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A collection of scholarly works about individual liberty and free markets. A project of Liberty Fund, Inc.
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 9. https://oll.libertyfund.org/titles/1999,
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An 11 volume collection of the works of Jeremy Bentham edited by the philosophic radical and political reformer John Bowring. Vol. 9 contains Constitutional Code.
For a complete list of the titles in The Works of Jeremy Bentham see this page.
The text is in the public domain.
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
To the whole contents of this proposed code, one all-comprehensive objection will not fail to be opposed. In whatever political community, by which it were adopted, it would, to a greater or less extent, probably to a very large extent, involve the abolition of the existing institutions.
But, by whomsoever this unquestionable truth is put forward in the character of an objection, let it be understood what the confession is which is involved in it. It is,—that among the institutions, to which the objector is thus giving his support, there exist in an indefinite number, those, of the mischievousness of which he is himself fully conscious,—that, in what he is thus endeavouring at, he therefore acts, to his own full knowledge, the part of an enemy to the community to which he belongs, and for whose welfare he pretends to be solicitous.
The more absurd, the more mischievous the more abundantly productive of human misery in every shape, an institution or set of institutions, is, in the defence of which he is thus acting, the more necessarily is he reduced to have recourse to this mode of defence, and cry out against the subversion of ancient institutions. Suppose an institution, like that, for example, of sacrificing men to idols, as in ancient Mexico; or tormenting and slaughtering them for sport, as in modern Ashantee,—the most shameless corruptionist would not dare to stand up in defence of it, taken by itself. But neither for the defence of this institution, nor of any other still more atrocious, if any such were conceivable, would a corruptionist or lawyer in this or any other country, be wanting, if in so doing, they beheld any prospect of success; and unhappily, such is the weakness of human nature, that there are many down to this time, upon whom such a defence would make a great impression.
Such as it is, the present legislative draught is the first in point of time, in which any such additament as a rationale was ever inserted. Now that it does exist, the utility of its existence will not be matter of dispute. Of its non-existence hitherto, two causes may be assigned. In every government, not having for its object the greatest happiness of the greatest number,—want of inclination and want of ability both together. In a government, having for its object the greatest happiness of the greatest number, on the part of the leading class, namely, the lawyer class, want of inclination as to all three branches of the Pannomion, except the constitutional branch; and in relation to all three branches, and even that branch in particular, want of ability; want of that anticipation of ability, which being necessary even to the bare endeavour, is still more plainly so, to correspondent success. Nor need the deficiency of ability be an object of surprise. Wherever adequate motives are wanting, actions will be wanting likewise; physical desires out of the question, where motives are wanting, desires are naturally wanting; and with desires, endeavours. The quantity of labour necessary has been such as to fill up the ordinary capacity of a whole life; and in return for this burthen, what was the benefit that could by any one be expected?
Thus much as to legislators and legislative draughts. In regard to expositors and commentators, the absence of everything in the shape of a Rationale has not been thus entire. Fragments of the sort of work have even been seen in abundance. Of a Rationale, yes; but of what sort? Of a sort which, perhaps, not altogether without truth, may be pronounced worse than useless. Instead of giving existence to the arrangements, the Rationale has derived its existence from them. In the breast of the ruler, self-interest has given existence to the arrangements; in the breast of the commentator, self-interest has again given birth to the Rationale. To the only right and proper problem which the case admits of, has been substituted an opposite one. Right and proper problem,—to ascertain in each case that arrangement, which is, in the highest degree, contributory to the greatest happiness of the greatest number. Sinister problem, which has almost uniformly been substituted,—to ascertain, in each case, that arrangement, which, under existing circumstances, has, in the highest degree, the approbation of those, in whose hands is, in the greatest quantity, the disposal of the matter of reward in all its branches.
The political states, for the use of which this code is principally designed, are those in whose instance the existing form of government is republican.
To no inconsiderable extent, and in no inconsiderable detail, the features of inaptitude, or in a word the abuses, of the English form of government are brought to view. Useful and highly instructive, however, with reference to the main purpose, will this exposition be, as well as to what may be considered as Edition: current; Page: [2] an additional, though collateral purpose. For a republic it may serve, the whole of it together, at any time. For England, (independent of any such sudden revolution as, under the provocations given, will be always upon the cards,)* it may, in proportion as it is well adapted to its purpose, be of use in giving direction to the views of all such persons as may feel disposed to occupy themselves in the effecting of melioration by gradual changes, which, in so far as they are conducive to the professed end, will be so many approaches towards republicanism. To the establishment of a republican form of government, which is the term and ne plus ultra on the one hand, as a purely monarchical form of government is on the other, it will apply acceleration or retardation,—or the maximum of retardation, to wit, final prevention, according to circumstances; but in neither can the effect of it, in so far as it has any, fail of being productive of good. Prevention, is that the result? The good produced will, in that case, be pure from evil; but the arrival of the maximum of good, will either not take place at all, or not till at the end of a length of time more or less considerable. Retardation, is that the result? The number of persons excluded from a participation in the maximum of good will be the greater; but the good will be pure from admixture with evil in those shapes which are inseparable from all change, preceded by hostile contention, or sudden and uncompensated transfer of property or power.
In proportion as, of the arrangements here proposed, and the reasons on which they are grounded and by which they are explained and justified, or at least endeavoured to be justified, application is made to the corresponding arrangements, made by English law or English practice, the reader will observe, that from first to last, with few or no exceptions, nothing can be more opposite.
For expressing the cause of this contrariety, few, indeed, are the words that will be found sufficient. In each case the contrariety will be found to have one and the same cause, namely, the nature of the end in view; that end being, in each one of the two cases, the direct opposite of that which it is in the other. In the here proposed code, of every proposed arrangement, from first to last, without any one exception, the end in view is the greatest happiness of the greatest number. Of the several arrangements in the English system, in no one instance has the greatest happiness of the greatest number been the end in view. At all times,—on every occasion,—in every instance, the end actually pursued by the several sets of rulers, has been the promotion of the particular, and thence sinister, interest of these same rulers. Look the world all over, in no one place,—at no one time, has any arrangement of government had for its object, any other object than the interest of those by whom it has been made. In this case as in every other, in so far as the felicity of the greatest number has been the result, the cause of its being so, is, that in the particular case in question, whilst seeking the insurance of their own personal felicity, it was not in their power to avoid seeking the insurance of the felicity of the greatest number.
But under the English government, not to speak of others, those by whom the powers of government have been exercised, have at all times had an interest and a desire operating in direct opposition to those of their subjects; and having, by the supposition, the power in their hands, the corresponding power to give effect to that same interest and that same desire, such accordingly has been the consequence; the sacrifice of the interest and felicity of the greatest number to the particular and sinister interest of those same rulers.
In no instance has any benefit, the receipt of which, (if received by the governed,) would have been attended with any corresponding sacrifice in any shape on the part of the rulers, been conferred on the people but under a sense of necessity, and with reluctance: in no case, of design,—never but either of necessity or accident has any such benefit been the result.
Taking, therefore, the whole system of government, in all its parts, and more particularly the constitutional branch, never in the direct ratio, always in the inverse ratio of its strength, has been the felicity of the people.
At no time have the constituent members of the governing body, at no time has the monarch, at no time have the hereditary aristocracy, at no time have the proprietors of seats in the House of Commons,† at no time have the clergy, at no time have the judges, had any better endeavour or desire than to swell each of them his own power to its utmost possible pitch. To the weakness of the law taken in its totality,—to its weakness, and not to its strength, are the people indebted for everything in their condition, by which they are distinguished from that country in Europe, whatever it be, in which the people are in the most miserable degree oppressed. And this weakness, from what source has it arisen?—from the sinister interest and particular situation of the lawyer tribe.
Now for the first time is the invitation given to examine and discuss the most interesting of all temporal subjects, on the ground of a set of determinate and throughout mutually connected, and, it is hoped, consistent principles. Now for the first time to the subject-matter of this proposed examination and discussion, is given the form and method of the matter of a distinctive branch of art and corresponding science.
In so far as what is said is right and true, will be afforded the utmost facility of conception; Edition: current; Page: [3] to whatever is erroneous and false will be afforded a correspondent facility of and for detection and exposure.
The constitutional code is the first in importance, as on it will depend the matter of all the other codes.
As in the physical, so in the moral branch of the field of thought and action, parts still remain which may be stated as being as yet unexplored. In the political branch, in that subbranch of the moral, one topic is that which regards the rights and the obligations of one-half of the species—the female sex: the rights which it is fit they should possess, the obligations to which it is fit they should be subjected. This inquiry stretches itself over all three parts of the Pannomion—the constitutional, the civil, or right-conferring, and the wrong-repressing—or say the penal. Others there are which belong exclusively to the penal; but of these, the mention may, with more advantage, be reserved for the code to which as above, they belong.
Should it ever happen to the present work to be taken for the basis of the constitutional code of any nation, that which presents itself as the proper way of putting it to use, is this. In the code to which authority is given, insert the enactive part, and the ratiocinative and the expositive; eliminate the instructional and the exemplificational.
Why eliminate the instructional and the exemplificational?—Because neither of them has any other object than the giving assistance to the legislator in the task of composing the authoritative code, in the composition of which he will have derived from them such information as appears to him useful; and the remainder not being designed to serve as a rule of action for the people, need not, and therefore should not, lie as a burthen upon their pockets and their time.
Why insert the expositive and the ratiocinative? The expositive, because regarded as necessary to right interpretation; the ratiocinative as being assistant to right interpretation, and as helping to create and preserve in the minds of the people, a persuasion of the aptitude of the enactive, and a disposition to lend their assistance, as occasion calls, to the giving execution and effect to it, and as serving to produce the like persuasion in the breasts of legislators, present and future, and thereby preserve the law itself against changes from the better to the worse. Also, to create and preserve in the breasts of judges the disposition to act their parts in giving execution and effect to it.
Not for amusement assuredly, were the lists and explanations of the various subject-matters and functions, inserted in this code, any more than the like might be in an index or a dictionary. No more need, therefore, has the reader of this proposed code to read them in the order in which they stand, unless for some special use, any more than to read the same quantity of matter in the one or the other of those useful fruits of hard labour in the field of literature. Not for amusement but for substantial use. Subject-matters for the purpose of making as sure as the faculties of the labourer will admit, that nothing which the purpose required to be noticed had been left unnoticed, and for that of making the reader satisfied that everything which the purpose required to be noticed has been noticed accordingly.
The term functions has been employed for the sake of conciseness, correctness, clearness, and symmetry. But for this comprehensive denomination, where arrangements were intended to be the same, assemblages of words, more or less different from one another, would have been apt to have been employed in giving expression to them; and from this diversity in expression, diversity of meaning might, on each occasion, have naturally been inferred. But by a single word, with a few others, necessary to complete it into a proposition, less space by an indefinite amount will be occupied than would be occupied by any equivalent phrase of which this same word formed no part,—hence, in a proportionate degree, conciseness.
If in any one of these same instances, the word function, with the attribute connected with it, is the proper one, so by the supposition is it in every other: so much for correctness.
If in any one of these same instances, the import meant to be conveyed is clear, so will it be in every other. For, there being no obscurity in it on the first that occurs of those occasions, so neither can there be on any other. As little can there be any ambiguity. So much for clearness.
Symmetry, or say uniformity. That which, in relation to the multitude of objects, symmetry requires is, that each of them be presented to view in forms mutually agreeing; but no two forms that are in any particular different, can agree so well as the same form does with itself. And as to the order in which they present themselves, it will, on each occasion, be that which on that same occasion, is best adapted to the writer's purposes. Those objects which require to be put together will have presented themselves together in the compass of this single word, and in exactly the same form.
One error in practice there is, against which it seems necessary to give warning, it being at once so mischievous, so natural, and so common. This is, the depriving the people of the benefit of such parts of what is proposed as are not unsuitable to the existing form of government, on account of their contiguity to others which are unsuitable to it.
To whatever portion of the field of thought Edition: current; Page: [4] and action the literary work in question belongs, it has been found convenient, and is accordingly usual, to place at the beginning of it some opinion or opinions, embracing in their extent the whole of the portion in question, or as large a portion of it as may be.
On this occasion a number of expressions mutually related, are found needful or convenient, and are accordingly usually employed.
Take, for example, first principles, leading principle, first lines, outlines, positions, axioms, aphorisms.
If, in the composition of the work, the design be to recommend a certain course of action as proper to be pursued for the attainment of a certain end, thereupon come certain other words and phrases of correspondently extensive import. Of this sort are ends, objects of pursuit, means, obstacles,—helps, counterforces, acting in opposition to the obstacles.
Where the object of the inquiry and discussion is, what is the course of action which, with relation to the field in question, is proper to be pursued? a necessarily concomitant object of regard throughout is,—the course actually pursued: pursued in the community which the writer has in view.
If the course actually pursued is in all points the same with the course proper to be pursued, it is well; and unless on the supposition that, in default of apposite warning and instruction, a departure to an extent more or less considerable may have place, any work on the subject in question would be useless, and by him in whose opinion such coincidence has place, cannot consistently be undertaken.
In regard to some expressions, viz. course proper to be pursued, course not proper to be pursued; one matter of fact there is, which, on every occasion, it may be of use to the reader to have in mind. This is, that everything, of which any such phrase can be, in an immediate way the expression, is a certain state of mind on the part of him by whom the expression is employed; the state of his mind with relation to the subject-matter of the discourse, whatsoever it happens to be.
The state of mind will be the state of one or more of his intellectual faculties, in one word, his understanding,—or the state of his sensitive faculties, in one word, his feelings, or the state of his volitional faculties, in one word, his will, his desires, his wishes.
Thus in the case here at present on the carpet. When I say the greatest happiness of the whole community, ought to be the end or object of pursuit, in every branch of the law—of the political rule of action, and of the constitutional branch in particular, what is it that I express?—this and no more, namely that it is my wish, my desire, to see it taken for such, by those who, in the community in question, are actually in possession of the powers of government; taken for such, on the occasion of every arrangement made by them in the exercise of such their powers, so that their endeavours shall be, to render such their cause of action contributory to the obtainment of that same end. Such then is the state of that faculty in me which is termed the will; such is the state of those particular acts or modifications of that faculty, which are termed wishes or desires, and which have their immediate efficient causes in corresponding feelings, in corresponding pleasures and pains, such as, on the occasion in question, the imagination brings to view.
In making this assertion, I make a statement relative to a matter of fact, namely that which, at the time in question, is passing in the interior of my own mind;—how far this statement is correct, is a matter on which it belongs to the reader, if it be worth his while, to form his judgment.
Such then being the desire, truly or falsely expressed by me, but at any rate expressed by me—in his breast has that same desire a place? If so, then may it be worth his while to apply his attention to the course herein marked out by me, under the notion of its being correspondent, and contributory, and conducive to the attainment of that same end. On the other hand, if so it be, that that same desire has no place in his breast, on that supposition, generally speaking, it will be a useless trouble to him to pay any further attention to anything contained in it.
To this observation one exception, it is true, there is, and it is this, namely, that if the end in view, which it is his wish to see pursued, is different from this, it may be of use to him to take note of the arrangements herein proposed, as conducive to the end pursued by me, for the purpose of taking or recommending, such different and opposite arrangements as may prevent the attainment of the end proposed by me, and procure or promote the attainment of that other end, be it what it may, which is more agreeable to his wishes,—say, for example, the greatest happiness of some one member of the community in question, or of some other number smaller than the majority of the whole number of the members.
