It is necessary I should be acquainted with the context, and the occasion that produced them. Their construction will depend upon the quantity of momentary heat or rooted malice with which they were delivered; and words which appear at first sight of tremendous import will sometimes be found, upon accurate investigation, to have had a meaning purely ironical in the mind of the speaker. These considerations, together with the odious nature of punishment in general, and the extreme mischief that may attend our restraining the faculty of speech, in addition to the restraint we conceive ourselves obliged to put on men's actions, will probably be found to afford a sufficient reason why words ought seldom or never to be made a topic of political animadversion.
A further article of great importance in the trial of offences is that of the method to be pursued by us in classing them, and the consequent apportioning the degree of animadversion to the cases that may arise. This article brings us to the direct consideration of law, which is, without doubt, one of the most important topics upon which human intellect can be employed. It is law that has hitherto been regarded, in countries calling themselves civilized, as the standard by which to measure all offences and irregularities that fall under public animadversion. Let us fairly investigate the merits of this choice.
The comparison which has presented itself, to those by whom the topic has been investigated, has hitherto been between law on one side, and the arbitrary will of a despot on the other. But if we would estimate truly the merits of law, we should first consider it as it is in itself, and then, if necessary, search for the most eligible principle that may be substituted in its place.
It has been recommended as 'affording information to the different members of the community, respecting the principles which will be adopted in deciding upon their actions'. It has been represented as the highest degree of iniquity 'to try men by an ex post facto law, or indeed in any other manner than by the letter of a law, formally made, and sufficiently promulgated'.
How far it will be safe altogether to annihilate this principle, we shall presently have occasion to enquire. It is obvious, at first sight, to remark that it is of most importance in a country where the system of jurisprudence is most capricious and absurd. If it be deemed criminal in any society to wear clothes of a particular texture, or buttons of a particular composition, it is unavoidable to exclaim that it is high time the jurisprudence of that society should inform its members what are the fantastic rules by which they mean to proceed. But, if a society be contented with the rules of justice, and do not assume to itself the right of distorting or adding to those rules, there law is evidently a less necessary institution.
The rules of justice would be more clearly and effectually taught by an actual intercourse with human society, unrestrained by the fetters of prepossession, than they can be by catechisms and codes.
One result of the institution of law is that the institution, once begun, can never be brought to a close. Edict is heaped upon edict, and volume upon volume. This will be most the case where the government is most popular, and its proceedings have most in them of the nature of deliberation. Surely this is no slight indication that the principle is wrong, and that, of consequence, the further we proceed in the path it marks out to us, the more we shall be bewildered. No talk can be less hopeful than that of effecting a coalition between a right principle and a wrong. He that seriously and sincerely attempts it will perhaps expose himself to more palpable ridicule than he who, instead of professing two opposite systems, should adhere to the worst.
There is no maxim more clear than this, 'Every case is a rule to itself.'
No action of any man was ever the same as any other action had ever the same degree of utility or injury. It should seem to be the business of justice to distinguish the qualities of men, and not, which has hitherto been the practice, to confound them. But what has been the result of an attempt to do this in relation to law? As new cases occur, the law is perpetually found deficient. How should it be otherwise? Lawgivers have not the faculty of unlimited prescience, and cannot define that which is boundless. The alternative that remains is either to wrest the law to include a case which was never in the contemplation of its authors, or to make a new law to provide for this particular case. Much has been done in the first of these modes. The quibbles of lawyers, and the arts by which they refine and distort the sense of the law, are proverbial. But, though much is done, everything cannot be thus done. The abuse will sometimes be too palpable. Not to say that the very education that enables the lawyer, when he is employed for the prosecutor, to find out offences the lawgiver never meant, enables him, when he is employed for the defendant, to discover subterfuges that reduce the law to nullity. It is therefore perpetually necessary to make new laws. These laws, in order to escape evasion, are frequently tedious, minute and circumlocutory. The volume in which justice records her prescriptions is for ever increasing, and the world would not contain the books that might be written.