by the prevention of crimes. The immediate object is the punishment of individuals committing crime. In the discharge of this latter object, the former and ultimate one has been frequently forgotten. A man commits a breach of the law — he is punished, and all concerned consider they have done their duty, and trouble themselves no further. The criminal says, that if he had been aware of the existence of such a law he would not have broken it; but he is answered by the old adage, ignoratio juris neminem excusat. Presuming him to speak the truth, is it not an immediate inference, that it would have been better had the offence never been committed at all, than that, having been committed, the perpetrator is punished?

It is a feature, too, of unknown laws, that they have to fight society by detail. When it is known to the public at large that the commission of a given act will be met by a specific punishment, they, in general, take the alarm collectively and abstain from it. They know, perhaps, that if they all break the law in a mass, they could not all be punished; but, like Fielding’s mob confronting a man with a cocked pistol, no one of them is assured that he may not be the victim. But a hidden law is a poignard — none know of the presence of the deadly weapon but those who are stabbed by it, and their immediate neighbours. Such a law will often exhaust the power of its administrators before it produces any palpable effect. There are abundance of victims, but there is little proportional amendment.

There are two means by which the laws may be brought within the reach of those whom they bind. The one is by making them in themselves simple, concise, and uniform: the other by adopting adventitious means of promulgating them. In both respects there are many defects in the law of England. The common law, which is the result of the traditionary lore of ages, is in the position of the books of the Roman law before they were digested under the superintendence of Tribonian — a mass which defies the industry of any ordinary lifetime to master its contents. Its bearing upon any given point, instead of being contained in an enunciated command by the legislature, is to be solved by the interpretation of multitudes of unauthorized comments, or conflicting decisions. It possesses the additional evil, that, even when its tenor seems to be comprehended, no man can tell whether what he has so come to the understanding of be in reality the law; for it has received no authoritative sanction from any legislative power, and is only the opinion of certain unauthorized commentators.

The other department of the law — the statute law — is indeed the command of the authorized legislature: but it is a command perplexed by unintelligible language, confused, gigantic in its proportions, and deficient in internal facilities for reference and discovery. When a law is to be altered, there is an act passed, “to amend an act,” &c.; when there is another alteration, there is an act passed, “to amend an act — to amend an act,” &c., &c.* There is a popular method of referring to acts of Parliament as being such a chapter of such a session (e.g. the act 57 Geo. III. c. 101); but when reference is made in the amending statute to that which is amended, there is no such abbreviated mode adopted — the act is described by its title, so that it can only be found by a search among all the acts of the session. In popular language too, the acts are divided into sections, which are numbered consecutively: but this facilitation is unknown in law, and consequently the section of an act, when an alteration of it is made by any subsequent act, is only referred to by vague description. In one session of Parliament there are frequently upwards of a hundred acts passed, and many of these will be found to contain upwards of a hundred sections; yet when, in a future session, there is an alteration made on one of these sections, it is only singled out from the mass in the vague manner above described. It will generally happen, that some members of the official establishment chiefly connected with the operation of any series of statutes will have mastered their contents; while the public in general are profoundly ignorant of the whole subject, or know it only in so far as they may have suffered by making mistakes. Yet there are collections of statutes so extensive, that it may be questioned if even those official persons whose peculiar duty it should be to enforce them are well acquainted with their contents. There are at this moment (1842) upwards of 130 statutes, more or less in force, in relation to the Stamp Laws.

The main remedy proposed by Bentham for the evils arising out of the confusion and bulkiness of the laws, is in codification — in a general revision of the existing laws, the rejection of the antiquated and useless portions, (for there are many acts, still part of the law, which are not enforced, solely because our civilized age affords no machinery for executing them, or because public opinion would set too strongly against any man who would have the barbarity to put them in force,) and the reduction of those parts which should be preserved, to a clear order, and to precise and intelligible language. The objections to this project are not in the form of argument, but in the simply negative shape of the neglect to perform that of which the utility is so clearly proved. The good to be accomplished would be great; but the labour too would be great: and no Atlas has been found among ministers of state to put his shoulders to the task. Nor does there seem, indeed, to be any individual on whom the responsibility of the non-performance of this mighty task can be specially thrown — it is simply a great and difficult project, for the public benefit, unperformed. It is true, that Bentham did himself offer to undertake this task: that he left behind him fragments of its execution in almost every branch of the law, and that he completed the constitutional branch in a shape rendering it fit for use, whenever those who have the power shall have the inclination to adopt it. But it was, perhaps, still less to be expected, that any code of his own fabrication should have been accepted of, than that the justice of his earnest pleadings, in favour of a simplification of the law, should have been admitted, in some attempt to prepare a code under other auspices. A code, drawn up by Bentham, must have not only received the advantages of his clear arrangement and accurate legislative style, but must, in substance, have conformed with all his opinions of what the law ought to be. It would not have been the laws of England consolidated or embodied in a code, but a new code of laws, prepared on the utilitarian system. It was one thing to admit his reasoning in favour of a code, but another and a totally different thing to admit that the code ought to embody in it the principles of the utilitarian philosophy. The Constitutional Code is, for instance, a system of government arrangements adapted to a republic. Of the many who might be favourable to codification, few might be republicans, and still fewer would be ready to attempt to achieve a republic in this country. The Code Napoleon was the adoption of Bentham’s opinion in favour of codification; but the great patron of that measure, while acknowledging the advantage of having the laws simplified, would have been among the last men in the world to permit Bentham to prepare the substance of the laws which were to be so reduced to order.