So again, when I say,—In the breast of every ruler, on the occasion of the arrangements taken by him in the field of government, the actual end or object of pursuit, has, in the instance of every such arrangement, been his own greatest happiness, and that, in such sort as that wherever in his judgment there has been a competition between his happiness; and that of all the other members of the community in question taken together, he has, on each occasion, given the preference to his own happiness over theirs, and used his endeavours to giving increase to his own happiness, in whatsoever degree the aggregate of their happiness may, in his judgment, he lessened by it,—in saying this, I have been exhibiting the state of my own mind, viewed in another point of view, viewed as it were in another part of it—my judgment, the judicial faculty. I have given that, as my opinion, an opinion of Edition: current; Page: [5] which I am prepared to bring to view the efficient causes.
While I am so doing, I observe another writer who, on the score of my so doing, taxes me with egotism, or, to use another word, with dogmatism; meaning by dogmatism, the doing something which it is his wish, his desire, should not be done.
In answer to this charge what I say is, that either a man must do this, or he must forbear to write at all, for that it is not possible for a man to write without doing thus.
But this defence against the charge of dogmatism is not confined to self-defence against the charge of dogmatism: it has for its object the giving warning against that form of discourse to which the imputation expressed by the word dogmatism does really and properly attach.
In a work of self-biography, personality, called in English, when disapproved of, egotism, is at once unavoidable and agreeable. In a work on legislation, except in so far as it is unavoidable it is irrelevant, impertinent, and disagreeable. In a certain case, in the mouth of a public functionary, it is not only impertinent but insulting; and thereby, to every individual who is not by habit inured to insult, supremely disagreeable. This is where the rest of the community being brought upon the stage in the character of subjects of property, the speaker brings himself to view in the character of proprietor or owner of the property. Thus to speak is to spit in the face of every one who either hears or reads it.
The present is an occasion on which personality is unavoidable.
In saying, as above, the proper end of government is the greatest happiness of all, or, in case of competition, the greatest happiness of the greatest number, it seems to me that I have made a declaration of peace and good-will to all men.
On the other hand, were I to say, the proper end of government is the greatest happiness of some one, naming him, or of some few, naming them, it seems to me that I should be making a declaration of war against all men, with the exception of that one, or of those few.
Be the subject what it may, unless it be allowed to me to say, what, in relation to that subject, are my judgment, my feelings, or my desires, I cannot say anything in relation to it; and as to my judgment on each occasion, giving it, as I do, for no more than it is worth, it seems to me that it is on my part no unreasonable desire to be allowed—free from every imputation conveyed, or endeavoured to be conveyed, by the word dogmatism—to be allowed to give it.
This being the basis on which all legislation and all morality rests, these few words written in hopes of clearing away all obscurity and ambiguity, all doubts and difficulties, will not, I hope, be regarded as misapplied, or applied in waste.
The right and proper end of government in every political community, is the greatest happiness of all the individuals of which it is composed, say, in other words, the greatest happiness of the greatest number.
In speaking of the correspondent first principle, call it the greatest-happiness principle.
In speaking of this end of government, call it the right and proper end of government.
The actual end of government is, in every political community, the greatest happiness of those, whether one or many, by whom the powers of government are exercised.
In general terms, the proof of this position may be referred to particular experience, as brought to view by the history of all nations.
This experience may be termed particular, inasmuch as the particular class of rulers is the only class concerned in it, to which it bears reference. This may be called the experimental or practical proof.
For further proof, reference may be made to the general, indeed the all-comprehensive, principle of human nature. The position which takes this fact for its subject, may be termed an axiom, and may be expressed in the words following.
In the general tenor of life, in every human breast, self-regarding interest is predominant over all other interests put together. More shortly thus,—Self-regard is predominant,—or thus,—Self-preference has place everywhere.
This position may, to some eyes, present itself in the character of an axiom: as such self-evident, and not standing in need of proof. To others, as a position or proposition which, how clearly soever true, still stands in need of proof.
To deliver a position in the character of an axiom, is to deliver it under the expectation that, either it will not be controverted at all, or that he by whom it is controverted, will not, in justification of the denial given by him to it, be able to advance anything by which the unreasonableness of his opinion or pretended opinion, will not be exposed. Of this stamp are the axioms laid down by Euclid. In the axioms so laid down by him, nothing of dogmatism will, it is believed, be found.
By the principle of self-preference, understand that propensity in human nature, by which, on the occasion of every act he exercises, every human being is led to pursue that line of conduct which, according to his view of the case, taken by him at the moment, will be in the highest degree contributory to his own greatest happiness, whatsoever be the effect of it, in relation to the happiness of other similar beings, any or all of them taken together. For the satisfaction of those who may doubt, reference may be made to the existence of the species as being of itself a proof, and Edition: current; Page: [6] that a conclusive one. For after exception made of the case of children not arrived at the age of which they are capable of going alone, or adults reduced by infirmity to a helpless state; take any two individuals, A and B, and suppose the whole care of the happiness of A confined to the breast of B, A himself not having any part in it; and the whole care of the happiness of B confined to the breast of A, B himself not having any part in it, and this to be the case throughout, it will soon appear that, in this state of things, the species could not continue in existence, and that a few months, not to say weeks or days, would suffice for the annihilation of it.
Of all modes in which, for the governance of one and the same individual, the two faculties could be conceived as placed in different seats,—sensation and consequent desire in one breast, judgment and consequent action in another, this is the most simple. If, as has with less truth been said of the blind leading the blind, both would, in such a state of things, be continually falling into the ditch; much more frequently, and more speedily fatal, would be the falls, supposing the separation to have place upon any more complex plan. Suppose the care of the happiness of A being taken altogether from A, were divided between B and C, the happiness of B and C being provided for in the same complex manner, and so on; the greater the complication, the more speedy would the destruction be, and the more flagrant the absurdity of a supposition, assuming the existence of such a state of things.
Note that, if in the situation of ruler, the truth of this position, held good in no more than a bare majority, of the whole number of instances, it would suffice for every practical purpose, in the character of a ground for all political arrangements; in the character of a consideration, by which the location of the several portions of the aggregate mass of political power should be determined; for, in the way of induction, it is only by the greater, and not the lesser number of instances, that the general conclusion can reasonably be determined; in a word, mathematically speaking, the probability of a future contingent event, is in the direct ratio of the number of instances in which an event of the same sort has happened, to the number of those in which it has not happened; it is in this direct ratio, and not in the inverse.
If such were the condition of human beings, that the happiness of no one being came in competition with that of any other,—that is to say, if the happiness of each, or of any one, could receive increase to an unlimited amount, without having the effect of producing decrease in the happiness of any other, then the above expression* might serve without limitation or explanation. But on every occasion, the happiness of every individual is liable to come into competition with the happiness of every other. If, for example, in a house containing two individuals, for the space of a month, there be a supply of food barely sufficient to continue for that time; not merely the happiness of each, but the existence of each, stands in competition with, and is incompatible with the existence of the other.
Hence it is, that to serve for all occasions, instead of saying the greatest happiness of all, it becomes necessary to use the expression, the greatest happiness of the greatest number.
If, however, instead of the word happiness, the word interest is employed, the phrase universal interest may be employed as corresponding indifferently to the interest of the greatest number, or to the interest of all.
In the eyes of every impartial arbiter, writing in the character of legislator, and having exactly the same regard for the happiness of every member of the community in question, as for that of every other, the greatest happiness of the greatest number of the members of that same community, cannot but be recognised in the character of the right and proper and sole right and proper end of government, or say, object of pursuit.
For the designation of the opposite, or reverse of what is right and proper, the term sinister may, in consideration of the relation borne to each other by the two terms, taken in their original physical sense, be employed.
Accordingly, in so far as between the happiness of the greatest number, and the happiness of any lesser number, any incompatibility or successful competition is allowed to have place, it may be styled a sinister end of government, or say, object of pursuit.
If as above, so it be, that in the situation of a ruler, whatsoever that situation be, the conduct of no man can reasonably be expected to be governed by any interest that stands, at that same moment, in opposition to that which, in his conception, is his own individual interest, it follows, that for causing it to take that direction, in which it will be subservient to the universal interest, the nature of the case affords no other method, than that which consists in the bringing of the particular interest of rulers into accordance with the universal interest.
Here, then, we have a third principle of the first rank, in addition to the two former ones. Call it, the means-prescribing, or junction-of-interests-prescribing, principle.
The first declares, what ought to be, the next, what is, the last, the means of bringing what is into accordance with what ought to be.
Meantime, this junction of interests, how can it be effected? The nature of the case admits but of one method, which is, the destroying the influence and effect of whatever sinister interest the situation of the individual may expose him to the action of; this being Edition: current; Page: [7] accomplished, he will thereby be virtually divested of all such sinister interest; remains, as the only interest whereby his conduct can be determined, his right and proper interest, that interest which consists in the share he has in the universal interest, which is the same thing as to say, that interest, which is in accordance with the universal interest, taken in the aggregate.
Be the act what it may, there are two modes, in either of which a man may be divested of the interest requisite to his performance of it: one is, the overpowering the force of whatsoever body of interest may be acting on him, in a direction tending to engage him in the performance of it, by a stronger counter-interest; this is the direct mode. The other is, the divesting him of the power of performing that same act; for that which, in his own eyes, it is not in a man's power to perform, it cannot, in his own eyes, be his interest to endeavour to perform; it can never be a man's interest to expend time and labour without effect. Considered in its application to a man's interest, this mode may be termed an indirect mode.
Thus it is, that by one and the same arrangement, application may be made to the power and the will at the same time, and in either mode the requisite junction of interests is capable of being effected or promoted.
A question that now immediately presents itself, is, whether to any individual, supposing him invested by the constitution in question with the supreme power, any inducement can be applied, by that same constitution, of sufficient force to overpower any sinister interest, to the operation of which, by his situation, he stands exposed? Inducements, operating on interest, are all of them reducible to two denominations,—punishment and reward. Punishment in every shape his situation suffices to prevent his standing exposed to; so likewise reward. Being by the supposition invested with supreme power, the matter of reward cannot be applied to him in any shape, in which he has not already at his command, whatever it would be in the power of the constitution, by any particular arrangement, to confer on him. To him who has the whole, it is useless to give this or that part.
To a question to this effect, the only answer that can be given is sufficiently manifest. By reward, an individual so situated cannot be acted upon; for there exists no other individual in the community at whose hands he can receive more than he has in his own. By punishment as little; for there exists no individual at whose hands he is obliged to receive, or will receive any such thing.
The result is, that in a monarchy no such junction of interests can be effected, and that, therefore, by no means can monarchy be rendered conducive to the production of the greatest happiness of the greatest number; nor, therefore, according to the greatest happiness-principle, be susceptible of the denomination of a good form of government.
What, then, is the best form of government? This question may itself be clothed in an indefinite number of forms. What is the most eligible? what is the most desirable? what is the most expedient? what is the most right and proper? and so on. In whatsoever form clothed, it is resolvable into these two:—What is the end to which it is your will to see the arrangements employed in the delineation of it directed? What are the several arrangements by which, in the character of means, it is your opinion that that same end, in so far as attainable, is most likely to be attained?
To write an answer to this question—to write on the subject which it holds up to view—is virtually, is in effect, from beginning to end, to write an answer to one or other, or both of these questions.
To the first, my answer is,—the greatest happiness of all the several members of the community in question, taken together, is the end to which it is my desire to see all the arrangements employed in the delineation of it directed. That being taken for the end, to which it is right and proper that all legislative arrangements be directed, my opinion is, that so far as they go, the proposed arrangements which here follow would be in a higher degree conducive to it than any other could be, that could be proposed in a work which was not particularly adapted to the situation of any one country, to the exclusion of all others.
Should it be asked, What is the community which, by the description of the community in question, you have in view? my answer is,—any community, which is as much as to say every community whatsoever.
Should it be asked, Why is it your desire that the greatest happiness of all the several members of the community in question should be the end to which all the several arrangements employed in the delineation of the form of government, by which that same community is governed, should be directed? my answer is,—because on the occasion in question, such is the form, the establishment of which would in the highest degree be contributory to my own greatest happiness.
Should it again be asked by any man, What proof can you give of this? what cause can any other person have for regarding as probable that what you are thus saying is conformable to truth? the only answer which would not be irrelevant, impertinent, egotistical, is this: Behold, for proof, the labour it cannot but have cost me to give expression to these several arrangements, and the so much greater labour which it cannot but have cost me to bring to view the reasons which stand annexed to them,—reasons which have for their object the causing them to be adopted and made law by the persons to whom, in the several communities, the power of determining on every occasion what shall be taken for law, Edition: current; Page: [8] and have the force of law, depends; viz. by showing that on each subject they are in a higher degree conducive to that end than any others that could be proposed.
In saying thus much, I have already laid down what, in my view of the matter, are the two positions, of which, in the character of first principles, the whole sequel of this work will be no more than the development and the application.
These principles are the greatest happiness-principle and the self-preference principle.
On viewing the aggregate of that which in any country has the force of law, it will be found divisible, in the first place, the whole of it, into two portions or branches, viz. in the first place, that in which the rule of action is laid down simply and absolutely, without reference to the functions of any such members of the community as those whose business it is, under some such name as that of judges, or ministers of justice, to secure the observance of it; in the next place, that in which a description is given of the course to be taken by those same official persons for securing the observance of, and giving execution and effect to, the several arrangements contained in that same main or substantive branch. This branch may be distinguished by the name of the adjective branch, or law of judiciary procedure.
The main or substantive portion, or branch of the law, may again be distinguished into two portions or branches. In the first place, that in which individuals are considered separately only, and in their private capacity. This may be distinguished by the name of private law. In the next place, that in which individuals are regarded collectively, and in some public capacity, with a view to the powers necessary to be exercised by some of them over others, for the good of the whole. This branch may be distinguished by the name of public or constitutional law.
The law cannot in any part of it operate without doing more or less towards the making distribution of benefits and burthens.
Burthens it may distribute or impose without distributing or conferring benefit, in any shape. Benefit in any shape it cannot confer, without, at the same time, imposing burthen in a correspondent shape, either on the individual benefited, or intended to be benefited, or on some other or others, most commonly even on all others, with little or no exception.
The whole body of the law may again, by another division, derived from the source just mentioned, be distinguished into two branches, viz. that which is occupied in the description of the distribution intended to be made of benefits and burthens respectively as above. This branch may be styled the distributive branch of law. It is that which is occupied in the description of the arrangements for giving effect to such distribution, by furnishing individuals with inducements adequate to the purpose of rendering their conduct conformable to the plan of distribution so marked out. Of the inducements thus employed, some will be of a disagreeable nature, and thus come under the notion of burthens; others of an agreeable nature, and thus come under the notion of benefits.
That branch of law, the arrangements of which are occupied in the application of burthens to the purpose of securing conformity to the arrangements made by the distributive branch of law, is distinguished by the name of penal law.
That branch of law, the arrangements of which are occupied in the application of benefits to the purpose of securing conformity to the arrangements made by the distributive branch of law, may be distinguished by the name of the remuneratory or remunerative branch of law.
Of the whole body of actual law one preeminently remarkable division, derived from a correspondently remarkable source, and pervading the whole mass, still remains. It is that by which it is distinguished into two branches—the arrangements of one of which are arrangements that have really been made—made by hands universally acknowledged as duly authorized, and competent to the making of such arrangements, viz. the hands of a legislator-general, or set of legislators-general, or their respective subordinates. This branch of law may stand distinguished from that which is correspondent and opposite to it, by the name of real law, really existing law, legislator-made law;—under the English Government it stands already distinguished by the name of statute law, as also by the uncharacteristic, undiscriminative, and, in so far improper appellation, of written law. The arrangements supposed to be made by the other branch, in so far as they are arrangements of a general nature, applying not only to individuals assignable, but to the community at large, or to individuals not individuals assignable, may stand distinguished by the appellations of unreal, not really existing, imaginary, fictitious, spurious, judge-made, law. Under the English Government the division actually distinguished by the unexpressive, uncharacteristic, and unappropriate names of common law and unwritten law.
