§1. Limits between Private Ethics and the Art of legislation
I. So much for the division of offenses in general. Now an offense is an act prohibited, or (what comes to the same thing) an act of which the contrary is commanded, by the law: and what is it that the law can be employed in doing, besides prohibiting and commanding? It should seem then, according to this view of the matter, that were we to have settled what may be proper to be done with relation to offences, we should thereby have settled every thing that may be proper to be done in the way of law. Yet that branch which concerns the method of dealing with offences, and which is termed sometimes the criminal, sometimes the penal, branch, is universally understood to be but one out of two branches which compose the whole subject of the art of legislation; that which is termed the civil being the other. Between these two branches then, it is evident enough, there cannot but be a very intimate connection; so intimate is it indeed, that the limits between them are by no means easy to mark out. The case is the same in some degree between the whole business of legislation (civil and penal branches taken together) and that of private ethics. Of these several limits however it will be in a manner necessary to exhibit some idea: lest, on the one hand, we should seem to leave any part of the subject that does belong to as untouched, or, on the other hand, to deviate on any side into a track which does not belong to us.
In the course of this enquiry, that part of it I mean which concerns the limits between the civil and the penal branch of law, it will be necessary to settle a number of points, of which the connection with the main question might not at first sight be suspected. To ascertain what sort of a thing a law is; what the parts are that are to be found in it; what it must contain in order to be complete; what the connection is between that part of a body of laws which belongs to the subject of procedure and the rest of the law at large:— all these, it will be seen, are so many problems, which must be solved before any satisfactory answer can be given to the main question above mentioned.
Nor is this their only use: for it is evident enough, that the notion of a complete law must first be fixed, before the legislator can in any case know what it is he has to do, or when his work is done.
II. Ethics at large may be defined, the art of directing men's actions to the production of the greatest possible quantity of happiness, on the part of those whose interest is in view.
III. What then are the actions which it can be in a man's power to direct? They must be either his own actions, or those of other agents. Ethics, in as far as it is the art of directing a man's own actions, may be styled the art of self-government, or private ethics.
IV. What other agents then are there, which, at the same time that they are under the influence of man's direction, are susceptible of happiness. They are of two sorts: Other human beings who are styled persons. Other animals, which, on account of their interests having been neglected by the insensibility of the ancient jurists, stand degraded into the class of things. As to other human beings, the art of directing their actions to the above end is what we mean, or at least the only thing which, upon the principle of utility, we ought to mean, by the art of government: which, in as far as the measures it displays itself in are of a permanent nature, is generally distinguished by the name of legislation: as it is by that of administration, when they are of a temporary nature, determined by the occurrences of the day.
V. Now human creatures, considered with respect to the maturity of their faculties, are either in an adult, or in a non-adult state. The art of government, in as far as it concerns the direction of the actions of persons in a non-adult state, may be termed the art of education. In as far as this business is entrusted with those who, in virtue of some private relationship, are in the main the best disposed to take upon them, and the best able to discharge, this office, it may be termed the art of private education: in as far as it is exercised by those whose province it is to superintend the conduct of the whole community, it may be termed the art of public education.