It is true, that Bentham would not have been deterred by restrictions and limitations from devoting his time to the service of the public as a legal draftsman. If he had been directed, by those in power, to simplify any branch of the law, reserving our feudal institutions, and reserving, likewise, any other peculiarities in the laws, which the government had come to the resolution to leave unchanged — while regretting the barbarism which adhered to machinery, in his eyes antiquated and cumbersome, he would have been ready to devote his time and talents to the task of fitting them for such good uses as they were capable of accomplishing. He exemplified this disposition in his Project of a General Register of Real Property, communicated to the Real Property Commissioners. In his correspondence with foreign countries, indeed, he showed how ready he was to turn the least promising institutions to use; and, in the case of the Tripoli papers, we find him suggesting a series of arrangements, by which the protection of personal liberty may be made consistent with an Eastern despotism, and a limited toleration with the principles of Mahommedanism.*

But the principle of codification has not been without some practical concessions to its utility by our legislature. The statute penal law of England has been brought into a state far more nearly resembling a code than it was when the author wrote the greater part of his attacks on it. Improvement and codification have here gone hand in hand; and the system, perhaps, only waits for the removal of some of its relics of barbarism, to be finally condensed into a code, as concise and intelligible as the plan on which our Acts of Parliament are drawn will admit of. A further concession to the principle is to be found in the consolidation of the Customs and Excise laws, and the laws regarding shipping, which are intimately associated with them. The plan taken, with regard to the far more complicated department — the Custom House Laws, was this. In 1825, search was made in the Statute-book for all existing acts relating to the customs, and they were repealed in the mass. It would appear that the duty of deciding what statutes did, and what did not bear on the subject of the customs, was too onerous to be undertaken even by those who had all the appliances and ends of the government in their favour; for when the Customs laws were again reviewed in 1833, it was found necessary to pass a general repealing clause as to, “All acts and parts of acts relating to the Customs,” without any farther attempt to enumerate them,† (3 & 4 Will. IV. c. 50.) The ground being thus cleared, a Custom House Code was created, in ten statutes, each embracing some distinct department of the Customs and Navigation Law. The cumbrous form of our statutes, and their incapacity to provide any system of division and arrangement, prevented this code from approaching to the state of order and intelligibility which its author, Mr. Hume, seems to have been anxious to achieve for it; but he endeavoured to compensate as far as possible, by marginal headings and an indicative rubric, for the necessarily unarranged substance of his acts; and these Customs acts are the only statutes which are divided into compartments bearing a resemblance to the division of a literary work into chapters. In the interval down to the year 1833, many additions had been made to the Customs laws; and, to prevent confusion, all these additional laws, along with the consolidated Statutes of 1827, were repealed, and new consolidated statutes were constructed from their fragments; thus rendering it unnecessary for the searcher among the customs laws, to go farther back than the year 1833.*

While urging the utility of a general code, and the importance of a complete or partial reconstruction of the law, Bentham did not lose sight of the immediate practical advantages of an improvement in the system of drawing the statutes so as to make them more intelligible to the public, and consequently more serviceable as rules of action. In an examination of the vices of the existing method of drawing acts of parliament, he found that there was a departure from the common colloquial and literary language of the country, which, instead of diverging from it in the direction of precision and conciseness, led to vagueness and verbosity. The departure from the ordinary forms of expression was thus an evil, not compensated by any advantage in the shape of a more scientific style. He found that there was unsteadiness in respect of expression, occasioned by a want of fixed words having definite ideas connected with them. The draftsman, not having in his mind any distinct nomenclature, overloads his work by employing a number of words to mean the same thing, lest, if he should restrict himself to one, he might choose one which did not fully embrace the meaning intended. In this manner, that which could have been well accomplished by the use of one word with a determinate meaning, is imperfectly accomplished by the use of several words without any fixed signification. Thus, there frequently occur such pleonasms as “all the powers, authorities, methods, rules, directions, penalties, clauses, matters, and things,” “use, exercise, apply and put in execution,”† &c., all referring to the same thing, but by their number rendering what they refer to more vague instead of more clear. It is an additional defect referable to this source, that when the same thing is thus mentioned more than once, the collection of words by which it is referred to does not happen to be precisely the same on each occasion, and thus dubiety is created in the mind of the reader.