Of the manner in which this wretched substitute to real and genuine law is formed, take this description. In the course of a suit in which application is made of the rule of action thus composed, the judge, on each occasion, pretends to find ready made, and by competent authority, endued with the force of law, (and at the same time, universally known to be so Edition: current; Page: [9] in existence, and so in force,) a proposition of a general aspect, adapted to the purpose of affording sufficient authority and warrant for the particular decision or order, which on that individual occasion he accordingly pronounces and delivers.
Partly from the consideration of the general propositions so framed, as above, by this or that judge, or set of judges; partly from the consideration of the individual instruments or documents expressive of such individual decision or order, as above; partly from the consideration of such discourses as have been, or are supposed to have been, uttered whether by the judges or by the advocates on one or both sides,—a class of lawyers have, under the names of general treatises, or reports of particular cases, concurred in the composition of an immense chaos, the whole of it written, and a vast portion of it printed and published, constituting an ever-increasing body of that which forms the matter, which passes under the denomination, of unwritten law.
In every community in which a constitutional code, generally acknowledged to be in force, is in existence, a really existing constitutional branch of law, and with it, as the offspring of it, a constitution, is so far in existence.
In no community in which no constitutional code thus generally acknowledged to be in force, is in existence, is any such branch of law as a constitutional branch, or any such thing as a constitution, really in existence.
In a community in which, as above, no such thing as a constitution is really to be found, things to each of which the name of a constitution is given, are to be found in endless multitudes. On each occasion, the thing designated by the phrase "the constitution," is a substitute for a constitution,—a substitute framed by the imagination of the person by whom this phrase is uttered, framed by him, and, of course, adapted to that which, in his mind, is the purpose of the moment, whatsoever that purpose be; in so far as that purpose is the promoting the creation or preservation of an absolutely monarchical form of government, the constitution thus imagined and invented by him is of the absolutely monarchical cast; in so far as that purpose is the promoting the creation or preservation of a limitedly monarchical form of government, it is of the limitedly monarchical cast; in so far as the purpose is the creation or preservation of a democratical form of government, it is of the democratic cast.
The Anglo-American United States have a constitution. They have a constitutional code; the constitution is the system of arrangements delineated in that code.
It has for its object the greatest happiness of the greatest number, and in pursuit of that object, the powers of government are allotted by it to the greatest number.
The French and Spanish nations have constitutions. The English monarchy has no constitution, for it has no all-comprehensive constitutional code, nor in short, any constitutional code whatsoever generally acknowledged as such; nor by any one individual of the whole community acknowledged as such. Hence, so it is, that of the assertion contained in the phrases, "excellent constitution,"—"matchless constitution," an assertion by which every endeavour to produce the effect of the worst constitution possible is so naturally accompanied, no disproof can be opposed otherwise than by the assertion of a plain and universally notorious matter of fact, viz.—that the English people have no constitution at all belonging to them. England, not having any constitution at all, has no excellent, no matchless constitution; for nothing has no properties. If ever it has a constitution, that constitution will most probably be a democratical one; for nothing less than an insurrection on the part of the greatest number, will suffice to surmount and subdue so vast a power as that which is composed of the conjunct action of force, intimidation, corruption, and delusion.
The constitutional branch of law, is that branch, by which designation is made of that person, or those persons, to whose power it is intended, that on each occasion, the conduct of all the other members of the community in question shall be subjected.
The power which is here conferred is the supreme power.
Of the supreme power thus designated, that is to say, of the aggregate of the operations by which the exercise of it is performed, there are, of necessity, two perfectly distinct branches, the operative and the constitutive: the operative, is exercised by the declaration made of the all-directing will above alluded to; the constitutive, is exercised by the determination made of the individual or individuals, by whom the operative power is exercised.
Constitutional law has for its object, security against misrule; security against those adversaries of the community, in whose instance, while their situation bestows on them the denomination of rulers, the use they make of it, adds the adjunct evil, and thus denominates them evil rulers.
In a code of constitutional law, as has been already observed, arrangements of two different complexions must have place; one set of the nature of those belonging to the distributive or civil branch of law, having for their occupation the distribution of the powers of government, with the opposite and correspondent burthens: the other set presenting a penal aspect, having, for their occupation, the giving a description of a particular class of crimes, and of the means employed against Edition: current; Page: [10] them, in the character of remedies. But that the thread may not be interrupted, convenience recommends the placing what belongs to these crimes, in company with what belongs to others, in the penal code. On the occasion of ordinary offences, the persons against whose mischievous enterprises, the security is to be afforded, are individuals at large. On the occasion of this particular class of crimes, to individuals considered in the character of subjects are added, or substituted, individuals considered in the character of rulers. This distinction, the draughtsman will, when occupied on the penal code, at all times keep in view.
In the situation of a ruler as such, in a monarchy, no act that he can commit, be it in ever so high a degree mischievous, wears the denomination of a crime: king, or by what other denomination designated, a ruler can do no wrong. For the same evil act which, if committed by a subject, would be wrong, becomes, by the mere circumstance of its being committed by a ruler, not wrong, but right.
So far as it wears the complexion of penal law, constitutional law has these two for its distinguishable and contrasted objects: first, the ordering matters so, that those who, to some purposes and on some occasions, occupy the situation of rulers, shall, in respect of their conduct in that and other situations, be liable to be dealt with, in the character of offenders, delinquents, criminals: could the ordering matters so, that to acts done in resistance to, or for prevention of, misrule, and thence productive of more good than evil,—to such acts, of whatever penal denomination they may appear susceptible, no such punishment, if any, shall be allotted, as might, with propriety, be allotted to them, if the application of them to the prevention of misrule had no place.
Under an absolute monarchy, the constitutional branch of the law has, for its sole actual end, the greatest happiness of the one individual, in whose hands without division, the whole of the supreme operative power is lodged.
For decency's sake, the end thus actually and exclusively pursued, is not the end professed and declared to be pursued. For the designation of the end actually pursued, regard for decency and conciseness, substitutes, on each occasion, one or another of a small assortment of phrases: preservation of order, preservation of legitimacy, for example.
Under a limited monarchy, the constitutional branch of law has, for its actual object, a more complex object; viz. the greatest happiness of the monarch, coupled with, and limited by, the greatest happiness of the conjunctly or subordinately ruling few, by whose respective powers the limitations that are applied to the power of the monarch, are applied.
Under a representative democracy, the constitutional branch of law has, for its actual end, the greatest happiness of the greatest number.
Accordingly, so far as it exists in the utmost degree of perfection which the nature of the case admits of, the right of indicating, by the respective suffrages, among what individuals the supreme operative power shall be shared, is exercised by all. The concurrence of all in the effective designation of the individual, by whom the share in question in the operative power shall be possessed, not being possible, wherever the wishes of one part of those by whom the suffrages are given, point to one person, while the wishes of another part point to another, the next most desirable result, with reference to the greatest happiness of the greatest number, is, that instead of being exercised by the whole number, the power shall be exercised by the greater part of it; such being the most desirable result, such accordingly is the actual result.
In a representative democracy, the exercise of this designative power is performed by human judgment; under a monarchy, it is performed by fortune or providence;—the cause being the same, and that cause out of the reach of our knowledge, each man may, on each particular occasion, do as he is accustomed to do, employ that one of the two terms, which, on that occasion, is regarded by him as best suited to his purpose. Under the exercise made of this power by fortune, the supreme operative power finds itself, at the death of the last possessor, in the hands of the only child, or, in case of children more than one, living at that moment,—of the first born, of the children of a certain woman: the power of removal is, under the direction of fortune, providence, or (by accident,) human judgment, exercised by death.
In so far as the power of appointment is thus exercised by fortune or providence, no degree of relative inaptitude, short of universally manifest and complete insanity of mind, has the effect of preventing the operative power from finding itself lodged in the hands thus designated and appointed: no degree of inaptitude, short of that produced by insanity as above, takes the power of removal out of the hands of death.
The persons in whose hands is lodged the supreme operative power, as also those in whose hands the supreme designative power, (appointment and removal included,) is lodged, being determined, what remains for the matter of the constitutional code, is the declaring in what manner the power and functions of the persons, in whose hands the designative power is lodged, shall be exercised: as likewise the marking out into a number of distinct branches, the whole mass of subordinate power.
A constitutional code might, in a certain sense, be said to be complete, if neither any distribution of operative power among subordinate authorities, nor any mode of appointment or removal in relation to the possessors of any such subordinate power, were contained Edition: current; Page: [11] in it. For by the description given, as above, of the supreme power, and the provision made as above, for the exercise of the designative power, with relation to the possessors of that same supreme operative power, provision would be made for all such subordinate arrangements, as above, as it might be the pleasure of the possessors of those two branches of the supreme power, to concur in the making of.
Of law in general, and of this branch in particular, the principal object is to give security to rights; viz. to such as it finds in existence, and such others, as under and in virtue of such arrangements as it finds in existence, are, from time to time, successively brought into existence; to wit, either by such events as take place without the operation of human will, such as deaths and other casualties, and the produce of the elements of the three kingdoms of nature,—the mineral, the vegetable, and the animal; and such as are brought into existence by the operation of the human will, such as voluntary contracts, and ordinances of the administrative branch of government.
In comparison with the security thus afforded for rights in general, such benefits as belong to this or that one of the three remaining heads, under one or other of which, all the as-yet-unmentioned benefits, which it is in the nature of government to confirm or secure, may be classed, are but of secondary importance; to wit, subsistence, meaning incidental arrangements for securing national subsistence against incidental causes of failure; abundance, meaning continual increase to that which is a common matter of subsistence and abundance; and equality, meaning the giving to the several masses of the matter of wealth in the possession of different individuals, such approach and perpetual tendency to absolute equality, as shall not be inconsistent with the security which ought to be afforded to the rights relative to property, and the rights relative to condition in life.
Security, subsistence, abundance, and equality,—by these then will be presented to view the several subordinate or particular ends, most immediately in contact with, and branching out from, the only legitimate and universal end of government.
Neither in the import of the word subsistence, nor in the import of the word abundance, is any relation to futurity necessarily involved. In the import of the word security, that relation is constantly and necessarily involved: the present being at all times but a point, the word security can never present itself without presenting to view one point at least, which is neither the present nor the past.
First on the list of benefits which the civil branch of the law is occupied in distributing, is security.
Security may be considered with reference to the objects which are secured, and with reference to the objects against which they are secured.
Taking human beings individually considered, these are the only real entities considered as being secured. But when a particular and practical application comes to be made of the word security, certain names of fictitious entities† in common use must be employed to designate so many objects, to and for which the security is afforded. Person, reputation, property, condition in life,—by these four names of fictitious entities, all the objects to which, in the case of an individual, the security afforded by government can apply itself, may be designated.
Security has for its adversaries, against whose enterprises it is to be afforded, three classes of persons differently situated and denominated, viz. foreign adversaries considered as such, foreigners considered in so far as they are, or are liable to become, adversaries; rulers, viz. of the country in question considered in that same light; and fellow-citizens, or fellow-subjects, considered in that same light.
As to the acts against which security is to be afforded, and by which, in so far as they are performed, security is broken in upon and lessened, they are in themselves and their immediate effects, the same by which soever of the three species of adversaries they are exercised. Taken, however, in the aggregate, they are wont to be designated by a different denomination, according to the situation of the class to which the person or persons by whom they are exercised, is considered as belonging. If to that of foreign adversaries, they are denominated acts of hostility: if to that of domestic adversaries, considered in the character of rulers, acts of oppression—or, if the oppression be considered as to a certain degree flagrant, acts of tyranny; if to that of domestic adversaries, considered in the character of subjects, acts of delinquency.
The case of foreigners, and also the case of rulers, are treated of elsewhere. Remains the case in which the persons against whose enterprises security is to be afforded, are considered in the character of subjects.
In this instance, the principal and leading operation by which the security is afforded, consists in giving, to the several distinguishable Edition: current; Page: [12] acts by which the security, considered as applied to the several sorts of possessions, is considered as being broken in upon and lessened, the denomination and character of so many different offences, considered with reference to the persons engaged in the exercise of those acts.
But so nice and difficult of apprehension is, in many cases, the distinction—on the one hand, between one mode of delinquency and another—on the other hand, between the several modes of delinquency and innocence; and so inadequate to the purpose of conveying, in this case, a clear, correct, and complete conception of the object denominated, is any single word, of which a denomination can be composed,—that to each such denomination, it is altogether necessary that a definition be subjoined, or, to speak more extensively, an exposition; as also, on the occasion of each such exposition, a portion of explanatory matter applied to the several distinguishable terms of which it is composed.
Were nothing further necessary to the purpose, the list of these several definitions (considered as being so many instruments employed in the process of affording security against so many acts, by the exercise of which security is broken in upon and lessened) might, without any apparent impropriety, be allotted to the branch of law here in question. But such are the temptations by which, in the instance of each such offence, men are liable to be invited to the exercise of it, that unless, for the purpose of restraining them from the commission of those acts respectively, inducements of the nature of punishment were employed and announced, every such definition so sent abroad without support, would be a dead letter, and as such, be without effect. Penal law is, therefore, the branch of law which occupies itself in the distribution of burthens, to the intent of their having the effect of punishment.
With relation to the civil code,—taking the mass of its arrangements for an intermediate end, the matter of the penal code is but a means. By the arrangements contained in the civil code, so many directive rules are furnished; what the penal code does, is but to furnish sanctions, by which provision is made for the observance of those directive rules. In truth, it goes but part of the way towards furnishing that indispensable appendage; for, of sanctions, there are two sorts, viz. the punitive and the remunerative; and the punitive is the only one of the two, which is furnished by the penal code as such.
Hence it is that, in the field of law, command occupies a much greater extent than is occupied by invitation. Between the idea of command and the idea of eventual punishment, the connexion is inseparable. Thus it is, that the character and form of penality are given to the principal mass of those directive rules by which the distribution of benefits, as well as that of burthens, is effected. The matter of the civil code is in its form little else but a sort of exposition of the terms employed in the commands delivered by the penal code.
Thus to give effect to the distribution made of property, against the several acts by which it is invaded,—usurpation, for example, or theft, or endamagement,—the law must afford the means of knowing what is each man's property, and, for this purpose, employ some such word as titles, to denote the several efficient causes of it. But so long everywhere is the list of the different sorts of titles, and so unavoidably complicated and voluminous the descriptions of the modes in which they may be acquired and lost, that to insert all this matter of detail in the body of the penal code would give an altogether disproportionate bulk to the matter of the different sections, which necessarily belong to it; and, in particular, the several sections in and by which the several acts, which have been distinguished and crected into offences, have been described. Hence, from the several passages in which, in a penal code, any such word as title occurs, reference will be made to the division headed with some such word as titles, in the civil code. So again, of the offences enumerated and defined in the penal code, non-performance of services due by contract, or, more shortly, non-performance of contract, must necessarily be one. But as of services the variety is infinite, so of services to the rendering of which a man may seek to oblige himself by contract the variety is great: correspondently great, on the other hand, is the variety of cases in which, notwithstanding the entrance made into this or that contract, it is not fit that the sanction of the law should be employed in enforcing the performance of it.
