Principles of Morals and

242/Jeremy Bentham
whole body of the law for any other than punitory, or in other words
than penal, laws. And this, perhaps, would be the case, were it not for
the necessity of a large quantity of matter of the expository kind, of
which we come now to speak.
X. It will happen in the instance of many, probably of most, possi-
bly of all commands endued with the force of a public law, that, in the
expression, given to such a command it shall be necessary to have re-
course to terms too complex in their signification to exhibit the requisite
ideas, without the assistance of a greater or less quantity of matter of an
expository nature. Such terms, like the symbols used in algebraical no-
tation, are rather substitutes and indexes to the terms capable of them-
selves of exhibiting the ideas in question, than the real and immediate
representatives of those ideas.
Take for instance the law, Thou shalt not steal. Such a command,
were it to rest there, could never sufficiently answer the purpose of a
law. A word of so vague and unexplicit a meaning cannot otherwise
perform this office, than by giving a general intimation of a variety of
propositions, each requiring, to convey it to the apprehension, a more
particular and ample assemblage of terms. Stealing, for example (ac-
cording to a definition not accurate enough for use, but sufficiently so
for the present purpose), is the taking of a thing which is another’s, by
one who has no 
TITLE
 so to do, and is conscious of his having none.
Even after this exposition, supposing it a correct one, can the law be
regarded as completely expressed? Certainly not. For what is meant by
a man’s having a 
TITLE
 to take a thing? To be complete, the law must
have exhibited, amongst a multitude of other things, two catalogues: the
one of events to which it has given the quality of conferring title in such
a case; the other of the events to which it has given the quality of taking
it away. What follows? That for a man to have stolen, for a man to have
had no title to what he took, either no one of the articles contained in the
first of those lists must have happened in his favour, or if there has,
some one of the number of those contained in the second must have
happened to his prejudice.
XI. Such then is the nature of a general law, that while the impera-
tive part of it, the punctum saliens as it may be termed, of this artificial
body, shall not not take up above two or three words, its expository
appendage, without which that imperative part could not rightly per-
form its office, may occupy a considerable volume.
But this may equally be the case with a private order given in a

---

Principles of Morals and Legislation/243
family. Take for instance one from a bookseller to his foreman. Remove,
from this shop to my new one, my whole stock, according to this printed
catalogue.—Remove, from this shop to my new one, my whole stock, is
the imperative matter of this order; the catalogue referred to contains
the expository appendage.
XII. The same mass of expository matter may serve in common for,
may appertain in common to, many commands, many masses of im-
perative matter. Thus, amongst other things, the catalogue of collative
and ablative events, with respect to titles above spoken of (see No. X of
this note), will belong in common to all or most of the laws constitutive
of the various offences against property. Thus, in mathematical dia-
grams, one and the same base shall serve for a whole cluster of tri-
angles.
XIII. Such expository matter, being of a complexion so different
from the imperative it would be no wonder if the connection of the former
with the latter should escape the observation: which. indeed, is perhaps
pretty generally the case. And so long as any mass of legislative matter
presents itself, whichis not itself imperative or the contrary, or of which
the connection with matter of one of those two descriptions is not appre-
hended, so long and so far the truth of the proposition, That every law is
a command or its opposite, may remain unsuspected, or appear ques-
tionable; so long also may the incompleteness of the greater part of
those masses of legislative matter, which wear the complexion of com-
plete laws upon the face of them, also the method to be taken for render-
ing them really complete, remain undiscovered.
XIV. A circumstance, that will naturally contribute to increase the
difficulty of the discovery, is the great variety of ways in which the
imperation of a law maybe conveyed—the great variety of forms which
the imperative part of a law may indiscriminately assume: some more
directly, some less directly expressive of the imperative quality. Thou
shalt not steal. Let so man steal. Whoso stealeth shall be punished so
and so. If any man steal, he shall be punished so and so. Stealing is
where a man does so and so; the punishment for stealing is so and so.
To judges so and so named, and so and so constituted, belong the cog-
nizance of such and such offences; viz., stealing—and so on. These are
but part of a multitude of forms of words, in any of which the command
by which stealing is prohibited mighteq ually be couched: and it is mani-
fest to what a degree, in some of them, the imperative quality is clouded
and concealed from ordinary apprehension.

