To the formation and continuance of the social state, it was absolutely necessary, that we should be influenced by those principles which are essential to its formation and continuance, that we should have an intuitive love for those actions which tend to unite men in society, and an abhorrence of those which drive us from each other, and tend, as it were, to break the bands of society asunder. Accordingly, the principle of moral approbation and disapprobation, is an internal, unaccountable feeling, which, without any view to their consequences, leads us to follow one course of action and reject another. We do not originally approve or condemn, because we have discovered, that the effects of the one are beneficial, those of the other injurious. Nature, antecedent to all reflections on utility, has stamped upon the human heart a predilection for these actions, and an aversion to those. And so happily has she adjusted our sentiments of approbation and disapprobation to conveniency, that, so far as our experience extends, no rule of conduct is approved of, but what is either useful or agreeable; nor condemned, but what has an opposite tendency.

Now it is this Principle, or rather the rules of Morality which it teaches us to form, that are the basis of Jurisprudence, and to enforce their observance is its principal aim; and as the justness of the one implies that of the other, we must allow, that the basis of our Judicial System is precisely that upon which it ought to rest. Its imperfections have arisen from accidental causes, not from its leading principles, as will be

less removed from the immediate examination of our senses, to stimulate curiosity, and to present a reward to industry."

What Dr. BLAIR observes upon the Powers and Pleasures of Taste, may likewise be mentioned as in analogy-That " in these there is a more remarkablę inequality among men than is usually found in point of common sense, reason, and judgment. The constitution of our nature in this, as in all other respects, discovers admirable wisdom. In the distribution of those talents which are necessary for man's well-being, nature has made less distinction among her children. But in the distribution of those which belong only to the ornamental part of life, she hath bestowed her favours with more frugality. She hath both sown the seeds more sparingly, and rendered a higher culture necessary for bringing them to perfection."

made evident when the sources of its imperfections shall be presently explained.

To prove that the Rules of Jurisprudence coincide with those of Morality, let us take an example from Criminal Law.

Though pleasure and pain are the primary sources of gratitude and resentment, yet a savage will distinguish between the man who designs him a benefit or injury, and one who occasions it without any intention. This distinction he must have learnt from Nature, and it leads to this consequence, that from the earliest to the more advanced stages of society, our natural sentiments induce us to annex the quality of guilt to the disposition of mind, and to that alone, from which an injury proceeds.

When, however, we come to reason upon the subject, a doubt is cast upon the propriety of that doctrine which Nature teaches us to form. We are led by irresistible arguments to acknowledge, that those actions only are politically wrong, which are injurious to society; and as the injury which the act itself produces is palpable, and that which the intention produces, not only is not obvious, but it is believed has never yet been explained, we doubt whether our natural sentiments do not deceive us, and whether our judgment should not be influenced rather by the consequences than by the motives of actions. And in this spirit, a philosophical jurisprudent has not scrupled to declare, that "crimes are to be measured by the injury done to society; and that they err, therefore, who consider that a crime is greater or less according to the intention of the person by whom it was committed."

Nature, however, in this, as in every other instance, is justified by reason. The main evil which crime occasions to society is through the example which it holds out; and it so happens, that in proportion as the intention is vicious, in the same proportion is the example injurious. For, consider the mode in which example influences-it is by sympathy. We

BECCARIA.

place ourselves in the situation of the agent, and become, as it were, the same person with him. In the same way that he is affected, in the same way only can we ourselves be affected. And since his heart can be corrupted only where the disposition of his mind was reprehensible, so only can ours.

The want of distinguishing between the Origin and Progress of Jurisprudence, and the origin and progress of all other sciences, has led many to venerate beyond their merits those who declared the first principles of our system, and others, to suppose that because they were laid down in the infancy of society, they must needs be erroneous. * Both sides are agreed upon the imperfect state of the cotemporary sciences; but from not distinguishing the reason, the former, struck with the justness of our main principles, are lost in admiration at minds that, when every thing else was dark around them, could discern their way along the path of social life; whilst the latter cannot imagine how only one ray of wisdom could illumine such a night of ignorance and error. ‡

The Review of the French Code d' Instruction Criminelle, has the following remark." It was in an early age; an ignorant and barbarous age; when the human mind was yet rude and imbecile, and Law was in the highest degree inadequate to the purposes of Law, that this rule (a rule of which it had been speaking) began to prevail. Whatever, therefore, was the extent and force of its influence, from that time to this; to the whole of that extent it has operated, in making the wretched laws of a wretched age, the rule of action for all succeeding ages.