Of the matter of the penal code, the designation made is not complete until a designation has been made of all the sorts of acts which, by it, are dealt with in the character of offences. Of the matter of the civil code, the efficiency would be throughout as nothing, were not the several acts by which the distributions made by it are violated, dealt with on the footing of offences. Yet, there is no such correspondency between the one sort of matter and the other as to render it convenient that both together should be amalgamated into one and the same code. For, though there are some offences, for the full and adequate description of which abundance of the sort of expository matter above spoken of is necessary—as, for instance, the offences by the creation and punishment of which protection is afforded to property—yet property is but one out of several endowments to which protection is afforded; and some there are, to the protection of which by appropriate arrangements of penal law, no such voluminous masses of expository matter are requisite. Every man, for example, has, on certain conditions, and in certain modes, a right to protection at the hands of law against such acts as are injurious to his person. But, for the designation of his title to his person, or of Edition: current; Page: [13] his title to such protection for it, no such details are necessary as in the case of property.
And the like may be said with regard to reputation.
Original and all-comprehensive, derivative and incidental, means of subsistence. By these words may be designated the two branches of a division which it is necessary in the first place to bring to view.
The original fund of each man's subsistence is each man's labour. The production of it is the work of nature without law, and antecedently to law. What it looks for at the hand of law is security: security against calamity, security against hostility from foreigners, from fellow-subjects, and from rulers.
Incidental and derivative means of subsistence. The need of these arises out of the deficiences that are liable to have place in the produce of each man's labour, considered as a fund for each man's subsistence.
Certain and casual. By the two distinctions thus designated may be comprehended, in the first place, all the varieties of which the cause of this deficiency are susceptible.
Certain is the nature of those produced by time of life: by the time antecedent to the capacity for labour, and by the time subsequent to it: by immaturity and by caducity.
The time of immaturity endures for years: the time of caducity may endure for years, or may terminate in the same moment in which it commenced.
Want of capacity for labour, want of employment for labour. Under one or other of these heads may be comprehended all the casual causes of deficiency in regard to subsistence.
Casual want of capacity for labour is indisposition—relative indisposition. Indisposition may be of body or of mind: the degree of indisposition in question is designated by the effect.
If against any of the causes of deficiency in regard to subsistence the government has failed to provide an efficient remedy, the consequence is death; security against calamity has so far failed to have been afforded.
But against deficiency in regard to subsistence, no remedy can ever be provided but at the expense of security for abundance. The fund of abundance is composed of the stock remaining of the produce of labour, deduction made of the several amounts, substracted by consumption, useful and useless, immediate and gradual, natural and human, in all their several shapes.
In his endeavour to provide a remedy against deficiency in regard to subsistence, the legislator finds himself all along under the pressure of this dilemma—forbear to provide supply, death ensues, and it has you for its author; provide supply, you establish a bounty upon idleness, and you thus give increase to the deficiency which it is your endeavour to exclude.
Under the pressure of this dilemma, how to act is a problem, the solution of which will, in a great degree, be dependent upon local circumstances: nor can anything like a complete solution be so much as attempted without continual reference to them. One leading observation applies to all places and all times. So long as any particle of the matter of abundance remains in any one hand, it will rest with those, to whom it appears that they are able to assign a sufficient reason, to show why the requisite supply to any deficiency in the means of subsistence should be refused.
Of the instruments of abundance, the fund is composed of the surplus of the means of subsistence, deduction made of the quantity destroyed by consumption in all its shapes.
Increase of production—decrease of consumption. Under one or other of these two heads may be comprehended all the possible causes of increase to the abundance fund.
Natural and factitious. Under one or other of these two heads may be comprehended all the possible modes of increase to production.
By natural, understand all those that have place without intervention on the part of the government in this particular view. Under this same head natural, is therefore comprehended whatsoever assistance is afforded to production, by the security afforded to produce.
By factitious modes of increase to production, understand all such as are employed by government in that special view.
Here comes in with propriety one general and all-comprehensive rule. In so far as the natural means of increase to the abundance fund suffice for the production of the effect, forbear to employ any factitious means for giving increase or acceleration to it.
Neither for this purpose nor for any other can the power of government be employed, but coercion must be applied immediately, in so far as the inducements employed are of the penal kind; unimmediately, in so far as the inducements employed are of the remunerative kind: but it is only by coercion that any means of remuneration can be collected.
In favour, and for the benefit of, A, you cannot seek to give increase to production in the hands of A, except in so far as coercion is applied either to A himself, or to B, C, and D, and so forth.
But why seek to benefit A by coercion applied to A? His regard for himself is greater than yours can be;—his knowledge of what is most beneficial to himself is greater than yours can be;—his experience of what has been most beneficial and most hurtful to himself is greater than yours can be.
Why seek to benefit A by coercion applied to B, C, and D, and so forth? Coercion is evil—positive evil—suffering: absence of increase Edition: current; Page: [14] is but negative evil. No suffering is the result of it. A is but one; B, C, D, and the rest of them are many: by the number of them all, after allowance made for the lessening of loss by the distribution of it, is the quantity of the suffering, produced by the coercion, multiplied.
Increase cannot thus be sought to be given to production otherwise than at the expense of equality; by violations made of the rules of equality, for the importance of which to the greatest happiness of the greatest number, see further on.
For security, yes, without decrease, and with increase to the greatest happiness of the greatest number, the rules of equality may be infringed: for increase to abundance, without decrease to the greatest happiness of the greatest number, they cannot be infringed.
The negative means of increase to the abundance fund is by decrease of consumption. In so far as it is by voluntary decrease of consumption that decrease is made in the amount of the abundance fund, by the respective proprietors, pleasure and security, in all their various shapes are the effects of it, and are in proportion to it. In the case of by far the greatest portion, in quantity and value, of the produce of labour, subsistence, pleasure, and security, in all their several shapes, have place only in so far as consumption has place. In each individual instance, from which of two causes, pleasure, or security, or both, are derived by him in greatest quantity, viz. from consumption or from avoidance of consumption—in a word, from preservation, is better known to the proprietor himself, than it can be to any body, and not at all known to you.
The great cause by which decrease is produced in the abundance fund, always without pleasure, and, in too great degree, without proportionable security to the possessors, is, that which consists of the draughts made upon it by government.
The abundance fund being composed of savings made out of the subsistence fund, includes in it the subsistence fund: the materials or instruments of abundance are the materials or matter of subsistence.
Diminution of consumption being one of the two means of increase to the abundance fund, hence, upon occasion, where, under the notion of providing security in all its branches for the several instruments of felicity, draughts are made by government upon the abundance fund by taxes, some indication may be afforded respecting the subjects on which, with least detriment, the taxes may be imposed.
With or without design, in so far as a tax is imposed upon any article, the consumption, the use, and thereby the production, of it, is discouraged. To that article discouragement is applied, and, at the same time, to all other articles, in so far as they are rivals to it, encouragement.
Hence, other effects laid out of the question, for increase of the abundance fund, with a view to subsistence, there is a use in imposing taxes rather on objects, to the use of which prompt consumption is necessary, than on objects, to the use of which slow and gradual consumption is sufficient: on objects applicable to the purpose of subsistence of themselves, and without exchange, rather than on objects not applicable to that purpose, otherwise than by exchange, especially if not otherwise than by exchange with foreign or distant countries.
Fourth on the list of the benefits which the civil branch of the law is occupied in distributing, is equality.
By equality is here meant, not the utmost conceivable equality, but only practicable equality. The utmost conceivable equality has place only in the field of physics; it applies only to weight, measure, time, and thence to motion.
The utmost conceivable equality, say absolute equality, admits not of degrees,—practicable equality does admit of degrees.
Equality is not itself, as security, subsistence, and abundance are, an immediate instrument of felicity. It operates only through the medium of those three, especially through abundance and security. Of all three taken together, the use, fruit, and object is felicity—the maximum of felicity; of this maximum the magnitude depends upon the degree of equality that has place in the proportions in which those three are distributed.
Apply it first to subsistence,—means or instruments of subsistence,—subsistence taken in the strict sense. There is not in this case a place for degrees in the scale of equality; for, by the supposition, no inequality has place in this case. As contradistinguished from the instruments of abundance, by the means of subsistence, is meant that least quantity of those instruments, which is such, that with any lesser quantity existence could not have place: no subsistence, no existence.
It is when applied to abundance—to the elements or instruments of abundance, that the nature, and, with the nature, the importance, of political economy is most plainly discernible.
In the aggregate of the elements of abundance is included, as above, the aggregate of the means of subsistence. If the aggregate of felicity were as the aggregate of the elements of subsistence, no addition could be made, by any degree of equality, to the aggregate of felicity. But so far is this from being the case, that it is a question scarcely susceptible of solution, whether, where the aggregate of the elements of abundance is represented by the greatest number possible, the aggregate of felicity is so great as, or greater than, two. Take, on the one hand, the day-labourer, who Edition: current; Page: [15] throughout life has had complete means of subsistence, but at no time any portion of the elements of abundance: take, on the other part, the monarch, who throughout life has had the elements of abundance, together with all the other instruments of felicity, in the greatest quantity possible. Ages equal, scarcely can any one assure himself by full persuasion, that the quantity of felicity enjoyed by the monarch has been twice the amount of that enjoyed by the labourer; for the quantity of felicity is not as the quantity of the elements of felicity simply, but as the quantity of the elements of felicity, and the capacity of containing the felicity, taken together. In a basin of water, introduce anywhere a secret waste-pipe: inject through another pipe any quantity of water how great soever, the vessel, it shall happen, will be never the fuller; for as fast as it flows in at one part, it flows out at another. Just so it is with the elements or instruments of felicity, when a stream of them, of boundless magnitude, is injected into the human breast. Of pain, in all its shapes, a monarch is no less susceptible than the labourer: and in its most common shapes the quantity of pain may be, and frequently is, so great as to outweigh the greatest quantity of pleasure in all its shapes, of which human nature is susceptible. Even suppose pain, in all its severe shapes, absent during the whole time: the quantity experienced the whole time, suppose it a minimum: this being the case in both situations, still the question will remain insoluble as before. For in both cases the quantity of felicity actually enjoyed depends on the degree of sensibility to enjoyment, in each instance: and while in the labourer the sensibility is a maximum, the degree of sensibility in the monarch may be a minimum. Even supposing this sensibility to be at the same degree, in both instances at a given time of life, it is, in the case of the monarch, exposed to a cause of diminution, which has no place in the case of the labourer; for by high dozes of the exciting matter applied to the organ, its sensibility is in a manner worn out. And in fact, number for number, the certain probative symptoms or circumstantial evidences of infelicity, as exhibited on the countenance, are at least as frequent in the case of the monarch as in the case of the labourer.
Apply the investigation to any of the situations intermediate between that of the labourer and that of the monarch, the result will be the same.
The more closely the subject is looked into, the more complete will the persuasion be.
Of the enjoyments or instruments of positive felicity, the principal and most unquestionable will be found to be, as constantly and in as high a degree, attached to the situation of the labourer, as above delineated—the labourer, to whom none of the means of subsistence have been wanting, though none of the other elements of abundance have been present—as to that of the monarch.
The principal enjoyments of which human nature is susceptible, constancy of repetition being considered as well as magnitude, are—those produced by the operations by which the individual is preserved; those produced by the operations by which the species is preserved; that cessation from labour which is termed repose; and that pleasure of sympathy which is produced by the observation of others partaking in the same enjoyments. These four, with the exception of repose, are so many positive enjoyments upon the face of them.
Cessation from labour presents, it is true, upon the face of it no more than a negative idea; but when the condition of him by whom repose after corporeal labour is experienced, is considered, the enjoyment will be seen to be a positive quantity; for, in this case, not merely a cessation from discomfort, but a pleasurable feeling of a peculiar kind, is experienced, such as, without the antecedent labour, never can be experienced. In the case of the labourer, it may indeed be said, that before the time of repose, with its enjoyment, arrives, the labour is pushed to a degree of intensity of which pain (in those degrees, at least, in which it is denoted by the word discomfort) has been produced. But the greater the degree of the pain of suffrance, the greater the degree of the pleasure of expectation—the expectation of the pleasure of repose—with which it has been accompanied. And this pleasure of expectation has had for its accompaniment, the pleasures of expectation respectively appertaining to the other pleasures of enjoyment above-mentioned; sensibility with regard to each being increased by that very labour, to the intensity of which that of the pleasure of repose is proportioned.
Pursue the investigation throughout the several other enjoyments of which human nature is susceptible, the ultimate result will not be materially different.
Except in so far as security cannot be afforded to one man but by defalcation made from the security afforded to another, where is the man to whom appropriate security ought not to be afforded for his person, for his reputation, or for his condition in life? Where is the man to whom, for any one of those three possessions, greater or better security ought to be afforded than to any other?
Remains property, as the only one of the four possessions in relation to which the application of the benefit of equality requires any considerate discrimination or reserve.
When, and in proportion as, by any cause, defalcation to any amount is made from the mass of a man's property, whether in possession or in contingency, a correspondent defalcation, there is always sufficient reason for believing, is thereby made from the sum of his happiness.Edition: current; Page: [16]
The defalcation thus made from happiness may have place without his being apprized of the defalcation made from his property.
Such is the case, for example, where a man having in his possession a mass of property, the exact amount of which is not known to him, a defalcation, not known or suspected by him, is made from it, whether by design or accident.
So again, in case of contingency, a gift or legacy being, without his knowledge, intended for him, a third person intervenes, and, without his knowledge or suspicion, prevents the intention from being executed.
In these cases, happiness is diminished, viz. by diminution of pleasure; but in these cases no positive pain is produced.
If with his knowledge, and without his free consent, a defalcation is made from the mass of his property, in this case, over and above the sort of negative defalcation made as above, defalcation of a positive aspect is made, viz. by means of, and in proportion to, a particular pain, which, in some quantity or other, he cannot fail to experience. A pain of privation, or a pain of loss, are the names by which this species of pain has been distinguished.
If from the operation of a cause, the same with, or similar to, that one from the operation of which a loss, as above, has been sustained by a man, he is made to entertain the apprehension of ulterior loss, produced by ulterior operations of the same cause, another pain of a different description takes place, in addition to the above. This pain has been denominated a pain of apprehension, grounded on loss.
If but for the loss thus incurred, the man would have continued or engaged in some profit-seeking and profitable course of labour; or if he is, by the apprehension of the like eventual loss, prevented from continuing or engaging in such course,—a loss to a further amount is thus produced, and by means of it, it will generally happen, an additional and correspondent pain. The loss has been denominated loss by depression of industry; the pain, pain from repression of industry.
Of these four modes of defalcation from happiness by defalcation from property, the two first-mentioned apply exclusively to the individual thus damnified, and the circle of his connexions in the way of interest and sympathy. From the two last, by the observation of his suffering, may be propagated, as it were, by contagion, a cluster of similar evils in the breasts of other persons, the number of whom will be determined by the number of those by whom intimation having been received of his loss, apprehension comes to be entertained of loss to themselves, or their connexions, from the operation of the same cause, or similar ones.
This pain, to the extent of which, that is to say to the number of persons participating in it, no exact limits can be assigned, has been denominated the pain of insecurity by contagion.
When a mass of property, not as yet in the man's possession, having been an object of expectation to him, fails at the expected time to come into his possession, disappointment on his part takes place,—a correspondent pain is experienced by him, a pain of disappointment.
Correspondent to the pain of privation in case of defalcation, is the pain of disappointment in case of expectancy.
In the case of the first of these evils, if by the same cause by which it has been produced to one party, good to an amount not inferior, has been produced to another party, no sufficient reason will have place for abstaining from the production of it.
Where no expectation has had place, no disappointment can have place. In the exclusion of the above evils may be seen the only reasons why, for property in any shape, against the acts of persons of any description, security should, in any shape, in any place, at any time, be afforded; why, for theft in any case, for fraudulent attainment by any means, for robbery, for extortion, for peculation, in a word, for depredation in any shape, punishment should be appointed.
In the instance of each individual, a particular point of time there is at which, without defalcation made from security in his instance, or in the instance of any other individual, his property may be subjected to a distribution or other disposition, whereby, according to the amount of it, advance towards absolute equality may be made.