It was found that clauses of acts, instead of consisting of separate enactive propositions each with its own verb, constituted each of them, a series of sentences heaped together, the same verb serving for a variety of propositions. The bad effects of this system are two — it makes the sentence too long for full and clear apprehension by ordinary intellects; and it renders it liable, from its complexity, to dubiety and ambiguity of interpretation.

In an English act of Parliament, in each section the connexion given to the matter is commonly such, that when once the mind has entered upon it, no repose is to be had till it has reached the end of it: no, nor then neither, unless such be the strength of its grasp as to give assurance of its retaining, in a full and distinct point of view, the whole mass of the matter which, parcel after parcel, it had in the course of its progress through the section been taking up.

So much worse than absolute redundancy is longwindedness, that if in any instance, under the oppression produced by longwindedness, it were deemed necessary to seek relief — relief would in many, and indeed in most instances, scarcely be to be found on any condition other than that of adding to the number of words. . . . .

Another imperfection of the first order, to which this imperfection of the second order will, whether constantly or not, be naturally and frequently conducive, is bulkiness. As the entanglement runs on, the obscurity thickens — as the obscurity thickens, it attracts more and more the attention of the penman:— fearing lest the mass should grow too involved, and through much entanglement too obscure for use, he sets himself to disentangle it — to point out this or that distinction in the provision meant to be made respecting the subjects thus involved. But as by words it was that the matter was entangled, so it is only by words that the disentanglement can be effected, or so much as aimed at: and thus it is, that while increase is given to obscurity, so is it to bulkiness.‡

So much with regard to those internal qualities in the construction of the laws, which might serve to make them accessible as a rule of action. An external means of accomplishing the same end, is, in the Promulgation of the laws when they are enacted, among those whose obedience they demand. Bentham looked upon this service as one of the most unexceptionable in which the public money could be employed. He considered that every practicable means should be adopted for bringing before the eyes of the citizen the laws he is called on to obey, and that, in their distribution, profusion is the safer error. He thought that so much of instruction in the laws as could be conveyed to the mind in youth should be taught in schools, and that the books in which the laws are printed, if not given gratuitously, should be purchaseable at a merely nominal price. He proposed that the portions of the law which affected particular classes of persons should, separately from the general body of the law, be distributed among those whom they particularly affected. Thus, each soldier on enlistment should receive a copy of The Soldier’s Code,* and each mariner on joining his profession should receive a copy of The Seaman’s Code.† An individual conducting a trade subject to the operation of the Revenue laws, should, on the same principle, have a copy of The Revenue Code.

He proposed that each separate description of contract should have a species of paper set apart to be used in embodying its terms; and it was one of the services to be accomplished by this arrangement, that the paper should contain on its margin, an abridgment of the law relating to the contract. In markets and other places of public resort, the peculiar regulations of which might be of sufficient brevity for being so promulgated, the old Roman system should be adopted, of having them legibly set forth on tables adapted to public inspection. In Courts of justice, the forms of Procedure, and the respective duties of the Judges, the Officers of Court, the Lawyers, Parties, Jurors, and Witnesses, should be exhibited in the same manner.‡

To enable the public the better to comprehend the full tenor and object of the laws when promulgated, he proposed that they should be accompanied by a Rationale or series of reasons. The necessity of adopting such a course would, he maintained, make the laws themselves more rational; for legislators, being bound to give reasons to the public, must have reasons to give, and would not be likely to frame laws on the dictate of caprice or tyranny. An acknowledgment of the principle is to be found in the Preambles of Acts of Parliament; but as in this case there is only one general reason given for the tone, as it were, of the whole statute, and not a reason for each individual enactment, the check is, necessarily, very imperfect. Having the reasons along with the laws, the public, it is believed, would not only have more confidence in the justice of the enactments, but, seeing their use, would have a guide to honest and sincere obedience, which the simple terms of the command conveyed in the law itself might fail to provide them with. There have been many breaches of law that would never have occurred, if those who had committed them had been reasoned into the opinion that the laws were just.*

