590

BENTHAM- -IDLE SUBDIVISIONS OF LAW.

too far. There seems to be nothing gained, for instance, either in the way of clearness or consistency, by arrang ing under the head of criminal law, those cases of refusal to fulfil contracts, or to perform obligations, for which no other punishment is or ought to be provided, but a compulsory fulfilment or performance. This is merely following out the injunction of the civil code, and cannot, either in law or in logic, be correctly regarded as a punishment. The proper practical test of a crime, is where, over and above the restitution of the violated right (where that is possible), the violator is subjected to a direct pain, in order to deter from the repetition of such offences.

In passing to the code of criminal law, Mr. Bentham does not forget the necessity of classifying and dividing. Delicts, according to him, are either, 1. Private, or against one or a few individuals; 2. Reflective, or against the delinquent himself; 3. Semipublic, or against some particular class or description of persons; and, finally, Public, or against the whole community. Private delicts again, relate either to the person, the property, the reputation or the condition; and they are distributed into complex and simple, principal and accessory, positive and negative, &c., &c. The chief evil of a crime is the alarm which it excites in the community; and the degree of this alarm, Mr. Bentham assumes, depends upon eight circumstances, the particular situation of the delinquent, his motives, his notoriety, his character, the difficulties or facilities of the attempt, &c. But here again, we see no sense in the enumeration; the plain fact being, that the alarm is increased by every thing which renders it probable that such acts may be frequently repeated. In one case, and one of considerable atrocity, there is no alarm at all; because the only beings who can be affected by it, are incapable of fear or suspicionthis is the case of infanticide: and Mr. Bentham ingeniously observes, that it is probably owing to this circumstance that the laws of many nations have been so extremely indifferent on that subject. In modern Europe, however, he conceives that they are barbarously severe,

HIS SUBSTITUTE FOR DUELLING.

591

In the case of certain crimes against the community, such as misgovernment of all kinds, the danger again is always infinitely greater than the alarm.

The remedies which law has provided against the mischief of crimes, Mr. Bentham says, are of four orders; preventive repressive compensatory - or simply penal. Upon the subject of compensation or satisfaction, Mr. Bentham is most copious and most original; and under the title of satisfation in honour, he presents us with a very calm, acute, and judicious inquiry into the effects of duelling; which he represents as the only remedy which the impolicy or impotency of our legislators has left for such offences. We do not think, however, that the same good sense prevails in what he subjoins, as to the means that might be employed to punish insults and attacks upon the honour of individuals. According to the enormity of the offence, he is for making the delinquent pronounce a discourse of humiliation, either standing, or on his knees, before the offended party, and clothed in emblematical robes, with a mask of a characteristic nature on his head, &c. There possibly may be countries where such contrivances might answer; but, with us, they would not only be ineffectual, but ridiculous.

In the choice of punishments, Mr. Bentham wishes legislators to recollect, that punishment is itself an evil; and that it consists of five parts;-the evil of restraint

the evil of suffering-the evil of apprehension - the evil of groundless persecution-and the evils that extend to the innocent connexions of the delinquent. For these reasons, he is anxious that no punishment should be inflicted without a real cause, or without being likely to influence the will; or where other remedies might have been employed; or in cases where the crime produces less evil than the punishment. These admonitions are all very proper, and, we dare say, sincere; but we cannot think that they are in any way recommended by their novelty.

In the section upon the indirect means of preventing crimes, there is a great deal of genius and strong rea

592

SCALE AND PREVENTION OF CRIMES.

soning; though there are many things set down in too rash and peremptory a manner, and some that are supported with a degree of flippancy not very suitable to the occasion. The five main sources of offence he thinks are, want of occupation, the angry passions, the passion of the sexes, the love of intoxication, and the love of gain. As society advances, all these lose a good deal of their mischievous tendency, excepting the last; against which, of course, the legislature should be more vigilant than ever. In the gradual predominance of the avaricious passions over all the rest, however, Mr. Bentham sees many topics of consolation; and concludes this part of his work by declaring, that it should be the great object of the criminal law to reduce all offences to that species which can be completely attoned for and repaired by payment of a sum of money. It is a part of his system, which we have forgotten to mention, that persons so injured should in all cases be entitled to reparation out of the public purse.

STEWART'S LIFE OF REID.

593

(JANUARY, 1804.)

Account of the Life and Writings of Thomas Reid, D.D. F. R. S., Edinburgh, late Professor of Moral Philosophy in the University of Glasgow. BY DUGALD STEWART, F. R. S. Edinburgh Read at different Meetings of the Royal Society at Edinburgh. 8vo. pp. 225. Edinburgh and London: 1803.

ALTHOUGH it is impossible to entertain greater respect for any names than we do for those that are united in the title of this work, we must be permitted to say, that there are many things with which we cannot agree, both in the system of Dr. Reid, and in Mr. Stewart's elucidation and defence of it. That elucidation begins, indeed, with a remark, which we are not at all disposed to controvert: that the distinguishing feature of Dr. Reid's philosophy is the systematical steadiness with which he has adhered to the course of correct observation, and the admirable self-command by which he has confined himself to the clear statement of the facts he has collected: But then Mr. Stewart immediately follows up this observation with a warm encomium on the inductive philosophy of Lord Bacon, and a copious and eloquent exposition of the vast advantage that may be expected from applying to the science of mind those sound rules of experimental philosophy that have undoubtedly guided us to all the splendid improvements in modern physics. From the time indeed that Mr. Hume published his treatise of human nature, down to the latest speculations of Condorcet and Mr. Stewart himself, we have observed this to be a favourite topic with all metaphy sical writers; and that those who have differed in almost every thing else, have agreed in magnifying the importance of such inquiries, and in predicting the approach of some striking improvement in the manner of conducting them.

Now, in these relations we cannot help suspecting that those philosophers have been misled in a consider able decree by a file analogy; and that their zeal for the promotion of their favourite studies has led them to form expectations somewhat sanine and extravagant, both as to their substantial utility and as to the pos sibility of their ultimate improvement. In reality, it does not appear to us that any great advancement in our knowledge of the operations of mind is to be expected from any improvement in the plan of investigation; or that the condition of mankind is likely to derive any great benefit from the cultivation of this interesting but abstracted study.

Inductive philosophy, or that which proceeds upon the careful observation of facts, may be applied to two different classes of phenomena. The first are those that can be made the subject of proper Experiment: where the substances are actually in our power, and the judg ment and artifice of the inquirer can be effectually employed to arrange and combine them in such a way as to disclose their most hidden properties and relations. The other class of phenomena are those that occur in substances that are placed altogether beyond our reach; the order and succession of which we are generally unable to control; and as to which we can do little more than collect and record the laws by which they appear to be governed. Those substances are not the subject of Experiment, but of Observation; and the knowledge we may obtain, by carefully watching their variations, is of a kind that does not directly increase the power which we might otherwise have had over them. seems evident, however, that it is principally in the former of these departments, or the strict experimental philosophy, that those splendid improvements have been made, which have erected so vast a trophy to the prospective genius of Bacon. The astronomy of Sir Isaac Newton is no exception to this general remark: All that mere Observation could do to determine the movements of the heavenly bodies, had been accomplished by the star-gazers who preceded him; and the law of gravita

It