[160-281v]

1821. June 18.

Codification Offer

'.8/10/. Foreigner why

'.3. II. Intellectual aptitude 2. Knowledge

in a genus of injury, to which, in every country, men of every race, stand at all times, exposed.

Thus a corporal injury will be an injury every where, and to every human being. But, in Hindoostan, for example, to the feeling of a certain race, corporal injury is produced, by a species of contact, by which no injury w d. be produced in any part of Europe.

So again in regard to simple mental injuries: including so many various forms of as yet undenominated injury, which have their seat nowhere but in the mind. By a portion of audible discourse, or by a visible exhibition, by which contempt is expressed, for opinions, to this or that effect, entertained in relation to religion,- pain of mind is liable to be produced. According to the amount of it, in the case of pain produced from this source, as in the case of pain produced from any other, the act, by which it is produced, may, under certain circumstances, be with propriety regarded and dealt with as injurious every where: but in some countries, and in the case of some persuasions on matters of religion, the description of the thus injurious discourse, or exhibition, will be of one sort: in others, of another.

Of the distinction between those universally applying and those exclusively applying circumstances, the above examples will, it is hoped, be found to afford a conception sufficient for the purpose. The distinction is capable of being carried, and in the proposed Code will of course be carried, throughout the whole field of legislation. In this place, to pursue it further, would be to force, so much of the matter belonging to the proposed Code, into a slight preliminary sketch extraneous to it.

Such being the distinction, now for the application of it to the case in hand. Of whatsoever country the draughtsman be a native, those circumstances, which are of universal occurrence and applicability, may be equally and perfectly present to his notice. For those shades of difference, which are peculiar to his own country, the native, as compared with the foreigner, will be - if not exclusively, at least preferably, qualified. But, suppose two men, the one a foreigner, the other a native, and the foreigner more freely conversant with the circumstances of universal occurrence than the native, and in all other particulars, better qualified for making, throughout the whole field of legislation, that provision, which those same circumstances require,- this supposed, that which without much difficulty may happen, is - that even in regard to these sam particular circumstances, it may be in his power to afford to the work a degree of aptitude such as but for him, could not have been possessed by it.