The principles on which the judicial establishment of a country should be founded, occupied Bentham’s mind from an early period of his life to the end of his days. In 1790, he published the draught of a Code for the organization of the Judicial establishment in France;† and the arrangements there suggested only differ in their being less fully developed, from those which he embodied in the Constitutional Code,‡ at different times subsequently to the year 1820. In both, there is a system of Local courts, for the purpose of bringing justice as near as it can practicably be brought to every man’s door; the general principle of admeasurement being such as will allow every inhabitant of a district to go to and return from the Judgment seat in one day. In both works, and in almost all his numerous works on Law Reform, he desired that justice should be administered in each court by a single judge, for the reasons of which a sketch has been given in the preceding Section in connexion with responsibility (see p. 50-51.) He thought that the habits of a practising lawyer, keeping the mind in a constant state of active partisanship, did not form a suitable school for judges, whose duty it is to hold the scales of justice with a steady hand. On the other hand, he considered, that permitting any class of men, not trained to the study of law and the weighing of evidence, (e. g. justices of peace and municipal magistrates,) to administer justice, was nothing better than a permission to one section of the community to sport with the property and liberties of all others. His own plan contemplated the education of a class of lawyers for the bench. He suggested the appointment of deputes to the regular judges; and, through the instrumentality of this arrangement, he would provide for those who have been induced to fix upon the bench as their profession, getting an introduction, and the opportunity of practice and experience, as assistants in the lowest grade, rising thence according to their abilities and exertions.§ He held that the judgment-seat should be accessible at all hours of the day and night — that justice should sleep only when injustice slept. To provide this accessibility at the smallest cost, is the object of many minute provisions in the Constitutional Code.∥ The delays occasioned in England by the system of circuits and vacations, are the object of repeated and severe denunciation.¶

A common feature of both his earlier and later works on judicial reform is, the appointment of Public Prosecutors, and of Advocates for the Poor.** The latter proposition is connected with the view, that justice, instead of being sold to the highest bidder, should be presented gratis, whenever this can be done without preponderant mischief. The evil that might occur from offering the assistance of the law to every one who might desire it, without cost or personal exertion, would undoubtedly be the entailment on the community of ceaseless lawsuits, carried on by all its litigious members. On the other hand, there is the consideration, that it is not he who gains it only who profits by a lawsuit, but that the public have an advantage, in the establishment of a precedent, and the exhibition of justice vindicated. The expense of employing lawyers in the vindication of a just claim, is of itself sufficiently oppressive: the addition of taxes on law proceedings, and fees to the court and its officers, is simply the taking advantage of an opportunity for pillaging the oppressed. The opinions of Bentham have been so far conceded to, that taxes on law proceedings have been abolished, and that fees have been, in almost all the courts of the empire, much reduced. Still the nation does not provide sufficiently for justice being done to the helpless. When a man, because he cannot afford to pay for it, is denied the service of the law to procure justice, it is proclaimed that the nation is still only on its way from that state of things “where he should take who has the power, and he should keep who can.”*

He considered the system of having different courts for the adjudication of different classes of causes, to be most perniciously productive of complexity and expense. The division of the English system — a division happily unknown in Scotland and in the rest of Europe — into common law and equity, afforded him a flagrant exemplification of the evil. The law by which each man’s rights and duties are defined should he homogeneous — each portion connected with the others, and the whole capable of being brought within the grasp of one mind. If one judge cannot administer the whole law, what chance has any private citizen of knowing enough of it to keep him from transgression? It does not follow that the division of the law into two systems makes any approach to a division of labour. The effect generally is — and it is strikingly developed in England — to make each portion more complicated and extensive than the whole would be under a uniform system. The very preservation of the boundaries between two such systems creates a science by itself. He thought, however, that while the jurisdiction of the courts of ordinary law ought to be partitioned according to geographical principles solely, that there was still room, in the case of persons separated from the position of the ordinary citizen, for tribunals having in view the administration of their rights and obligations among each other. On this principle he contemplated courts-martial, and ecclesiastical courts, as tribunals of exception.†