---

244/Jeremy Bentham
XV. After this explanation, a general proposition or two, that may
be laid down, may help to afford some little insight into the structure
and contents of a complete body of laws.—So many different sorts of
offences created, so many different laws of the coercive kind: so many
exceptions taken out of the descriptions of those offences, so many laws
of the discoercive kind.
To class offences, as hath been attempted to be done in the preced-
ing chapter, is therefore to class laws: to exhibit a complete eatalogue of
all the offences created by law, including the whole mass of expository
matter necessary for fixing and exhibiting the import of the terms con-
tained in the several laws, by which those offences are respectively cre-
ated, would be to exhibit a complete collection of the laws in force: in a
word a complete body of law; a pannomion, if so it might be termed.
XVI. From the obscurity in which the limits of a law, and the dis-
tinction betwixt a law of the civil or simply imperative kind and a puni-
tory law, of are naturally involved, results the obscurity of the limits
betwixt a civil and a penal code, betwixt a civil branch of the law and
the penal.
The question, What parts of the total mass of legislative matter
belong to the civil branch, and what to the penal? supposes that divers
political states, or at least that some one such state, are to be found,
having as well a civil code as a penal code, each of them complete in its
kind, and marked out by certain limits. But no one such state has ever
yet existed.
To put a question to which a true answer can be given, we must
substitute to the foregoing question some such a one as that which fol-
lows:
Suppose two masses of legislative matter to be drawn up at this
time of day, the one under the name of a civil code, the other of a penal
code, each meant to be complete in its kind—in what general way, is it
natural to suppose, that the different sorts of matter, as above distin-
guished, would be distributed between them?
To this question the following answer seems likely to come as near
as any other to the truth.
The civil code would not consist of a collection of civil laws, each
complete in itself, as well as clear of all penal ones:
Neither would the penal code (since we have seen that it could not)
consist of a collection of punitive laws, each not only complete in itself,
but clear of all civil ones. But

---

Principles of Morals and Legislation/245
XVII. The civil code would consist chiefly of mere masses of ex-
pository matter. The imperative matter, to which those masses of ex-
pository matter respectively appertained, would be found—not in that
same code—not in the eivil code—nor in a pure state, free from all
admixture of punitory laws; but in the penal code—in a state of combi-
nation—involved, in manner as above explained, in so many correspon-
dent punitory laws.
XVIII. The penal code then would consist principally of punitive
laws, involving the imperative matter of the whole number of civil laws:
along with which would probably also be found various masses of ex-
pository matter, appertaining not to the civil, but to the punitory laws.
The body of penal law enacted by the Empress-Queen Maria Theresa,
agrees pretty well with this account.
XIX. The mass of legislative matter published in French as well as
German ander the auspices of Frederic II. of Prussia, by the name of
Code Frederic, but never established with force of law, appears, for
example, to be almost wholly composed of masses of expository matter,
the relation of which to any imperative matter appears to have been but
very imperfectly apprehended.
XX. In that enormous mass of confusion and inconsistency, the an-
cient Roman, or, as it is termed’by way of eminence, the civil law, the
imperative matter, and even all traces of the imperative character, seem
at last to have been smothered in the expository. Esto had been the lan-
guage of primaeval simplicity: esto had been the language of the twelve
tables. By the time of Justinian (so thick was the darkness raised by
clouds of commentators) the penal law had been crammed into an odd
corner of the civil—the whole catalogue of offences, and even of crimes,
lay buried under a heap of obligations—will was hid in opinion—and
the original esto had transformed itself into videtur, in the mouths even
of the most despotic sovereigns.
XXI. Among the barbarous nations that grew up out of the ruins of
the Roman Empire, Law, emerging from under the mountain of exposi-
tory rubbish, reassumed for a while the language of command: and then
she had simplicity at least, if nothing else, to recommend her.
XXII. Besides the civil and the penal, every complete body of law
must contain a third branch, the constitutional.
The constitutional branch is chiefly employed in conferring, on par-
ticular classes of persons, powers, to be exercised for the good of the
whole society, or of considerable parts of it, and prescribing duties to

---

246/Jeremy Bentham
the persons invested with those powers.
The powers are principally constituted, in the first instance, by
discoercive or permissive laws operating as exceptions to certain laws
of the coercive or imperative kind. Instance: A tax-gatherer, as such,
may, on such and such an occasion, take such and such things, without
any other 
TITLE
.
The duties are created by imperative laws, addressed to the persons
on whom the powers are conferred. Instance: On such and such an
occasion, such and such a tax-gatherer shall take such and such things.
Such and such a judge shall, in such and such a case, cause persons so
and so offending to be hanged.
The parts which perform the function of indicating who the indi-
viduals are, who, in every case, shall be considered as belonging to
those classes, have neither a permissive complexion, nor an imperative.
They are so many masses of expository matter, appertaining in com-
mon to all laws, into the texture of which, the names of those classes of
persons have occasion to be inserted. Instance; imperative matter:—Let
the judge cause whoever, in due course of law, is convicted of stealing,
to be hanged. Nature of the expository matter:—Who is the person
meant by the word judge? He who has been invested with that office in
such a manner: and in respect of whom no event has happened, of the
number of those, to which the effect is given, of reducing him to the
condition of one divested of that office.
XXIII. Thus it is, that one and the same law, one and the same
command, will have its matter divided, not only between two great codes,
or main branches of the whole body of the laws, the civil and the penal;
but amongst three such branches, the civil, the penal and the constitu-
tional.
XXIV. In countries, where a great part of the law exists in no other
shape, than that of which in England is called common law but might be
more expressively termed judiciary, there must be a great multitude of
laws, the import of which cannot be sufficiently made out for practice,
without referring to this common law, for more or less of the expository
matter belonging to them. Thus in England the exposition of the word
title, that basis of the of whole fabric of the laws of property, is nowhere
else to be found. And, as uncertainty is of the very essence of every
particle of law so denominated (for the instant it is clothed in a certain
authoritative form of words it changes its nature, and passes over to the
other denomination) hence it is that a great part of the laws in being in