This time, is the time of a man's death. In his instance no such evil is produced, for he is no more. In the instance of no other individual, if sufficient and effective care has been taken to exclude expectation, will evil be produced; for the only evil incident to the case is disappointment, and, by the exclusion of expectation, disappointment has been excluded.
Whatsoever be the amount of a man's property, if, within a certain distance from him in the line of natural relationship, relations of his, knowing themselves to be such, and known by him to be such, are in existence, an expectation of possessing, at the time of his death, the whole, or a portion more or less considerable, of that property, (with the expectation of such part, if any, as it is known will terminate at his death,) will, in proportion to their several degrees of propinquity, and correspondent amity, be entertained,—that is, in the instance of such of them as, in respect of age and other circumstances, are capable of entertaining expectations of this nature.
In the instance of some of these persons, this habit of expectation has had, for its cause and support, a correspondent habit of co-enjoyment.
In this case are constantly a man's wife and children; a woman's husband and children; incidentally any other such near relations, especially blood-relations, whose circumstances, in conjunction with his own, have happened to Edition: current; Page: [17] produce, on their part, such habit of co-enjoyment.
On this occasion by the distribution which, according to the natural course of things takes place (abstraction made of arrangements established by positive law, for the express purpose of controlling it) equality, and that without defalcation from security, is promoted.
So various are the circumstances in which, on the occasion of any such decease, a family is capable of being left, that, in the way of detail, it is impossible to pronounce, by any general rule, what course or plan of distribution is most natural: what course or plan is, in the highest degree, conducive to the greatest happiness of the greatest number.
In general terms, thus much however may be said, that among those by which equal regard is paid to the habit of co-enjoyment, other grounds of expectation and demand, being on the same footing, that course will be most beneficial which, in its nature, and in the conception entertained of it, and the description given of it, is the most simple.
Say, for example, children or no children, on the death of the husband, the whole of his property to the widow: on the death of the wife, the whole of her property to the widower.
On the children, the state of dependence in which they are thus left, imposes no new hardship: this dependence is but a continuation of existing dependence.
As between child and child, on the decease of the widower or the widow, equality; this, for a general rule is the most obvious, and has the advantage of simplicity.
Abstraction made, of any difference of demand that may be regarded as produced by sex—in favour of an elder child, in support of a claim on his part to a more than equal share, may be adduced the longer continuance of his habit of co-enjoyment.
But, in favour of the younger, in support of a claim on his part to a more than equal share, may be adduced the more urgent need resulting from, and proportioned to, the deficiency in his capacity of providing the means of subsistence from his own labour, in comparison with a brother or sister of maturer age. Of this latter reason the force presents itself as being superior to that of the former.
For the solution of these, and a host of other difficulties, altogether incapable of being aptly provided for, by general rules, provision may be made, and very generally is made, by a power of disposition given to the parents or one of them: natural affection, guided by ordinary prudence, being in this case trusted to, for the accomplishment of the universal object—the greatest happiness of the greatest number interested.
But neither are natural affection nor prudence, in this case, in every instance, what it were to be wished they were. This considered, a course that may naturally enough present itself to the legislator is, to divide the thus vacated mass of property into two parts: one, the division of which shall be determined by the single consideration of equality; the other, in relation to which the case of providing for the differences liable to be made in the proper quantum of allowance, by the difference that may have place in respect of the quantity needed, and the correspondent urgency of the demand, is left to be provided for by natural affection, guided by ordinary prudence, as above.
In modern Europe, by the operation of causes produced by a state of society such as has no longer any place anywhere, an arrangement, altogether different from the above, and as adverse as possible to equality of distribution, and the beneficial effects depending on it, has, to a vast extent, for many ages had place, and continues to have place: to females nothing: to males, if but one, the whole: if more than one, to the eldest the whole: to the other or others, in whatever number, nothing. For this arrangement, in times of high antiquity, there existed a cause which was not wholly destitute of reason. From external adversaries, or from this or that portion of its own members, and in particular from the great majority of them, placed in relation to the ruling few, in the condition of slaves, the state of the whole community was a state of continual, all-pervading, and imminent danger. The mode of armament was at the same time, compared with the immature state of the arts on the operations of which it depended, a highly expensive one. For defence, in addition to the ordinary habiliments, were others composed of iron: for offence, lances, spears, or bows and arrows. Lances were in an eminent degree, exposed to fracture: by a spear no chance of producing effect could be afforded, but by its being parted with, and conveyed to the adversary: and so in the case of the arrow. To these, as well for offence as defence, was added a horse: nor for the defence of the horse, was a sort of appropriate armour always refused; bridles and saddles for him, were at any rate necessary: and, employed or not employed, food for him, with a certain degree of attendance, was at all times necessary. To destruction or cessation, the services of the animal were exposed at all times: a succession was therefore necessary to be kept up.
By the conjunct operation of all these causes taken together, to the maintenance of each individual, whose powers were thus applicable to the defence of the community, a mass of property, continually kept on foot, was indispensably necessary. In the possession of any such individual, suppose a mass of property sufficient, but not more than sufficient, for this purpose; if, upon his decease, this mass of property were to be subjected to division, the national force would thus be bereft of one of its constituent parts: and, in a state of society Edition: current; Page: [18] in which the cultivation of the means of subsistence had made so small a progress, so small was the number of the individuals thus equipped, that no individual could be subtracted from the number without sensible diminution of national security.
From all labour employed in the production of the means of subsistence, and the matter of abundance, all persons thus engaged in the defence of the community, stood exempted; partly by necessity, in respect of the need of the application of it to their military function, partly by the power they had of exacting from others, labour for those and other purposes, for their own use.
In regard to exposure to the necessity of labour, from this state of things has been produced, in the minds of a certain portion of the community, a division of the members of that same community into two classes: one composed of those in whose instance the need of employing labour in the acquisition of subsistence and abundance, is no hardship: another composed of those in whose instance the need is a hardship.
The exigencies and habits of acting, produced by this state of things, have long been at an end everywhere; but habits of thinking, produced by it, are scarcely at an end anywhere.
To descend from a higher to a lower place in the scale of opulence, is a change which can neither be endured nor apprehended without uneasiness. On the decease of any possessor of property living without labour, laying out of consideration the widow or the widower, no division can have place among the children, but that, at any rate, (if it be an equal one,) this inconvenience must be experienced—experienced by all of them, in a degree proportioned to their number,—if, by the late proprietor, a house of a certain extent and appearance, with servants in a certain number, and a table furnished at a certain expense, were kept up, in the comforts of all which, during the life of the father, the children had, all of them, in a greater or less degree, and naturally in an equal degree, participated,—after the decease of the parent, no such equal enjoyment (except on condition of a degree of harmony not to be expected from equals so situated, and not under the control of any superior, nor in that case without universal renunciation of the comforts of matrimony) could be maintained.
But, in a situation of this sort, such is the course taken by self-regard, looking forward to the time in which, in his own person, he will have ceased to exist, imagination presents to a man, as a sort of substitute to his own person, that of another, who, in nature, denomination, and in amount of property, shall come as near to himself as one person can come to another. A person whose body once formed a part of his own, and in the rendering of whose mind a continuation of his own, as much care and labour has been employed as it was agreeable to him to employ.
The usefulness of the benefit of equality stands, then, upon these positions:—
1. The quantity of happiness possessed by a man, is not as the quantity of property possessed by the same man.
2. The greater the quantity of the matter of property a man is already in possession of, the less is the quantity of happiness he receives by the addition of another quantity of the matter of property, to a given amount.
3. The addition made by property to happiness goes on increasing in such a ratio, that, in the case of two individuals—he who has least, having, at all times, a quantity of the matter of property sufficient for a subsistence, while he who has most, possesses it in a quantity as great as any individual ever had, or ever can have; it is a question scarce capable of solution, whether the one who has the greatest quantity of the matter of property, has twice the quantity of happiness which he has whose quantity of the means of happiness, in that shape, is the least.
If this ratio, of two to one, be regarded as too small a ratio, substitute to it the ratio of 3 to 1, the ratio of 4 to 1, and so on, till you are satisfied you have fixed upon the proper ratio: still, the truth of the practical conclusion will not be affected.
This conclusion is, that, so far as is consistent with security, the nearer to equality the distribution is, which the law makes of the matter of property among the members of the community, the greater is the happiness of the greatest number: and, accordingly, this is the proposition which, so far as can be done without preponderant prejudice to security, ought, at all times, and in all places, to be established and maintained.
As to absolute equality, in relation to property, such equality is neither possible nor desirable.
It is not possible, because, supposing it to have place at the commencement of any one day, the operations of that one day will have sufficed to have destroyed it before the commencement of the next.
It is not desirable, because never having had existence in any country, at any time, it could not have place in any country in future, without having been endeavoured to be established in that same country: in which case, not only the endeavour, but the very design alone, accompanied with any assurance of its being about to be followed by the correspondent endeavour, perseveringly exercised, would suffice to destroy the whole of the value, and the greatest part of the substance, of the matter thus undertaken to be divided.
Correspondent to rights, are obligations. Edition: current; Page: [19] Without the idea expressed by the word obligation, no clear or correct idea can be annexed to the word right.
Rights are either simple or complex: simple rights, are the elements out of which complex rights are composed. Those which first come to be considered, are simple rights.
An original or primary right, is that which is constituted by the absence of the correspondent obligation. This is the sort of right which has place antecedently to the formation of government. It belongs equally to every agent, and has place with relation to every subject. No man, as yet, being under any obligation to abstain from making any use of anything; every man has, as yet, a right to make every use of everything.
Next come those rights, the existence of which is constituted by the existence of correspondent obligations.
First comes that right which is constituted by an obligation imposed upon other men, inhibiting them from exercising, with relation to the subject in question, the sort of right above designated by the appellation of an original or primary right. Call this a right by obligation, to wit, restrictive obligation,—imposed by the addition of this secondary right, the primary right acquires the character and name of an exclusive right.
If the birth of the exclusive right awaits a manifestation of the will of the person in whose favour it is created, it receives the appellation of a right of excluding, or say of exclusion.
In this case, the word power, is in use to be employed: and we say, accordingly, right of exclusion, or power of exclusion.
In the case of the right by exclusion, or the right of excluding, the subject to which the right and the exclusion apply, may be an individual or a species: an individual, for instance, the paper, and the collection of marks called letters which have been superinduced upon it: a species, for instance, any paper of the texture or appearance of this individual paper, or any marks presenting to view in the same order the same words, i. e. words of the same import as those which upon this paper are superinduced.
Of this species of exclusive right, to wit, the exclusive right which applies to sorts of subjects, the origin is of a date long posterior to that of the right which applies to individuals. When, as in the case of copyright, the duration proper to be given to it came in question, its nature and the mode of its formation were so imperfectly understood,—so far from being clear and correct, were the ideas suggested by the words employed in giving expression to it, that the mass of argument produced by the contest, exhibits a web of confusion no where unravelled. Of the original sort of right, it was said that it presented something tangible: of the more recently created sort of right, it was said that it presented nothing tangible: and in this supposed absence of tangible matter was found a sufficient reason for disallowing the right. But it has just been seen, that whereas in the case of the original right, the quantity of tangible matter belonging to the case is but individual, and therefore, finite; in the case of the more recently created right, that quantity is a species and therefore infinite.
On the occasion of these rights, will come to be considered the subjects to which they are applicable, and also their efficient causes: to wit, the several states of things or occurrences by which they are wont to be respectively brought into existence.
Of the distribution made of benefits, the proper object is, that the sum of them be as great as possible.
The distribution made of benefits, has two classes of effects: the first belong to the sensitive faculties only: the other, through the sensitive to the active.
Those which belong to the sensitive faculties only, are the effects universally produced throughout the whole of the field to which this branch of law applies itself: those which operate on the active faculties, are incidental only: they consist of those produced by the subject matter of the distribution, operating in the character of the matter of reward.
In the way of reward, a benefit thus distributed, is capable of being made productive of mischievous effects of two different descriptions, according to the two modes of existence, of which, in respect of duration, it is susceptible: viz. transitory and permanent: the degree of permanency being, in some cases in its nature, not incapable of extending to perpetuity.
In the case where the benefit thus made to operate, is of a transitory nature; in so far as application is made of it to the production of mischievous effects, it may be termed the matter of subornation.
Instances are, insurances against misfortune in every shape: against sufferance by fire, water, ordinary mortality.
The law of succession has this mischievous tendency: how effectually, soever, the tendency is, in general, counteracted and nullified, by natural sympathy, by the tutelary force of public opinion.
Wagering is capable of receiving a subornative tendency: when it does so, it operates in that way by a double force: by the force of punishment added to that of reward.
Where the shape in which the benefit exists, is the eventually perpetual shape, and the operation of it extends itself to the active faculty, the act by which it is established, is what is styled foundation: and in conformity to a grammatical ambiguity so extensively Edition: current; Page: [20] prevalent, the permanent result of that same transitory act is styled a foundation.
Out of this law, supported by no other than a remuneratory sanction thus limited, may be, and is made to grow in each instance, an indefinitely extensive mass of law, having, for its support, with or without remuneratory, a penal or punitory sanction.
An example is seen in all foundations having the advancement of art and science in adults or non-adults for their object or pretence. Take, for example, a college in an English university. Out of a mass of income produced by an estate in land, or an annuity payable by government, certain annuities for life or years are distributed among certain of the members, by the name of fellows and scholars: the greater masses of the annuity being styled fellowships, the lesser, scholarships. It is only on certain conditions that the possession of those several annuities can be made to commence or to continue. To give, to such or such an act or mode of conduct, the effect of terminating the continuance of the annuity, is to prohibit such act by a penal law, having, for its support, the punishment consisting in the forfeiture of the fellowship or scholarship, as the case may be. In the value of the benefit thus denominated, may be seen the limit on the side of increase of the mass of punishment which the laws of this foundation have for their support: and by the force of this punishment, punishment to any inferior amount may, in this case, be substituted.
According to certain opinions of the whole number of the individuals, past, present, and to come, belonging to the human species, a majority, or some other very large proportion, are, on the termination of the present life, consigned to a state of torment, exceeding in an infinite ratio, as well in intensity as in duration, the most afflictive that, in this life, has ever been experienced, or can be conceived. According to these same opinions, there exists a certain class of persons so gifted, that, by certain acts performable by any one of them, in favour of any individual chosen by him for that purpose, diminution may be effected either to the probability of his being subjected to such torment, or, at any rate, to the duration of it. Let an exemption to this effect be supposed obtainable, the greatest mass of the matter of wealth that ever was possessed, or ever could be possessed, by any man, would, in the character of a reward for the service by which this exemption, or rather, this chance of exemption, was afforded, be as far from being equal in value to the service thus obtained, as the value of the smallest denomination of coin would be, to the value of the richest treasure ever accumulated within the compass of one and the same receptacle.
Let these opinions, be the political community in question what it may—let a set of opinions of this nature be universally, nay, let them be but generally prevalent, it is evident that, sooner or later, human nature being constituted as it is, amongst the effects of them would be, the lodging in the hands of the persons thus gifted, as large a portion of the good things of this world—of those benefits which it is in the nature of distributive law, or of constitutional law to confer, as it is in the nature of things, that such hands should, in the whole assemblage of them, be capable of containing.
According to the nature of the event which is the subject of it, lay a wager, you may unite in that one arrangement the power of punishment and the power of reward.
Lay a wager of £1000, that a certain individual outlives a certain day, you offer to the person with whom you lay the wager, a reward of £1000 for putting him to death on or before that day: you subject him at the same time to a penalty of £1000, in case of his not putting the man to death on or before that day.