With regard to trial by jury, on which Bentham has written much — partly in relation to the best method of reforming it, and partly for the purpose of rationally limiting its operation — he was of opinion that, in the case of criminal charges, it was a necessary protection; but that the existing system demanded many reforms, and among others the discontinuance of unanimity, and the abolition of the Grand jury. In civil actions, he thought the operation of the system should be much restricted. He objected to the unbending rule which forces the case before a jury, when both parties might prefer the decision of a judge. He considered that the part which a jury has to act — that of a committee of the citizens at large to watch the operations of the bench — need not be so palpably exhibited, and that it might be presumed that the judges have honesty and public spirit enough to do right, without the constant presence of so imperative a check. In a country where there is publicity for justice, and a high tone of public opinion, he believed that supervisance, especially if added to the influence of the appeal system, would make judges cautious, and would secure a nearer approach to clear substantial justice, than can be found in the oscillations of the jury system. He proposed then, that in ordinary civil cases, the jury should be had recourse to only in the way of appeal,* — a plan by which, while no one who wished to have his case judged “by his country,” as it is termed, could complain that the boon was refused him, the number of jury trials, and, consequently, the expense of the system, would be much diminished. In the Constitutional Code, the juries, under the republican system there promulgated, are merely to be assessors to the judge, under the title of Quasi-jurors.†

The method of so conducting the proceedings of the courts of Law, that they might administer justice accompanied with the smallest possible amount of delay, vexation, and expense to the litigant, is a subject referred to in almost all the works of Bentham, which bear on law reform. One work, “the Principles of Judicial Procedure,”‡ is devoted to the organization of such a system. The various facilities for coming rapidly at the knowledge of the question at issue, keeping up a communication between all the parties concerned in the discussion, securing obedience to the decision pronounced, &c., cannot be here enumerated;§ and it will be impossible to go into detail beyond a slight glance at that principle of personal responsibility, which peculiarly characterizes the whole system. As the public interest requires personal responsibility on the part of all public officers, so does it on the part of those who, by an appeal to the law, exercise the privilege which every one should be possessed of, of demanding the performance of judicial services — in other words, of litigants. To this end it is a leading principle of judicial procedure, that litigants should be confronted with their judges and with each other, that they should be questioned as to the statements on which they found, and that they should be made responsible for falsehood, whether it be uttered with the deliberate design of deceiving, or be rashly stated without that amount of consideration which a man gives to his words when the consequences of a mistake fall upon himself. The litigant is to be entitled to employ a professional assistant; but grades of professional lawyers transacting different departments in lawsuits — as represented by barrister and attorney in English practice — are objected to. In an ordinary lawsuit, the country attorney receives his client’s communication, and transfers it to the town attorney, who communicates it to the barrister. From the variety of the channels through which the history is thus communicated to the judicatory, impediments are created to the discovery of the party who may be the author of any falsehood that may have been uttered; and there is a general frittering away of responsibility for the proper conduct of the cause. Let the party himself be accessible when wanted, and let him have but one adviser between him and the judge: falsehoods will then be easily traced to their source, and being so traceable, will not be so readily committed.∥

The privilege possessed by counsel, of stating facts which they do not believe to be true — whether in civil or in criminal cases — is denounced as tending to the perversion of justice, and to the confusion, in those quarters where bad example is most dangerous, of the distinction between right and wrong — between truth and falsehood. The false morality of the profession, on this point, is repeatedly and severely attacked by Bentham; and his animadversions have in view the alternative of either producing a legislative remedy, or, by the force of reasoning on the public and the profession of the law, of raising the standard of morality in relation to this practice. To see the full extent of the hardships that may be occasioned by fraudulently false, or lax statements in relation to lawsuits, it must be remembered, that the very fact of requiring to be a party to a litigation is itself a hardship, which, if it cannot be saved to the party who is in the right, should at least be so arranged that its pressure may be as light upon him as it can be made. The person who, by a certain document called a writ, can compel another man to lodge a document in answer, or to appear before a court, possesses a power of persecuting his fellow citizens, which no one should possess uncontrolled. If there were no punishment, by the infliction of costs or otherwise, on the malá fide suitor, his power of annoyance would be nearly absolute; and it is precisely to the extent to which there is a check on his privilege of telling falsehoods, that the public are protected from the machinations of the judicial persecutor. Where there are great inequalities in point of wealth, the extent of hardship which may be thus committed is enlarged; and thus the rigorous enforcement of veracity, in legal pleadings, is the poor man’s protection against the tyranny of the rich.*

Promulgation of the Laws, by Bentham

Text of one of the parts, edited from the French of Dumont, and the original MSS. and printed works of Bentham, titled “Essay on the Promulgation of Laws, and the Reasons Thereof; with Specimen of a Penal Code”, of the classical book “An Introduction to the Principles of Morals and Legislation”, by Jeremy Bentham:

Let us suppose the general code completed, and that the seal of the sovereign has been set to it. What remains to be done?