+ Sir WILLIAM EVANS very properly remarks, that "in adverting to some of our earliest statutes, we admire the justice of the principles which they promulgate."

The following judicious observations of Sir WILLIAM EVANS, may be quoted here." I have adverted to the objection against deviating from the existing system of the law, on account of its deviation from the Wisdom of our Ancestors;' and under the impression that, in no small number of instances, an unmeaning use of this phrase has, from its imposing effect, been allowed to stand as a substitute for more substantial argument; and that an objection which would have appeared very bald and meagre, if expressed in the plain terms that a proposal should be rejected because it altered the common law; or-that an act should not be repealed, because it was passed a hundred years ago; has commanded silence and assent, when couched in the language of solemn appeal to the authority of ancient wisdom; I have certainly not scrupled to indicate my opinion of the indiscriminate resort to such an argument with some degree of levity."

But to trace to their source the defects of our Judicial system. They have arisen principally from three causes. 1. From warping the rules of morality in favour of particular men, or orders of men; as formerly, in the laws of Prerogative,* and the Privileged Classes; † 2. From the want of experience in those branches of the arts and sciences which are frequently made the subjects of legislation; ‡ 3. From reducing the Common, or Unwritten, Law to writing.

Deficiencies of the first sort imply no imperfection in the general principles upon which our system is founded, since they proceeded, not from those principles, but from a quite different cause. The same holds with defects of the second class. And with the last likewise, as will appear from the following explanation.

The inconveniences of reducing the Common Law to a Written Law, as was done by King ALFRED, are these: So long as the law remained in an unwritten state, no considerable check was imposed upon those by whom it was administered, against enlarging its rules or definitions to meet the exigencies of the times. But when reduced to writing, (to say nothing of the authority which the act itself conferred,) limits were prescribed by the supreme power in the state, which the Judges could not afterwards transgress. Any farther improvement, therefore, must have flowed from that power, whose

"In the ancient prerogatives of the Crown, with regard to Purveyance and a variety of other subjects, a system of oppression is exhibited very different from the present established state of Constitutional Liberty." Sir WILLIAM EVANS.

+ The great benefits conferred by EDWARD the First, if we except his Formulæ, were his correction of the abuses of the Privileged Orders.

"The true principles of Political Economy have only been developed within a very recent period; and their progress, in point of practical application, has been by no means proportionate to their evidence and importance; but taking the subject in its most confined and limited point of view, no person of enlightened understanding would advise the recurrence to enactments-that no man shall be served at dinner or supper with more than two courses, except upon some great holydays, on which he may be served with three. 10 Edw. 3. st. 3. -That merchants aliens shall bestow the money which they receive within the realm, upon merchandizes of the realm. 4 Hen. 4. c. 15." &c. Sir WILLIAM EVANS.

energies, in the work of amendment, have always been paralysed by the want of that experience which the adminis tration of justice can alone supply; and it has seldom interposed, until evils have grown to an intolerable pitch. It is in particular instances only, that the insufficiency of a regulation is very obvious and discernible, and unluckily such instances rarely present themselves to those Members of the Legislature, from whom alone any material improvement must, by the operation of fixed moral causes, be expected. Lawyers who have proved exceptions to this rule, have owed their distinction to Nature and reflection, not to the genius of their profession.

ALFRED'S code, it is true, was afterwards lost, but not until its influence had been felt, and a strict adherence to the limits of a rule hallowed by inveterate practice. To its loss, however, (and that of the other authoritative collections,) we owe those occasional improvements, which the common law receives at the hands of the Judges. It is optional with a court of judicature to follow the rules prescribed by their predecessors; but the commands of the Legislature must be implicitly obeyed. Lord MANSFIELD appears to have listened very readily to the suggestions of improvement; yet such is the influence of example, and such the contagion of opinion, that what was the offspring of that extraordinary good sense which regulated a genius the most comprehensive of his age, is generally regarded as the reproach of his judicial character.

The great practical conclusion, therefore, to which the researches of an eminent theoritician* have led-the propriety of converting the Common Law to Statute Law, seems, in the present state of our judicial system, to be very questionable, nay singularly unfortunate. So long as that state remains the same, the only improvement of which, through the medium of codification, the Common Law appears susceptible, is, first, a Digest of Judicial Decisions † which, without possessing a

* JEREMY BENTHAM. See his Papers on Codification.

The perfection to which a Code of Jurisprudence may be brought is stated in the observations of DUGALD STEWART, El. Phil. Hum. Mind, vol. ii. p. 159, et seq.