Thus it is, that as it were, in the three different languages—in the languages of these three different branches of law, one and the same arrangement may stand expressed: being expressed in the first instance, in any one of these three languages, it may be translated into one or both of the two others.
Of the effect of any arrangement, in the first instance, as belonging to this or that one of these three branches, would you have a clear, correct, and complete view? Grudge not the trouble of this legislator's exercise.
Render the cessation of a permanent reward eventual, in the event of the performance of this or that act, by the individual rewarded, you graft on the reward a punishment. Render the cessation of a permanent punishment eventual, in the event of the performance of this or that act by the individual punished, you graft on the punishment a reward.
By donation or bequest, give a man a hundred pounds a-year for his life, remainder to his son for his life, you offer to the son a reward of a hundred a-year life rent, in the event of his putting to death his father.
To a certain extent, in the instance of the law of most countries, counter causes, natural or factitious, or both, have sufficed, for the most part, to divest these distributive arrangements of their deleterious quality: in the case of the wager, the penal law against murder: in the case of the donation or bequest, the same penal law preceded and strengthened by natural affection and the habits that ground it.
Thus, on taking, on the one hand, a view of the deleterious influence of the temptation presented by arrangements which, in the first instance, may have presented themselves in no other character than that of arrangements of civil or distributive law, operating on no other than the passive faculty, care should be taken, on the other hand, not to suffer to pass unheeded, the moral forces by which, in the Edition: current; Page: [21] character of tutelary sanctions, the force of the temptation may be, and, in the ordinary state of things, is, effectually resisted.
Unfortunately for mankind, those salutary restraints which, in ordinary cases, operate with sufficient effect on a small scale, operate with no effect at all, or at the best with comparatively very small effect, on a large scale: acting with effect in the prevention of suffering producible to a small amount, by men in the situation of individuals, they act with little or no effect in the prevention of suffering producible by men in the situation of rulers.
In the course of some reign, which it would not be material or perhaps altogether easy to particularize, the law servants of an English king fabricated an imaginary law, producing, by the help of their power, the effect of a real one, giving to their master—not forgetting themselves—the proceeds of all such vessels as should be, or rather, as had been captured, from the subjects of any foreign state antecedently to any declaration of war by him against such foreign state. Of this ex post facto law, what was the effect? Offering to him a reward, payable in the event of his giving in this way commencement to a war, necessary or unnecessary, justifiable or not justifiable: if not necessary not justifiable—and if not justifiable, giving commencement to a course of murder exceeding, in mischief and in guilt, any act punished by the hand of the ordinary judge in the instance of a private offender, under the name of murder, by the same amount by which the number of lives destroyed in the course, and by means, of the war, exceeds number one. Supposing the war so commenced, not until at the end of a competent time after such declaration of war, would the profits of these murders, in certain fixed proportions, have been divisible among such of the persons as were employed in the capture of the respective vessels. In this particular case, in which, at the time of the commencement of the plunderage, no declaration of war has been made, this part of the profits of it was, by the above-mentioned spurious substitute to an ex post facto law, given to the most gracious and religious king, whose instruments the fabricators of it were. Of a declaration of war, the purpose intended or professed is, by warning of sufficient length, to enable persons who, on the faith of a state of peace, have trusted themselves or their goods, within the reach of the state thus constituting itself in a state of war, to remove themselves in time for escape. By forbearing to issue this warning, all such persons as, if it had been given, would have escaped the calamity, are comprehended in it.
By subjects not commissioned for that purpose by their sovereign, capture thus made, would have given to the act by which it was made, the denomination of an act of piracy, and the agents, the name of pirates.
Of the distribution made of burthens, the proper object is that the sum of them be as small as possible.
Inseparable and separable.—On this occasion this is the first distinction that requires to be made with regard to burthens.
By inseparable, understand that class of burthens, the imposition of which, is in the instance of each individual benefit, inseparable from the creation and collation of that same benefit, with reference to the same individual possessor.
Thus, the exclusive possession of any subject-matter of property cannot be conferred on any one man, except in so far as all others are debarred from intermeddling with it: but, as in the case of any object of general desire, the being allowed to make use of it, is a benefit, so the being debarred from making use of it, is a burthen.
By separable burthens, understand those which, in their nature, are not incapable of being imposed respectively upon any individual, without the conferring of any correspondent and inseparably connected benefit on any determinate individual, or set of individuals, or the whole community taken in the aggregate.
In the case of this class of burthens comes, in the first place, the following rule:—no burthen without a correspondent and preponderating benefit.
In so far as this rule is observed, no burthen can, in any case, be imposed, but that there are at least two parties whose interests are affected by it: the party favoured and the party burthened. To the party favoured the first place is here given: for, by this arrangement, two mementos are given. One is, not to impose a burthen in any instance until some determinate party, on whom a correspondent favour will be conferred by the imposition of it, has been found.
The other memento is to consider and ascertain, who or what, is or are, the parties on each side: whether, for example, it is for the benefit of the many that the burthen is imposed upon the many, upon the few, or upon the one; or, for the benefit of the one, or of the few, that the burthen is imposed on the many.
But, on every occasion, without detriment to the greatest happiness of the greatest number, a burthen may, in any shape, be imposed upon any individual or individuals in any number, for the benefit of an individual or individuals in any number, so that this condition be fulfilled: viz. that the sum of the benefits conferred be greater in value than the sum of the burthens imposed. On this occasion, when, for the sake of a benefit intended to be conferred on one party, a burthen is imposed on another party, the burthen is apt to be either altogether overlooked or set down at a value less than its real one: for the benefit being, by the supposition, the object that first presented itself to the mind, and by its nature the more agreeable object, such is the natural consequence.Edition: current; Page: [22]
Thus much as to the party in favour of whom the burthen is in contemplation to be imposed.
Next comes the consideration of the serviceable object, by the creation and collation of which the benefit is conferred.
In so far as, for the purpose of conferring a benefit on one party, a burthen is imposed on another, an obligation and a right are, by the same operation, created, having for their common subject-matter a service: to the one party a right to receive the service—to the other the obligation of rendering it.
Services by which the possession of money is conferred, and services at large,—such is the division which, how disproportionate soever the terms of it may appear, requires to be made.
Instead of services by which the possession of money is conferred, money (precision being sacrificed to brevity) is a term which, on this occasion, must henceforward be employed.
To money, in preference to services at large, is the first place, on this occasion, assigned: of money, the equivalent of almost all those other services, the comparative importance being so great, and, at the same time, the conception at the utmost point of simplicity: while, of the objects thus contrasted with it, the diversity is without end.
Of the mass of burthens imposed by the exaction of money, the first in extent and importance, is that, the imposition of which has for its object the provision made for the exigencies of the whole community taken together as such, i. e. for the rendering of such services of which the whole community, taken together, stands in need. This branch will be subject to a division, which has its source in the nature of the different branches of the public service.
To the same head belongs the consideration of such monies as may be required for the service of the several portions of territory into which the whole of the territory belonging to the whole of the community stands divided: for example—for roads, rivers, and all other communications by land or water; provisions for security against calamity; provisions for security against hostility on the part of internal adversaries, by arrangements of a preventive nature; and also, such monies, the employment of which has for its object, the giving positive increase to the sum of felicity: for example, the establishment of public schools.
In regard to services, by the exaction of which burthens are imposed on individuals for the benefit of individuals, the first division that requires to be made is, that between such services as require to be exacted in virtue and in pursuance of contract, and such services as may require to be exacted without contract.
In the case of a contract, a burthen is imposed on each side: but, on each side, error and unforeseen evil consequences excepted, a benefit, more than equivalent to the burthen, is received.
To enter into the details necessary to the laying down of the rules, indicated by the regard due to the greatest happiness of the greatest number, on the subjects of contracts,—though the rules were no others than such as have application to all contracts without distinction,—would require more room than could be allotted to such a subject, consistently with the nature and limits of the present design. The like applies to the case of such services as require to be exacted of individuals for the benefit of individuals without contract.
Of these services, the most extensive and most important class is of a negative description. It is rendered by abstinence from all acts by which injury in any shape would be done to assignable individuals.
It is by the exaction of these services that security is afforded to individuals.
The art of government has therefore been the art of extracting from the persons over whom the powers of government are exercised, service in all shapes in which it is regarded as contributing to the happiness of those same rulers.
Services are extracted by fear, through the medium of penal laws: by hope, through the medium of patronage: by delusion, through the medium of factitious dignity. By penal laws, it is only in this or that particular shape, on this or that particular occasion, that service can be extracted: by patronage and factitious dignity, it is extracted in all imaginable shapes, and on all occasions.
The accession made to the stock of happiness by everything that is actually done by the power of the law, is extremely small, in comparison with that which is made by the expectation of what it eventually will do: what it does by affording compensation, in comparison with what it is expected eventually to do, in the way of punishment.
In the way of compensation, it makes not any positive addition to the stock of happiness: all it does is, to reduce a defalcation that has been made from the stock of happiness. It creates not any instrument of felicity—towards augmentation, or rather lessening the diminution in, the stock of felicity; all that it can do is, by transferring a portion of the stock of these instruments from hands in which it would have produced less, into hands in which it will produce more, felicity. This is the utmost which it does in the most favourable case. The most favourable case is where, at the charge of an indigent man, injury having been sustained at the hands of a rich Edition: current; Page: [23] man, it affords him compensation at the charge of the rich man. Suppose, that taking advantage of the injury, to promote equality without detriment to security, it renders the condition of the indigent man, at the expense of the rich man, better than it was before the injury, still, along with the good thus done, factitious evil created by the law is mixed.
On the other hand, whatsoever of good is produced by expectation of what the law will eventually do—all this good is pure.
The penal branch of law has for its object and occupation, the giving execution and effect to the civil or distributive branch; as also a portion of the constitutional branch: such is the benefit conferred, or sought to be conferred by it. But no benefit, as we have seen, can have existence, but with, and by means of, a correspondent burthen. No profit without loss: without expenditure and expense, which is voluntary loss. What remains is, that in quantity and value, the benefit—the profit—be as great, the burthen—the loss—as small as possible.
For rendering it such, keep in mind this radical allusion. The community is the body politic. Misdeeds are its disorders. Occupied on the penal branch of law, the legislator is its medical practitioner—its surgeon. In a surgical operation the cure is the benefit: the pain of the patient the burthen. The operations of the surgeon have for their object, the rendering the cure as prompt and as complete as possible, at the expense of as little pain as possible.
The surgeon, when he cuts into the bladder of the patient for the extraction of a stone—does he say, the patient deserves to be so cut? Not he indeed: by no surgeon was any such absurdity ever uttered.
The possessor of political power—the magistrate—the legislator—has, at all times, in all places, uttered it without a blush. Why? Because, at all times, in all places, till yesterday, and in the new world, the magistrate—the legislator—such is man's nature—have been tyrants: tyrants having each of them, for the object of his acts as such—not the greatest happiness of the greatest number, but his own single greatest happiness.
In the origin from which he deduced the word, indicative of the demand for, or propriety of, the punishment, he was occupied in the application of,—he found a pretence for tyranny: for tyranny exercising itself in the taking of vengeance. The term desert, (which is not applicable without hazarding the production of useless punishment to an indefinite extent,) is, and ever was, in use to be employed (without hazard of any such evil,) where, on the occasion of a contract for service between individual and individual, good, in the shape of reward, was to be applied: on the one part, the work contracted for, has been done—the service has been performed: at the hands, and at the expense of, the other, title has been made, to the correspondent service: the pay—the reward—has been deserved.
Hence arise two radical positions:—
1. Objects which punishment ought never to propose to itself are, vengeance, establishment of imaginary congruity and equality between transgression and punishment.
2. Objects which punishment ought ever to propose to itself are, Compensation, in so far as the nature of the case admits of the application of it, for the evil produced by the misdeed: prevention of the commission of similar misdeeds in future, as well by the misdoer himself as by all other individuals taken at large.
Exacted at the expense of the evil doer, compensation necessitates suffering: exacted in consideration of, and in proportion to, the evil done by him, that suffering, by the whole amount of it, operates as punishment.
In the first place, compensation for the party injured: in the next place, over and above compensation, punishment for the benefit of the public, and punishment for appeasement of the wrath of the offended and wrathful monarch—such is the arithmetic of tyranny. Punishment, including to the profit of the monarch, the exaction of the whole of that matter by which compensation to the individual injured, might have been afforded; after that, compensation or no compensation to the individual injured—such is the order, the method of tyranny. Compensation by one course of procedure: punishment by another, and a different course of procedure; reformation, by health given to the soul, by a third and different course of procedure: such is the arithmetic of lawyer-craft—confederate partner and instrument of tyranny; of lawyer-craft in its most rapacious character, and elaborate garb—the character and garb of the English lawyer.
Compensation and satisfaction are synonymous. Of the word compensation, the psychological import has its root in the physical idea of weight: compensation is weight for weight: satisfaction is giving enough for what has been suffered, in such sort that the weight of the good in the scale of enjoyment, shall be equal to the weight of the evil in the scale of suffering.
Satisfaction has been distinguished into lucrative and vindictive. Lucrative is satisfaction in any shape, considered otherwise than with a view to vengeance. Vindictive satisfaction, is satisfaction in any shape, considered with a view to vengeance.
In no shape or quantity should suffering be created, for the single purpose of affording satisfaction of the vindictive kind.
Only when, for the sake of the community at large, punishment is inflicted, if there be any shape by which (without increase of suffering to the wrong-doer) satisfaction to the individual wronged, may be administered, that shape may be employed.Edition: current; Page: [24]
By that shape, the apprehension of the eventual punishment may, moreover, be rendered the more impressive upon the mind of him, on whom the temptation to do the wrong is operating.
To the word punishment, lawyercraft, in confederacy with religious fraud and hypocrisy—and in subserviency to monarchical tyranny, has, of late years, furnished a synonym—viz. visitation—penal visitation.
In the language of the English translation of the Bible, visitation is employed as synonymous to punishment, Synonymous? But in what case?—where the misdoer being a man, the ruler is the invisible Almighty. Considered in this point of view, sin is the name employed for the designation of the misdeed.
Of the Almighty invisible, whose throne is in heaven, the monarch is the visible representative here on earth: the representative, according to the certificate given to him by Blackstone: invested with no small part—with as large a part as is necessary for the accomplishment of the indisputable object of his government—the greatest happiness of him in comparison of whom all others are but as creatures to their Creator,—invested, in a word, with a completely sufficient part of his divine constituent attributes. By the alleged offender, a misdeed has been committed. By this misdeed, the monarch has been offended. The monarch, being god upon earth, the offence is a sin. Sins deserve to be visited. For this his sin, this sinner deserves to be visited. At the charge of him by whom sin has been committed, punishment is due. Proportioned to the dignity of the offended ruler, should be the magnitude of the punishment. Where the offended ruler is that God which is in heaven, dignity being infinite, that punishment ought to be, and is, in each instance, infinite. Where the offended ruler is that god which is on earth, the punishment ought not to be infinite, it ought only to be next to infinite. Were justice alone consulted, such, accordingly, would be the punishment of this sinner. But in the heart of that god which is upon earth, and with us, justice has, for her never-failing companion and appeaser, mercy. Mercy has for her function the rendering of no effect to an amount more or less considerable, the decrees of justice. In this, as in all other cases, mercy has interposed, and,—after deducting from what has been ordained by justice, what has been substracted from it by mercy,—the balance forms that punishment which the sentence is about to declare.
In relation to punishment, considered as so much evil, employed as a means for excluding,—as far as possible, without greater evil, evil considered as producible by misdeeds, thus converted into offences, three main questions on every occasion present themselves.
In what cases shall punishment be applied?
In what proportion?
In what shape?