That a law may be obeyed, it is necessary that it should be known: that it may be known, it is necessary that it be promulgated. But to promulgate a law, it is not only necessary that it should be published with the sound of trumpet in the streets; not only that it should be read to the people; not only even that it should be printed: all these means may be good, but they may be all employed without accomplishing the essential object. They may possess more of the appearance than the reality of promulgation. To promulgate a law, is to present it to the minds of those who are to be governed by it in such manner as that they may have it habitually in their memories, and may possess every facility for consulting it, if they have any doubts respecting what it prescribes.

There are many methods of attaining this end: none of them ought to be neglected; but it has been too common to neglect them all. The forgetfulness of legislators in this respect has exceeded every thing which could have been imagined. I speak more particularly of modern legislators. We shall find models deserving of imitation in antiquity; and it is astonishing that the example which should have had the greatest weight among Christian nations, should have had scarcely any influence in this respect. They have borrowed from Moses, laws which possessed only a relative and local utility; but they have not imitated him in that which bears the noblest character of wisdom, and which is suited to all times and all places.

It is said by some naturalists, that the ostrich is among the most stupid of birds, inasmuch as it leaves its eggs in the sand, unmindful that the passing foot may crush them. If this were true, Bacon, who has converted into sources of wisdom so many of the ancient fables, might have turned it into an apologue; and the legislator who, after having framed his laws, abandons their promulgation to chance, and thinks that his task is finished when the most important of his duties has only begun, would have been represented by the ostrich.

It is true, that before laws can be promulgated, they must exist. That which is called unwritten law, which consists of rules of jurisprudence, is a law which governs without existing. The learned may exercise their ingenuity in guessing at it; but the unlearned citizen can never know it. Were these rules to receive an authentic form, and to be promulgated, they would no longer be mere rules, but would become real laws. To render them such, has been one of the great objects of my plan; and the facility of promulgation has been one of the principal objects which I have had in view. It is with this view that I have divided the general code into particular codes, that they may be separated or collected together, according to the powers and wants of the individuals whom they respectively concern.

To promulgate the English laws as they exist at present; to pile the decisions of the judges upon the top of the statutes of parliament, would be chimerical: it would be to present the sea to those that thirst: it would do nothing for the mass of the people, who would not be able to comprehend them. A point, say the mathematicians, has no parts: so neither are there any parts in chaos.

If the laws be good, it is desirable that they should be known; if otherwise, the knowledge of them may be mischievous: for example, if you leave in your code bad coercive laws, persecuting laws, it is well that they remain undiscovered by informers. If your laws of procedure favour the impunity of crimes; if they afford means of eluding justice, of evading taxes, of cheating creditors, it is well that they remain unknown. But what other system of legislation besides this will gain by being unknown?

There are some laws which seem to have a natural notoriety: such are those which concern crimes against individuals; as theft, personal injuries, fraud, murder, &c. But this notoriety does not extend to the punishment, which, however, is the motive upon which the legislature relies for procuring obedience to the law. It does not extend even to those circumstances, often so delicate, which must be noticed before the line of demarcation can be traced among so many crimes differently punished, nor even to those actions which are either innocent or meritorious.

The dissemination of the laws ought to be regulated by the number of persons whom they concern. The universal code ought to be promulgated to all. The particular codes ought to be set before the classes to which they respectively refer. A road-book is useful, but it is of most use to those who are to be guided by its regulations, and who wish to travel.

The universal code of all secular books would be the most valuable, and almost the only one necessary for all; if not as a book of law, at least as a book of morals.

The sacred books command men to be honest: a good code would explain in what justice consists, and would exhibit in what manner it was possible to be unjust.

Probity, prudence, benevolence; these are the subjects of morality. The law ought, however, to include all that relates to probity; all that teaches men to live together without injuring each other.

There will then remain for morality, prudence and benevolence: but secure probity, and prudence will have fewer snares to escape, and will walk more securely: prevent men from injuring one another, and benevolence will have fewer sufferings to relieve.

Notes

‡ Ibid. vol. v. p. 235.

* Specimen of the title of a statute — The 57 Geo. III. c. 101:—

An act to continue an act intituled, An act farther to extend and render more effectual certain provisions of an act passed in the twelfth year of the reign of His Majesty King George the First, intituled, An act to prevent frivolous and vexatious arrests, and of an act passed in the fifth year of the reign of His Majesty King George the Second, to explain, amend, and render more effectual the said former Act; and of two acts passed in the Nineteenth and Forty-third years of the reign of His present Majesty, extending the provisions of the said former Acts.

* Works, vol. viii. p. 555 et seq.

