Jurisprudence/Section 2

Meaning of the Word Protection, in the Jurisprudential Phrase, Protection of Rights.—The first Requisite to the Protection of Rights is to make them capable of being known.—Definition of Rights, the first Instrument of Protection.—Definition of the Acts by which Rights are violated, and the Application of Preventive Motives, another Instrument of Protection.—Civil and Penal Codes,—What.—Code of Procedure,—What.—Corpus Juris, or Body of Law,—What.

In the term protection, it is hardly necessary to give notice, that we do not here include protection against foreign enemies; that protection which is to be yielded by employing armies against invaders. The protection, of which it is the business of jurisprudence to find out and to describe the means, is that which is required by one member of the community against the other members. The members of the community, each of whom endeavours to have as much as possible of the objects of desire, will be disposed to take those objects one from another; to take them, either by force, or by fraud. The means of preservation must, therefore, be found. Certain members of the community, as organs of government, are furnished with powers for that purpose. The question is, what powers are required; and in what manner are they to be employed?

In proceeding to present what may be called a skeleton-map of the ill-explored country of Jurisprudence, it is necessary to warn the reader, that he must supply, by his own attention, what the limits of the work did not permit to be done for him. The several topics are rather indicated, than expounded. It is hoped they are indicated so clearly, that there will be no difficulty in spreading out the ideas in detail. It is necessary, however, that the reader should do this for himself. As the writer has not been able to dwell upon the several topics, though of the utmost importance, long enough to stamp the due impression of them upon the mind, unless the reader takes time to do this, by reflection on each topic, as it arrives, he will pass to the succeeding ones without due preparation, and the whole will be perused without interest, and without profit.

That a man's rights may be effectually secured, it is obviously necessary, in the first place, that they should be made capable of being accurately known. This seems to be so undeniable, that it would answer little purpose to enlarge in its illustration. It is, however, exceedingly necessary that the importance of this requisite should be clearly and adequately conceived. How can a man's rights be protected from encroachment, if what are his rights be uncertain or unknown? If the boundary by which his rights are distinguished is clear and conspicuous, it is itself a protection. It warns off invaders; it serves to strike them with awe; for it directs the eyes and indignation of mankind immediately and certainly to the offender. Where the boundary, on the other hand, is obscure and uncertain, so far scope is allowed for encroachment and invasion. When the question, to which of two men an article of property belongs, comes for decision to the judge, it is easy, if accurate marks are affixed, to point out and determine the rights of each. If no marks are attached, or such only as are obscure and variable, the decision must be arbitrary and uncertain. To that extent the benefit derived from the creation and existence of rights is diminished.

It is, therefore, demonstrable, and we may say demonstrated (the demonstration not being difficult), that, in the inquiry respecting the means of protecting rights, the Definition of Rights may be entered at the head of the list. Without this, as the ground-work, all other means are ineffectual. In proportion as rights can be ascertained, are the judicial functions, and judicial apparatus, capable of being employed to any beneficial purpose: in proportion to the facility with which they can be ascertained, is the extent of the benefit which the judicial functions are enabled to secure.

Such, then, is the first of the means necessary for the protection of rights: That they may receive the most perfect possible protection, they must be as accurately as possible defined.

In supposing that rights have need of protection, we suppose that there are acts by which rights are violated. With regard to those acts, the object is twofold; to redress the evil of the act when it has taken place; and to prevent the performance of such acts in future. To prevent the performance, two classes of means present themselves; to watch till the act is about to be committed, and then to interpose; or, to create motives which shall prevent the will to commit. It is but a small number of cases in which the first can be done; the latter is, therefore, the grand desideratum. From the view of these circumstances we discover two other articles in the catalogue of means. Those acts by which rights are violated require to be made accurately known; in other words to be defined; and the motives which are fitted to prevent them must be duly applied. Motives sufficient to that end can only be found in the painful class; and the act by which they are applied is denominated punishment. The definition, therefore, of offences or of the acts by which rights are violated and which it is expedient to punish, and the definition of the penalties by which they are prevented, are equally necessary with the definition of rights themselves. The reasons which demonstrate this necessity are so nearly the same with those which demonstrate the necessity of the definition of rights, that we deem it superfluous to repeat them.

The definition of rights constitutes that part of law which has been generally denominated the Civil Code. The definition of offences and punishments constitutes that other part of law which has been generally denominated the criminal or Penal Code.

When rights are distributed, and the acts by which they may be violated are forbidden, an agency is required, by which that distribution may be maintained, and the violators of it punished. That agency is denominated Judicature. The powers, by which this agency is constituted, require to be accurately defined; and the mode in which the agency itself is to be carried on must be fixed and pointed out by clear and determinate rules. These rules and definitions prescribe the form and practice of the courts, or mode in which the judicial functions are performed; and constitute that branch of law which has been called the Code of Procedure.

These three codes, the civil code, the penal code, and code of procedure, form together the whole subject of jurisprudence. Of the three, it sufficiently appears, that the last exists only for the sake of the other two. Courts and their operations are provided that the provisions of the civil and penal codes may not be without their effect. It is to be considered, therefore, as subordinate, and merely instrumental, in respect to the other two. They form the main body of the law; this is an accessary to the main body, though an accessary of indispensable use. It would be of great advantage to affix characteristic names to distinguish from one another the main and accessary parts of law. Unexceptionable names, however, it is not easy to find. Mr. Bentham, the great improver of this branch of knowledge, has called the civil and penal codes together, by the name of "substantive law," the code of procedure by that of "adjective law;" not, we may be satisfied, because he approved of those names, but because the language hardly afforded others to which equal objections would not apply. In the very sense in which either the term accessary, or the term adjective can be applied to the code of procedure, both may be applied to the penal code as it respects the civil. The penal code exists purely for the sake of the civil; that the rights, which are ordained by the legislature, and marked out by the terms of the code, may be saved from infringement. The civil code is therefore the end and object of all the rest. The code of procedure, however, is auxiliary to each of the other two; the penal code to no more than one.

Having now explained the nature of the three codes which constitute the body of law necessary for the protection of rights, it remains that we illustrate, as much in detail as our limits will permit, what is required for the perfection of each.