CHAPTER 11
The Generality of a Law
To begin with the deficiencies to which the power of general legislation or legislation de classic bus is exposed.
The commands of a sovereign will like any other communications be liable to receive a tinge from the channel through which they are conveyed. A legislator in uttering a law which shall be general must in as far as it is intended to be general make use of general terms or names.
Conceive him then on any occasion to have taken up any such generic name. By this name a class suppose of subjects (no matter what) is brought to view. This class taken at a given period is composed of a certain number of individuals. As to these individuals then, by what means is it that they have come to be aggregated to this class? to be looked upon as belonging to it? to be the individuals who are deemed to have been had in view upon the mention of this name? By whatever means the event of their belonging to this class has come to pass, such event either depended or did not depend upon the will of a human being: if it did, such person has thereby a power: in the former case, whatever limitation the power of the legislator is subject to on this account, the power which remains to him, whatever it be, is still so far his own, that no other person is a sharer in it. In. the other case, the power of importation does not belong to him alone; he has a sharer or partner in it: and this partner is the person on whose will the event above mentioned has a dependence. The share which this person has in the entire power of importation may be termed the accensitive power or power of right of aggregation with regard to the class in question….
To every class of persons who in any manner stand affected by a law a certain condition or station in life is attributed by the fashion of language: a person being said to be of such or such a condition in virtue of his belonging to such or such a class. To aggregate a man then to a class is the same thing as to invest him with a condition. . . .
To juries, in most cases belongs in conjunction with the regular judges as also with prosecutors, witnesses and individual officers of justice, and other persons whose share in this power however inconspicuous. is not the less real, the power of aggregating persons in most cases to the disadvantageous class of delinquents, a class which is branched out into the various classes we have seen. They thence become the persons from whom the legislator has taken such and such rights, whom he has subjected to such and such obligations, and rendered obnoxious in the way of punishment or for other purposes to such and such applications of the impressive power, this branch of the accensitive power….
It is by this time, I suppose, sufficiently manifest that the legislative power ordinarily so called, I mean the power of legislating de classibus even though it be supreme, can never of itself be absolute and unlimited. It can never so much as amount to the entire power of imperation : it will fall short of being equal to that power by so much as is contained in whatever powers of aggregation or disaggregation are established in the state. .