† The number, and the heterogeneous nature, of the subjects frequently embraced in one act, render it extremely difficult to trace the whole legislation of the Statute Book on any one given subject. The following is the title of the act 23 Geo. III. c. 26: “An act to continue several Laws for the better regulating of pilots, for the conducting of ships and vessels from Dover, Deal, and Isle of Thanet, up the rivers of Thames and Medway; and for permitting rum or spirits, of the British sugar plantations, to be landed before the duties of Excise are paid thereon; and to continue and amend an act for preventing frauds in the admeasurement of coals within the city and liberty of Westminster, and several parishes near thereunto; and to continue several laws for preventing exactions of occupiers of locks and wears upon the river Thames, westward; and for ascertaining the rates of water-carriage upon the said river; and for the better regulation and government of seamen in the merchant service; and also to amend so much of an act made during the reign of King George I., as relates to the better preservation of salmon in the River Ribble; and to regulate fees in trials at assizes and nisi prius, upon records issuing out of the office of Pleas of the Court of Exchequer; and for the apprehending of persons in any county or place upon warrants granted by Justices of the Peace in any other county or place; and to repeal so much of an act, made in the twelfth year of the reign of King Charles II., as relates to the time during which the office of Excise is to be kept open each day, and to appoint for how long time the same shall be kept open each day for the future; and to prevent the stealing or destroying of turnips; and to amend an act made in the second year of his present Majesty, for better regulation of attorneys and solicitors.”

* See on the subject of Codification, vol. iii. p. 155 et seq., 205 et seq.; iv. 451 et seq., 503 et seq., v. 439, 546 et seq.

† Quoted from the Income Tax act, 5 & 6 Vic. c. 35.

‡ Works, vol. iii. p. 248-251. See on the subject generally — Nomography, or The Art of inditing Laws, vol. iii. p. 231 et seq. No better examples could be given of statutes drawn on the principles recommended by Bentham, than the Illustrations of his own system given by Mr. Symonds, in his communication on the “Drawing of Acts of Parliament,” presented among the Parliamentary papers in 1838. The following is a portion of the act 4 & 5 Will. IV. c. 31, for the reduction of the 4 per cents, given along with Mr. Symonds’ improved draft. It has to be noticed that in his original there is a clause for explaining the abbreviated expressions used by Mr. Symonds.

Existing Act.
I. Be it enacted by the King’s Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that all and every person and persons, bodies politic or corporate, who now is or are or hereafter may be interested in or entitled unto any part of the National Debt redeemable by law which now carries an interest after the rate of four pounds per centum per annum, and is usually known by the name of “Four per centum annuities one thousand eight hundred and twenty-six,” payable at the Bank of England, and who shall not signify his, her, or their dissent in manner hereinafter mentioned, shall, in lieu of every one hundred pounds of such four pounds per centum annuities, respectively receive and be entitled to the sum of one hundred pounds in “The new three pounds and ten shillings per centum annuities,” and to carry an interest after the rate of three pounds and ten shillings per centum per annum, and so in proportion for any greater or less amount than one hundred pounds of such four pounds per centum annuities respectively; and that the dividends thereof shall be payable half-yearly, at the Bank of England, upon the fifth day of January and the fifth day of July in each and every year; and the first dividend, namely, one quarter of a year’s dividend, on the said new three pounds and ten shillings per centum annuities shall be payable at the Bank of England on the fifth day of January one thousand eight hundred and thirty-five; and that the said new three pounds and ten shillings per centum annuities shall be subject and liable to redemption at any time after the fifth day of January one thousand eight hundred and forty, and not before that period; and that the said new three pounds and ten shillings per centum annuities shall be free from all taxes, charges, and impositions, in the like manner as the said four pounds per centum annuities.

II. And be it further enacted, That the interest and dividends payable in respect of the said new three pounds and ten shillings per centum annuities shall be charged and chargeable upon, and shall be issued and paid out of, the Consolidated Fund of the United Kingdom of Great Britain and Ireland, in the same manner as the interest and dividends of the said four pounds per centum annuities respectively now stand charged on the said Fund.