---

Principles of Morals and Legislation/247
such countries remain uncertain and incomplete. What are those coun-
tries? To this hour, every one on the surface of the globe.
XXV. Had the science of architecture no fixed nomenclature be-
longing to it—were there no settled names for distinguishing the differ-
ent sorts of buildings nor the different parts of the same building from
each other—what would it be? It would be what the science of legisla-
tion, considered with respect to its form, remains at present.
Were there no architects who could distinguish a dwelling-house
from a barn, or a side-wall from a ceiling, what would architects be?
They would be what all legislators are at present.
XXVI. From this very slight and imperfect sketch, may be collected
not an answer to the questions in the text but an intimation, and that but
an imperfect one, of the course to be taken for giving such an answer;
and, at any rate, some idea of the difficulty, as well as of the necessity,
of the, task.
If it were thought necessary to recur to experience for proofs of this
difficulty, and this necessity, they need not be long wanting.
Take, for instance, so many well-meant endeavours on thc part of
popular bodies, and so many well-meant recommendations in ingenious
books, to restrain supreme representative assemblies from making laws
in such and such cases, or to such and such an effect. Such laws, to
answer the intended purpose, require a perfect mastery in the science of
law considered in respect of its form—in the sort of anatomy spoken of
in the preface to this work: but a perfect, or even a moderate insight into
that science, would prevent their being couched in those loose and inad-
equate terms, in which they may be observed so frequently to be con-
ceived; as a perfect acquaintance with the dictates of utility on that head
would, in many, if not in most, of those instances, discounsel the at-
tempt. Keep to the letter, and in attempting to prevent the making of bad
laws, you will find them prohibiting the making of the most necessary
laws, perhaps even of all laws: quit the letter, and they express no more
than if each man were to say, Your laws shall become ipso facto void,
as often as they contain any thing which is not to my mind.
Of such unhappy attempts, examples may be met with in the legis-
lation of many nations: but in none more frequently than in that newly-
created nation, one of the most enlightened, if not the most enlightened,
at this day on the globe.
XXVII. Take for instance the Declaration of Rights, enacted by the
State of North Carolina, in convention, in or about the month of Sep-

---

248/Jeremy Bentham
tember, 1788, and said to be copied, with a small exception, from one in
like manner enacted by the State of Virginia.
The following, to go no farther, is the first and fundamental article:
“That there are certain natural rights, of which men, when they
form a social compact, cannot deprive or divest their posterity, among
which are the enjoyment of life and liberty, with the means of acquiring,
possessing and protecting property, and pursuing and obtaining happi-
ness and safety.”
Not to dwell on the oversight of confining to posterity the benefit of
the rights thus declared, what follows? That—as against those whom
the protection, thus meant to be afforded, includes—every law, or other
order, divesting a man of the enjoyment of life or liberty, is void.
Therefore this is the case, amongst others, with every coercive law.
Therefore, as against the persons thus protected, every order, for
example, to pay money on the score of taxation, or of debt from indi-
vidual to, individual, or otherwise, is void: for the effect of it, if com-
plied with, is to “deprive and divest him”, pro tanto, of the enjoyment of
liberty, viz., the liberty of paying or not paying as he thinks proper: not
to mention the species opposed to imprisonment, in the event of such a
mode of coercion’s being resorted to: likewise of property, which is it-
self a “means of acquiring, possessing and protecting property, and of
pursuing and obtaining happiness and safety.”
Therefore also, as against such persons, every order to attack an
armed enemy, in time of war, is also void: for, the necessary effect of
such an order is to “deprive some of them of the enjoyment of life.”
The above-mentioned consequences may suffice for examples,
amongst an endless train of similar ones.
Leaning on his elbow, in an attitude of profound and solemn medi-
tation, “What a multitude of things there are ” (exclaimed the daneing-
master Marcel) “in a minuet! ”—May we now add?—and in a law.

---

Document Outline

• Contents
  • Preface 
  • I: Of The Principle of Utility 
  • Notes