Among the most difficult and the most important of the functions of the demonstrator is the business of arrangement.In this our Author has been thought,and not,I conceive,without justice,to excel;at least in comparison of any thing in that way that has hitherto appeared.`Tis to him we owe such an arrangement of the elements of Jurisprudence,as wants little,perhaps,of being the best that a technical nomenclature will admit of.A technical nomenclature,so long as it is admitted to mark out and denominate the principal heads,stands an invincible obstacle to every other than a technical arrange ment.For to denominate in general terms,what is it but to arrange?and to arrange under heads,what is it but to denominate upon a large scale?A technical arrangement,governed then in this manner,by a technical nomenclature,can never be otherwise than confused and unsatisfactory.The reason will be sufficiently apparent,when we understand what sort of an arrangement that must be which can be properly termed a natural one.
That arrangement of the materials of any science may,I take it,be termed a natural one,which takes such properties to characterize them by,as men in general are,by the common constitution of man's nature,disposed to attend to:such,in other words,as naturally,that is readily,engage,and firmly fix the attention of any one to whom they are pointed out.The materials,or elements here in question,are such actions as are the objects of what we call Laws or Institutions.
Now then,with respect to actions in general,there is no property in them that is calculated so readily to engage,and so firmly to fix the attention of an observer,as the tendency they may have to,or divergency (if one may so say)from,that which maybe styled the common end of all of them.The end I mean is Happiness:(19)and this tendency in any act is what we style its utility:as this divergency is that to which we give the name of mischievousness.With respect then to such actions in particular as are among the objects of the Law,to point out to a man the utility of them or the mischievousness,is the only way to make him see clearly that property of them which every man is in search of;the only way,in short,to give him satisfaction.
From utility then we may denominate a principle,that may serve to preside over and govern,as it were,such arrangement as shall be made of the several institutions or combinations of institutions that compose the matter of this science:and it is this principle,that by putting its stamp upon the several names given to those combinations,can alone render satisfactory and dear any arrangement that can be made of them.
Governed in this manner by a principle that is recognized by all men,the same arrangement that would serve for the jurisprudence of any one country,would serve with little variation for that of any other.
Yet more.The mischievousness of a bad Law would be detected,at least the utility of it would be rendered suspicious,by the difficulty of finding a place for it in such an arrangement:while,on the other hand,a technical arrangement is a sink that with equal facility will swallow any garbage that is thrown into it.
That this advantage may be possessed by a natural arrangement,is not difficult to conceive.Institutions would be characterized by it in the only universal way in which they can be characterized;by the nature of the several modes of conduct which,by prohibiting,they constitute offences.(20)These offences would be collected into classes denominated by the various modes of their divergency from the common end;that is,as we have said,by their various forms and degrees of mischievousness:in a word,by those properties which are reasons for their being made offences:and whether any such mode of conduct possesses any such property is a question of experience.
Now,a bad Law is that which prohibits a mode of conduct that is not mischievous.
Thus would it be found impracticable to place the mode of conduct prohibited by a bad law under any denomination of offence,without asserting such a matter of fact as is contradicted by experience.Thus cultivated,in short,the soil of Jurisprudence would be found to repel in a manner every evil institution;like that country which refuses,we are told,to harbour any thing venomous in its bosom.
The synopsis of such an arrangement would at once be a compendium of expository and of censorial Jurisprudence:nor would it serve more effectually to instruct the subject,than it would to justify or reprove the Legislator.
Such a synopsis,in short,would be at once a map,and that an universal one,of Jurisprudence as it is,and a slight but comprehensive sketch of what it ought to be.For,the reasons of the several institutions comprised under it would stand expressed,we see,and that uniformly (as in our Author's synopsis they do in scattered instances)by the names given to the several classes under which those institutions are comprised.And what reasons?
Not technical reasons,such as none but a Lawyer gives,nor any but a Lawyer would put up with;(21)but reasons,such as were they in themselves what they might and ought to be,and expressed too in the manner they might and ought to be,any man might see the force of as well as he.
Nor in this is there any thing that need surprize us.The consequences of any Law,or of any act which is made the object of a Law,the only consequences that men are at all interested in,what are they but pain and pleasure?
By some such words then as pain and pleasure,they may be expressed:and pain and pleasure at least,are words which a man has no need,we may hope,to go to a Lawyer to know the meaning of.(22)In the synopsis then of that sort of arrangement which alone deserves the name of a natural one,terms such as these,terms which if they can be said to belong to any science,belong rather to Ethics than to Jurisprudence,even than to universal Jurisprudence,will engross the most commanding stations.