In what cases shall it be applied? To a question of the opposite aspect,—the question, in what cases shall it not be applied?—a more commodious, howsoever indirect, answer, may be given.
Where it would be groundless.
Where it would be needless.
Where it would be inefficacious.
Where it would be unprofitable.
In each one of these cases, supposing them realized, punishment, it is evidently manifest, would be unapt: of all these cases, it may be said, they are unmeet for punishment.
Case the first.—Where punishment would be groundless: where the application of punishment would be unapt. Necessarily included in the notion of punishment is the notion of misdeed done, of offence given. Of the sort of operation by which, for the exclusion of greater evil, evil is purposely produced, the operation called punition, or more commonly punishment, is but one mode. For, taken by itself, government is in itself one vast evil: only except, in so far as evil, already produced by it, is done away or lessened, can any exercise of government be performed—can the power of government be in any way exercised, but evil is produced by it. But wherever, by evil thus produced, greater evil is excluded, the balance takes the nature, shape, and name of good; and government is justified in the production of it. In this case in the account of good and evil, the evil produced and applied in the shape of punishment would, unless it excluded some greater evil, or produced some preponderant good, be all loss.
Thus it is, that where evil applied as punishment would be groundless, what will often happen, is—that evil produced, though designedly, is not causeless—is not unjustifiable.
Where it would be needless. Here the circumstance from which the evil receives the denomination of punishment, viz. misdoing, offence has place: as such, evil is among the consequences of it. But, by the operation of some other cause, all the relative good that could be done by the evil of punishment, is done without it. In this case, therefore, whatsoever portion of punishment were applied, would be all loss.
Where it would be inefficacious. In this case, too, be the evil of the offence ever so great, the evil of punishment, though it could not be said to be needless, would, however, be all loss; to the undiminished evil of the offence, would be added the evil of the punishment.
Where the punishment would be unprofitable. Of the evil which, in its totality, would otherwise be produced by the offence, a portion, more or less considerable, would be excluded by the punishment; but the evil thus introduced is greater than the evil excluded by it.
In the three former cases, the evil of the Edition: current; Page: [25] punishment is all loss: in this last case, the evil produced is not all loss, but, after deducting, from the sum of what is produced by it the sum of what is excluded by it, there still remains on the balance a net remainder, or difference, which is so much loss.
Comprehensive, and on that account, theoretical as the description of these cases may appear, there is not one of them that has not, to a vast and deplorable extent, had its exemplification in practice. To afford an indication of every one of them, would be to give an all-comprehensive picture of whatever has been hitherto done on the field of penal law.
Rules tending to augmentation of punishment:—
In no case leave to the evil-doer any net profit from his evil-doing.
In adjusting the quantum, have regard to all the several articles in the list of aggravating circumstances: circumstances aggravating either the evil of the offence, or on any other score, the demand for punishment. See whether any have had place in the case in question.
In no case suffer anti-conscientious pursuit, or practice, to go unpunished: whether principal or incidental: whether at the commencement the party were in the wrong or in the right: for, by a man whose demand is just, anti-conscientiousness may have been manifested by the practice employed in the pursuit of it.
In particular, if the anti-conscientiousness be accompanied with mendacity.
Rules tending to diminution:—
To the account of punishment, place every pecuniary loss, or other hardship, produced on the part of the injurer, by compensation afforded at his expense, to the injuree.
So, every suffering produced on his part, by means of the pursuit, whether by pecuniary expense, by loss of time, or by vexation in any other determinate shape.*
The penal branch of law, as already observed, has for its object and occupation the giving execution and effect to the civil or distributive branch, as also a portion of the constitutional branch. Both together, compose the substantive branch of law. The law of judicial procedure constitutes the adjective branch of law. This adjective branch has, for its object and occupation, the giving execution and effect to the aforesaid substantive branch.
For the production of this effect, the requisite means are right decision and conformable execution.
To the positive expression right decision, substitute an expression with a negative aspect, it will stand thus:—avoidance of misdecision.
In so far as the law is of a beneficial nature, giving execution and effect to it, will, bating accidental preponderant evil, be in a like manner a benefit. But as above, in the field of law no benefit can have place, without its attendant burthen.
The burthens inseparably attendant on judicial procedure stand comprised, the whole assemblage of them, within the import of three words—vexation, delay, and expense.
To give to the benefit, the utmost practicable extent, to confine the burthen within the narrowest practicable limits—to these two perfectly distinct, but intimately connected, modes of promoting the greatest happiness of the greatest number, the one positive the other negative, it belongs to the legislator to direct his operations.
Here, then, we have two conjunct ends of judicial procedure: main or direct end; right decision, or say, avoidance of misdecision; collateral end, avoidance of vexation, expense and delay.
Decision is right, in so far as, by giving execution and effect to it, the will expressed by the law is conformed to—the eventual predictions delivered by the law, carried into effect. Here, then, on every occasion, is a standard composed of a certain portion of a certain text of the law, to which, to give warrant to his claim, by him by whom a call is made for execution and effect to be given to the law, reference, direct or implied, must be made.
But to constitute any such claim, the existence of some individual matter of fact or state of things, must be asserted: and in consideration of the existence of this matter of fact, a demand must be made that execution and effect may be given to that same corresponding portion of the body of the law.
Misdecision is liable to be produced—either by the non-existence of any portion of law applicable to the case, or by the misinterpretation of this or that portion of law, applicable to the case.
In the former of these cases, if any decision at all—if any decision to any other effect than that of the rejection of the claim be pronounced by the judge, misdecision is an appellation which, with unquestionable propriety, may be applied to it. For, in this case, by the supposition, there is no ground for it. In this case, are all decisions whatsoever, in so far as they have for their pretended ground, the sort of non-entity called common or unwritten law: a spurious ground which, by the supposition, is not the work of the legislator—is not the work of any person having authority to make law, or so much as claiming authority to make law.Edition: current; Page: [26]
In the supposition of misdecision from misinterpretation, the supposition of the existence of a portion of real law, applicable to the case, is involved: where there is nothing to interpret, no such thing as misinterpretation can have place.
In the first case, the evil has, for its manifest cause, negligence on the part of the legislator.
This negligence has not at present either justification, or any the least shadow of excuse.
In the early stages of society, the evil was not the result of negligence: the nature of things rendered it an unavoidable one: particular cases presenting a demand for legislation had not, as yet, presented themselves in any quantity or variety, capable of affording any adequate idea of any extensive, much less of any all-comprehensive, body of law.
All this time, as often as compensation or satisfaction for evil suffered at the hand of another was claimed, the judge, if he did any thing, did as he would have done, if a law had been already made, containing the description of a genus or species of case, in which the individual case before him was comprehended.
In the case of every decision thus pronounced, the very sort of evil had place which, in the present state of things, is produced by what is called an ex post facto law: on the part of the defendant, no expectation of finding any such burthen imposed upon him, previously entertained: no cause for abstaining from the act, on the ground of which the burthen was imposed, present to his mind: consequence on his part, sufferance from a burthen which, had a law to the effect in question been already in existence, and sufficiently known to him, might not have had place.
What in this case is neither impossible, nor out of the ordinary course of things, is—that, by some general conception of the several sorts of acts by which the greatest happiness of the greatest number is liable to be impaired, he may have been led to the conception that the act for which the burthen has been imposed upon him, is in its nature of that number, and on that score might come to be taken by a judge, as a sufficient cause for dealing with him, as in effect he has been dealt with. But in comparison with a state of society which furnishes a real law actually applying to the case, how wretched that state of society cannot but be, in which the rule of action is left in an ever floating state, must be sufficiently obvious.
On any part of the field of human action, a body of law, conceived in general terms, cannot have been framed on adequate grounds, except in so far as a certain stock of individual cases spread over that same ground, and constituting a demand for legislation,—have rendered themselves present to the mind of the legislator. The greater the length of time during which the government in question has continued in existence, the greater the extent of the country and of the population subject to it; the greater will have been the number of those individual cases, that will have presented themselves to the cognizance of the judge. But, let the stock of those cases thus presented have been ever so numerous, only in proportion as some unperishable memorial has been made of them, can they have had the effect of contributing to furnish the legislator with this necessary ground. Memorials affording indication, more or less particular, of individual cases of this sort, as having, on such or such grounds, called for decision at the hands of the judge, and on such and such grounds, received decision accordingly, are, in the language of English jurisprudence, called by the common appellation of Reports.
In no other country upon earth, have these indispensable grounds for apt legislation presented themselves, invested with permanence by the press, in any variety or extent, comparable to that which stands exemplified in English jurisprudence.
Thus it is, that, from a combination of causes for which no room can be found here, no country upon earth affords so rich and apposite a stock of materials and grounds for legislation; while, on the other hand, by an unhappy fatality, no civilized country on earth can be assigned which is so likely to be the last in which the appropriate use of those riches will have been made.
On the occasion of each individual course of judicial procedure, there are two necessarily distinguishable questions,—the question of law, and the question of fact: whether the state of the law is as alleged, and whether the state of facts is as alleged.
If so it be that the state of the law is really as alleged, the bringing to the view of the judge that part of the law on which the claimant grounds his claim cannot be attended with much difficulty.
Not so the bringing to view the state of facts.
The means or instruments by which a state of facts is thus brought to view, and the persuasion of its existence endeavoured to be established, in the minds of those to whom it appertains to form a decision in relation to it, are called the evidences, or, by one collective appellation, the evidence.
Under one or other of two denominations,—things and persons,—every imaginable source of evidence will be found comprisable.
It is not to any comparatively great extent that, for a purpose such as this, things themselves—material bodies—can, without the intervention of persons, be brought within the view of the judge. In the most common case, it is only by the account given of it—by the report made of it—by the discourse held, or the deportment exhibited, in relation to it, by some person or persons denominated on this occasion witnesses, that the state of things in question, real or alleged, is brought to the view of the judge.Edition: current; Page: [27]
So far as depends upon the single exertions of the claimant himself in the bringing to view, on each occasion, the mass of evidence thus described, there will not, in general, be much difficulty.
But, most commonly for the production of the necessary mass of evidence, in addition to, or instead of, all operations performable by the claimant himself, appropriate operations, performed by other persons, (neither to the number of whom, nor to the distance of whose residence from the seat of judicature, can any determinate limits be assigned,) may be necessary: and, in the instance of each such person, either willingness or reluctance may, to any degree, have place.
Here, then, for one main purpose, viz. the yielding evidence, there will, on each occasion, be a need, that either things, or persons, or both, should be forthcoming at the seat of judicature. Here, accordingly, one main problem presents itself for solution at the hands of the legislator—how to secure forthcomingness on the part of persons and things for the purpose of evidence.
Saving the accidental case of a mutually voluntary application of the possessors of two conflicting interests, for a decision at the hands of the judge,—a claim of this sort cannot be preferred without experiencing, at the hands of some other person or persons, more or less reluctance. If not in reality, at any rate in belief, the object of the claim will always be some benefit. But no benefit, as before mentioned, can exist without a correspondent burthen. The benefit required at the hands of the judge by the claimant, cannot be granted but in so far as, upon some other person or persons, a correspondent burthen is imposed.
For the attainment of this benefit, to cause this burthen to be imposed, will throughout be the object and continual endeavour of the one party: to avoid the imposition of it, that of the other party, who will act on the occasion the part of a defendant.
Where punishment is out of the question, at the commencement of any course of judicial procedure, the natural state of things is, in the first place, on the part of the claimant, voluntary appearance at the seat of judicature for the purpose of preferring his demand: thereupon, from the judge, if upon hearing the claim, a sufficient ground has been made for subjecting the other party to the vexation inseparable from defence, summons to that party either to do that which the claim requires him to do, or to appear at a certain day and hour at that same seat of judicature, to defend himself against it.
This is the most obvious, and, upon the face of it, the least vexatious mode of giving commencement to a suit. But there are various circumstances by which a departure from it, in some way or other, may be rendered matter of convenience, or even of necessity, as where, by a party on the defendant's side, he knowing himself to be in the wrong, his person, or any property of his, would be to be disposed of in any manner burthensome to him by the decision of the judge, voluntary appearance on his part, cannot reasonably be to be depended upon. By bare notice to him of that which is in contemplation to be done, the possibility of its being done, may be done away.
When the suit has commenced, let evidence be received from any and every source—exclude none. For, if any evidence is excluded, there will be danger of misdecision.*
As a security against improper conduct on the part of the judges and all other functionaries, the utmost publicity must be given to all judicial proceedings.
The financial department, is that by which is performed the extraction, custody, and expenditure of such money and money's worth, as is employed, or professed to be employed, in the public service: viz. in this and the several other branches of the public service.
Whatsoever be the public function, by the exercise of which service is rendered, or pretended to be rendered to the public, or to any part of it; money, or money's worth, or both, are, in a quantity more or less considerable, necessary to be employed and disbursed on the occasion of its being rendered: the financial branch is thus a branch which intertwines itself, and runs through the several other branches of the public service.
This branch of government has for its proper end, that branch of good economy which consists of appropriate frugality.
Of economy there are two branches: the one positive, or say, distributive; the other negative, or say, restrictive.
The distributive branch has for its object, the due appropriation of the aggregate of the sums levied, to the several services for which they are levied.
The restrictive branch has for its object, avoidance of all exaction, the burthensomeness of which is not outweighed by the usefulness of the application made of it.
For judging of the consistency of any mass of expenditure with the proper ends of economy, take for a test this directive rule: with the alleged benefit, alleged to be expected from the expenditure, compare the unquestionable burthen produced by a tax to the same amount: forego the benefit, the burthen is excluded.
Taken in its narrowest and most ordinary sense, economy in a state, has for its subject-matter money and money's worth; taken in Edition: current; Page: [28] its most extensive sense, it comprehends the matter of reward, in those additional shapes in which it is to government that it is indebted for its existence,—viz. power and factitious honour.
In what way may the principle of minimization, and other safeguards, be applied with the greatest advantage to the case of money?
By observation of the following rules, viz.:—
Except as excepted, suffer no man to make for himself profit, in any shape, from public money deposited in his hands, or at his disposal.
In the instance of each functionary, having in charge any of the public money, minimize the quantity of it.
Not suffering to be lodged in the hands of any money-keeping functionary, money in any quantity, exceeding the sum in relation to which he has obtained fide-jussors, bound by agreement, on their part, to the eventual payment thereof into the hands of some government functionary, in the event of his failing to pay it when called upon in due course.
If there be, or can be brought into existence, any banking-company of sufficient pecuniary trustworthiness, who are willing to receive public money upon the ordinary terms,—keep as much as may be in their hands, ordering matters, at the same time, by law, in such sort, that in case of failure, the public shall have the preference as against all private creditors.
By this means, instead of paying functionaries of its own, for the keeping of the public money in their charge, the government may so order matters, as to receive a compensation for money so deposited by it.
The keeping of money by the government of a country, in treasuries of its own, is but a makeshift employed by necessity, where no sufficiently trustworthy banking-company for the keeping of it can be found.
By some governments, the concurrence of functionaries more than one has been rendered necessary to the issue of each sum from a public treasury; and to render this concurrence necessary, physical means have been employed: such as the rendering the opening of locks more than one, necessary to the extraction of it: locks, to the opening of which, so many keys of different forms are necessary, and allotting to that same number of persons the custody of the keys. In Russia, such has accordingly been the practice, as appears by an ordinance of the Empress Catherine, creative of an official establishment for the several provinces of the empire. The inconvenience here is, that there must be a number of functionaries unremittingly occupied, and, on account of the constancy of their attendance, and the magnitude of the trust, highly paid.
In every department of the public service, good managment has two perfectly distinguishable branches: the first peculiar to itself, being correspondent to the particular nature of the service: the other common to it, with all the others,—this universally applying branch of good management is frugality.