III. And be it further enacted, That all and every person and persons, bodies politic or corporate, who shall not, on or before the twenty-eighth day of May one thousand eight hundred and thirty-four, signify his, her, or their dissent from accepting and receiving a share in the said new three pounds and ten shillings per centum annuities, in lieu of his, her, or their respective shares in the said respective four pounds per centum annuities, or for any part of such respective shares in such last-mentioned annuities, in the manner hereinafter directed, shall be deemed and taken to have consented to accept and receive the same: Provided always, That if any proprietor or proprietors of the said respective four pounds per centum annuities shall not have been within the limits of the United Kingdom at any time between the eighth day of May and the twenty-eighth day of May one thousand eight hundred and thirty-four, both days inclusive, but shall have been in any other part of Europe, it shall be lawful for such proprietor or proprietors to signify such dissent at any time before the sixth day of July one thousand eight hundred and thirty-four: and if any such proprietor or proprietors shall not, at any time between the eighth day of May and the fifth day of July one thousand eight hundred and thirty-four, both days inclusive, have been within any part of Europe, it shall be lawful for him, or her, or them to signify such dissent at any time before the first day of March one thousand eight hundred and thirty-five; such proprietor or proprietors proving to the satisfaction of the Governor and Directors of the Bank of England, or any two or more of them, his, her, or their absence from the United Kingdom, or out of Europe, as the case shall happen, and that his, her, or their share or shares of such four pounds per centum annuities stood in his, her, or their name or names respectively, or in the name or names of any one or more trustee or trustees on his, her, or their behalf, on the eighth day of May one thousand eight hundred and thirty-four, in the books of the Governor and Company of the Bank of England; and provided also, That such proprietor or proprietors so absent from the United Kingdom, or out of Europe, shall signify his, her, or their dissent within ten days after his, her, or their return to the United Kingdom.

IMPROVED DRAFT.
II. Conversion of Four Per Cents.
1. Conversion.
£3½ per cents.] And be it enacted, That the said four per cents shall be converted into three-and-a-half per cents.

2. Redemption.
Period of Redemption.] And such new three-and-a-half per cents shall not become redeemable until the fifth day of January one thousand eight hundred and forty. And thenceforward they shall be redeemable.

3. Consolidation.
New three-and-a-half per cents.] And the several annuities of three-and-a-half per cents created by this act shall be consolidated with the annuities bearing interest at the rate of three-and-a-half per cent existing at the time of the passing of this act, called the “New three-and-a-half per cent annuities.” And these annuities shall be one capital or joint stock.

Dissents.
1. Rights of Dissentients.
Payment of Dissentients.] And be it enacted, That every person who dissents from accepting the new three-and-a-half per cents in lieu of the said four per cents shall be paid off.

Periods of Dissenting.] But all persons so dissenting shall signify their dissent to the Bank of England, within the time specified in the schedule of dissentients, contained in the Appendix of Schedules.

2. Absent Dissentients.
Proof of Absence.] And in order to entitle a dissentient proprietor, absent from the United Kingdom, or from Europe, to the extended periods given in the said schedule, he shall prove to the satisfaction of the Governor and Directors of the Bank of England, or any two of them, (1.) The fact of absence, within the times limited in the schedule; and, (2.) That his share of such four per cents stood in his name, or in the name of a trustee on his behalf, on the eighth day of May eighteen hundred and thirty-four, in the Bank books.

* See Works, vol. ix. p. 355.

† Ibid. p. 412. This arrangement is proposed in conjunction with a Plan for registering merchant seamen, and for defining their duties and the power of their officers. The principle of these suggestions has been realized in the Merchant Seaman’s Act, 5 & 6 Will. IV., c. 19.

‡ See, generally, as to the Promulgation of the Laws, Works, vol. i. p. 157 et seq.; iv. 455; vi. 65, 522, 578.

* See Works, vol. iv. pp. 454, 491, 538; viii. 517; ix. 1.

† Ibid. vol. iv. p. 285.

‡ Ibid. vol. ix. p. 454 et seq.

§ See Works, vol. ii. p. 22; iv. 357, 368; ix. 544 et seq., 592.

∥ Ibid. vol. ix. p. 515 et seq.; iv. 356.

¶ Ibid. vol. iv. p. 336; vii. 243, 371 et seq.

** Ibid. vol. iv. p. 354 et seq., 384 et seq.; ix. 516 et seq., 570 et seq., 577 et seq.

* See Works, vol. ii. pp. 211, 431, 573 et seq., vii. 199.

† See Works, vol. iv. p. 334; v. 473, 525; vi. 134; vii. 291 et seq.

* See Works, vol. ii. p. 122.

† Ibid. vol. ix. p. 554 et seq.

‡ Beginning of vol. ii. of the Works.

§ In connexion with the subjects of Evidence and of Punishment, some of the views in relation to procedure are elsewhere incidentally noticed.

∥ In the operations of Procedure, various incidents are found which tend to fritter away personal responsibility. Thus, witnesses examined on affidavit are represented in the minutes of evidence in the third person; and there is thus an article of confusion introduced which prevents them from determining whether their evidence is accurately minuted or not. — See Works, vol. vi. p. 439.

* See, besides the Principles of Procedure, Works, vol. ii. pp. 58, 73, 577; iv. 318; vi. 136, 297, 337; vii. 202, 230, 262, 373.