Considered in another point of view, the peculiar and characteristic branch here spoken of may be styled the positive branch: this, which is common to all, the negative branch. The dictates of frugality are conformed to in so far as, without preponderant prejudice to good management in other respects, money and money's worth, is avoided to be disbursed or consumed.
In a representative democracy, all the several departments having for their actual end good management as applied to each, the financial department has for its actual end frugality, as above defined.
In a pure monarchy, when that expenditure which is employed in giving supply to that waste, by which gratification is afforded, or endeavoured to be afforded, to the appetites of the monarch, his favourites, and instruments,—of which the expense of the war department constitutes always the most expensive article, this branch has for its actual end the same as that which in a representative democracy it has: viz. frugality: the same, with whatsoever inferiority in respect of uniformity, steadiness, and success pursued. Even in the war department, frugality is, in all the details, an object actually pursued: of the dictates of frugality, the only one purposely violated is that, by the observance of which, by far the greatest part of the whole expense of this department would be struck off: viz. that part which has for its object, the carrying on a perpetual offensive war against the subject many, instead of keeping their physical force, without expense, in a state of constant preparation for defensive war against foreign nations.
In a limited monarchy, the financial department has for its actual end, the opposite of frugality, waste—the maximum of waste.
Under this form of government, this waste has three objects:—
Personal gratification to the several appetites of the ruling one, and the sub-ruling influential and opulent few. This object, in so far as regards the appetites of the ruling one, it has in common with absolute monarchy.
Corruption: exercise of corruptive influence for the purpose of securing corrupt obsequiousness, on the part of those, whose declared duty, and professed endeavour it is, to keep applied to the respective powers of the monarch, and the sub-ruling portion of the aristocracy, those limitations which they respectively acknowledge: corrupt obsequiousness, to the effect of causing them to forbear from keeping actually applied, those several limitations: thus rendering the government, in form and pretence, limited: in effect, to the benefit of the ruling one, and the sub-ruling influential and opulent few, to the sacrifice of the greatest happiness of the greatest number.Edition: current; Page: [29]
Delusion.—In so far as the waste applies itself, by means of corruptive influence, to the production of corrupt obsequiousness, on the part of those self-acknowledged and self-professed trustees for the whole community, it employs itself in rendering them, and, in so far as it produces its intended effect, it actually does render them, by so much inferior, in respect of public virtue and good behaviour—in respect of benevolence, and that beneficence which is the fruit of benevolence upon the largest scale;—inferior to the rest of the community taken at large, inferior to the subject many, inferior to the vast majority of the whole population of the country. In the same proportion as those, on whose part corrupt obsequiousness is produced, are rendered inferior in these respects, are those rendered, by whose corruptive influence this corrupt obsequiousness is produced, or at least, in an equal degree, inferior.
In so far as with reference to that better, and happily larger, portion of the whole community, they are regarded as being, in the scale of public virtue and good behaviour, superior or equal, delusion has place. Raising up to its maximum, the degree and effect of this delusion, is a third purpose in which, under this form of government, public waste employs itself.
In proportion to the quantity in which the waste employs itself in the affording of gratification to the appetites of the individuals in question, and by the whole of that quantity, the purpose of delusion is completely accomplished, and the purpose of corruption in a principal degree. To screw up the effect of corruptive influence to its maximum, may probably require endeavours, to an amount more or less considerable, specially directed to that purpose: such endeavours being accordingly nowhere, and never wanting,—means are wanting for pronouncing, by any sufficiently grounded judgment, whether, without such endeavours, the mere possession of that same or any other quantity of the subject matter of waste, operating of itself, in the character of matter of corruptive influence, would, in the hands in question, be adequate to the production of the actual effect. Be this as it may, it will be, if it is not already sufficiently manifest, that, by the same quantity of the matter of wealth thus expended in waste, by the hands in question, in addition to the gratification of the several appetites, those two other purposes, corruption and delusion—all three, (though so inseparably connected, so perfectly distinguishable from each other,) are produced.
Look, for example, to the situation of the monarch. In the procuring to him, for example, that sort of gratification which is afforded by quick motion, together with prompt conveyance at all times, to the several different places at which a promise is afforded of successive gratification to his several other appetites,—horses, in vast multitudes, each, in respect of its capacity of affording gratification to those by whom it is used and abused, brought, by a long and expensive course of training, to the most exquisite degree of perfection possible,—the labour of men, in correspondent multitudes, having been exclusively consecrated to this one purpose, a proportionable quantity of money has necessarily been employed. But, for an establishment of this kind, good management, so far as regards aptitude for the service, is really desired. In the hands of an individual, and not in those of a board, is this branch of the public service accordingly lodged. For were it in the hands of a board, each member in reality, as well as in name and pretence, bearing a part in the business, what is sufficiently understood is—that there never would be a horse fit for service: each member would appoint to the management of one of the sacred horses, some dependant of his, who had never had anything to do with horses. Constituting a necessary exception to the general rule, this branch of the public service will therefore, of necessity, have found itself in individual hands.
For performing, in the best possible manner, this important service, were this the whole of the service thought fit to be required at the hands of the individual, an extremely moderate annual salary, not more than ten or twenty times the expenditure of an individual whose severe and bodily labour is employed in the production of the money for the purchase and maintenance of these four-footed, and pre-eminently favoured subjects of a monarchy, would be sufficient. But, in this instance, good economy, in an additional shape, is found practicable and profitable. Instead of no more than ten or twenty times the salary necessary for the maintenance of an individual of the productively labouring class, let two hundred, or though it were but one hundred, times that amount, be allotted, individuals might in the very highest rank, next to that of the royal family, be found—individuals in multitudes, who, being in a state of constant appetency for such a place, and thence in a state of constant competition with each other, will thereby be placed in a state of equally constant and proportionably abject and corrupt obsequiousness. With relation to the corruptive influence, exercised with or without his caring or thinking anything about the matter, by the royal proprietor of these consecrated quadrupeds, so many as there are of these competitors, so many men are there whose votes, and in so far as they have the faculty of speech, their speeches, are in readiness to contribute to the fulfilment of the will, and the gratification of the correspondent appetite, of him, whom it is their ambition to be entitled to designate by the appellation of their royal master.
Thus much as to the effect in that house which is styled right honourable; but in some, if not all these instances, what will have place Edition: current; Page: [30] moreover is that, to these several superlatively, although it be but positively, noble persons, may appertain, through the medium of this or that borough, or of this or that county, a seat or seats, to the number of from two to ten, in that other House, so inferior in dignity, so superior in power, which in style and title, is no more than simply honourable. Of the appetites to which, in the case of the monarch, gratification is sought to be afforded, one, nor that the least voracious, is—that appetite or desire of esteem, respect, love, or at least the exterior evidences of them, true or false—that desire which, notwithstanding the complicatedness of its object, is in one word commonly designated by the appellation of pride. Proportioned to the depth to which the humiliation of the individual at whose expense this gratification is afforded descends, is the intensity of the gratification. But, proportioned to the antecedent elevation of this individual in the scale of dignity, natural or factitious, or both together, is the relative depth of the humiliation to which, on any given occasion, for any particular purpose, he is capable of lowering himself. By the holding of the bridle of a favourite horse, while the royal master is in the act of mounting—by this or any other act performed in the execution of his office, the utmost length of the descent, capable of being made by the man, the magnitude of whose salary was determined by no higher mark of value, than that which corresponded to the skill possessed and exercised by him, in the field of this particular office and profession, could not at the utmost, be any greater than that which corresponds to the difference between the pay of this official functionary, and the pay of an ordinary groom. But the amount of the pay which, in consideration of the exalted station occupied by the titled and most noble, though unskilled attendant upon horses, is ten times the amount of the pay which it would be convenient and advisable to give to the untitled but well-skilled functionary, and thereby a hundred times the amount of that which good economy would require to be given to the untitled and unskilled attendant.
The consequence is, that if as between the inward sensation and the external cause—between the quantity of actual gratification, and the quantity of the instrument of gratification—the proportion were correspondent, and kept pace,—the intensity of the gratification afforded to the royal rider, by the view of the humiliation submitted to by the most noble holder of the horse, would be ten times the amount of the gratification afforded to a most excellent king, by the view of the humiliation, if any, submitted to, by the untitled but well-skilled holder.
Thus it is that one and the same quantity of the matter of wealth, employed in waste—wasted in the vain endeavour to inject an additional quantity of happiness into a receptacle over and over again disabled from the capacity of receiving any more—this same quantity of wealth is employed to the three purposes at once, viz. gratification of the royal appetites, securing of corrupt obsequiousness, and the production of delusion.
In the case where production of corrupt obsequiousness was the object, the persons on whom the operation was performed were the subruling, influential, and opulent few, with no other addition than that of that comparatively small portion of the subject many, to whom the corruptive influence of these their superiors could be applied, for the purpose of producing correspondent corrupt obsequiousness. In the case of delusion, the persons on whom the effect is endeavoured to be produced, are, in addition to the subruling, the influential and the opulent few,—(for these are not less exposed to, nor less susceptible of, the delusion than the many)—the subject many, likewise,—in a word, the whole of the community without exception—the royal chief himself, by whom the benefit of the delusion was reaped in the greatest abundance, not excepted.
The opinion endeavoured to be inculcated in the case in question, is that the quantity of the matter of wealth so employed and produced, if not employed in the making a clear addition to the happiness of the greatest number, is employed at any rate to some other equally or superiorly proper purpose. Whatsoever be the quality or other thing designated by the word excellency, such is the excellence that belongs to them, (whether it be exaltation in the scale of virtue, public or private, or both; or exaltation in any other scale of still superior dignity—say, for example, piety,) that, whatsoever quantity of the matter of wealth, instead of being left in each instance at the disposal of those by whose labour and capital it has been produced,—is employed in the endeavour to afford additional gratification to the appetites of these same exalted persons, is employed in a manner more useful, more dignified, or on some other account, more laudable, than it would have been had it been left to pursue its original destination as above.
In regard to usefulness, (if so plain and vulgar an effect and quality were regarded as worth attending to,) it would lie on those by whom, on this ground, this diverting of the matter in question from its originally intended destination to this new one, were justified to prove it: but in regard to this quality, the existence of it, being altogether incapable of being proved, is of necessity and with the utmost composure assumed.
If ever the existence of it should be endeavoured to be proved, it would of necessity be in some such shape as this: the quantity of obsequiousness necessary to the production of good government, and thence, (if so pedantic, uncourtly, democratical, jacobinical, anarchical, and impious, a phrase be insisted upon,) Edition: current; Page: [31] the greatest happiness of the greatest number, is by means of the application thus made of the quantity in question of the matter of wealth, actually promoted: but as, if of that quantity of wealth no part at all were thus employed, civil society would not, to any effect, have existence, so by any and every defalcation made from the quantity of that precious matter thus applied, a proportionable defalcation from the quantity of happiness enjoyed by the greatest number, would be made.
To this latter assertion there are two answers.
One is—that it is a mere assertion altogether destitute of any ground, that ever has been attempted to be made, or, in the nature of the case is capable of being made good.
The other is—that such experience, as the nature of the case has been capable of furnishing, operates the whole of it, in contradiction to this same assertion. The political states by which this body of experience has been furnished, are the confederated body of the Anglo-American States: original number of them, at the time of their declaration of independence, thirteen: that number, by successive accessions, augmented to its present number, twenty-two or twenty-three. In no one of these has the matter of wealth, in any quantity whatsoever, been applied to the gratification of personal appetite in any shape; either to the person of the chief, or any other functionary; or to the purpose of producing by means of corruptive influence, corrupt obsequiousness; or to any purpose to which the appellation of delusion can with any propriety be applied. If in the situation of the chief functionary of the whole confederacy, the matter of wealth has in any quantity, been applied to any one of these purposes, so small is the utmost quantity that can be suspected of being so applied, that it can scarcely, with reference to any such subject as that in question, be spoken of, as worth notice.
The sources or modes, actual and customary, of wasteful expenditure, may be distinguished into two classes, having quantity for their mark of distinction,—viz. wholesale and retail. The wholesale may again be distinguished into those which are essential to the form of government and those which, howsoever congenial, are incidental to it.
The matter of wasteful expenditure, essential to the form of government is in the case of an absolute monarchy, the difference between the pay of the monarch and the least pay sufficient for the president of a representative democracy.
In the case of a limited monarchy, it is that same quantity with the addition of the quantity employed in the works of corruption and delusion, as already seen: corruption, applied more immediately to the representative of the people: delusion, applied more efficiently and needfully to the people themselves.
Pensions of retreat may be stated as being altogether needless: and to say that which is thus disposed of is given needlessly is to say that it is given in waste.
Allowances thus made may either be made with certainty, in virtue of general rules applied to all individual cases; or incidentally, for special cause assigned, in each individual case. To the first case, preferably at least, if not exclusively, apply the observations following.
Labour applied directly to a man's own use, or indirectly in exchange for an equivalent given by an individual in return for it, is one source of subsistence: labour employed for an equivalent in the service of government, that is, of the public at large, is another source. In the first case, generally speaking, no such allowance of reward, after service has ceased, has place. In the case of him whose subsistence is derived from dealings with the public at large, as in the case of a wholesale or retail trader, a master-manufacturer, an artisan, or a manufacturer, it is impossible. In the case of habitual service, rendered by contract to an individual, there is no custom for it. The case of incapacity produced by age or disease, is a case equally open to expectancy in both instances. From the time of his embarking in his profit-seeking occupation, a man makes for all such contingencies such provision as his means enable him to make, and his prudence disposes him to make. For the securing to individuals any such extraordinary supply at the expense of the public, there is, if there be any difference, less demand in the case of an occupation pursued by the rendering of service to the public for hire, than in the case of him whose subsistence, as above, is derived from commercial dealings with individuals.
In the case of a public functionary, a man's income is completely certain,—certain as to its existence, certain as to its quantity: in the other case, it is altogether uncertain in both respects.
Among profit-seeking occupations at large, there are those, to a great extent, in the whole, in which, by the nature of the occupation, men are exposed to the danger of ceasing to derive subsistence from that or any other source. With the single exception of military service by land or water, no such exposure has place in the case of public functionaries.*Edition: current; Page: [32]
First among the useless places, in addition to that of the monarch himself, is the whole of the establishment kept up for the service of the person of the chief functionary in a monarchy: kept up, as the phrase is, for the support of his dignity, the maintenance of the lustre of his crown, and the splendour of his throne.
The proof of the uselessness of this office may be seen, as already observed, in the peaceful and flourishing condition of the Anglo-American United States, in which, in the federal state, the pay of the chief functionary is no more than £6000 a-year: and it is rather by imitation and prepossession, it should seem, than by any clear proof or view of a real and adequate demand to that amount, that, in that instance, the allowance of so large a sum was determined.
Secondly, in every country in which the great body of the people profess to believe in the religion of Jesus, in any shape, the whole of the pay allotted at the expense of the subject-many, under the notion of pay for teaching it, and performing the ceremonies that have been attached to it. And note, that pay, produced by the occupation or rent of property in an immoveable shape, is so much extracted at the expense of the subject-many: for by applying that same money to the provision made for real exigencies—money to that same amount, and the suffering produced by the exaction of it might be spared.
Proof of the needlessness of such forced exactions, is the non-existence of any such system for the support of the catholic members of the ecclesiastical establishment in Ireland.
Proof that no such exactions are ordained by, or conformable to, the religion of Jesus—is, that no text in the New Testament is there to be found, speaking of him, as ordaining any such exaction: while various texts ordaining perfect equality, among all the professors of his religion, are to be found.
Pay of useless offices, pay of needless, overpay of useful offices, pay of sinecures, i. e. of places to which no duty is attached—these are the shapes in which, at the expense of the greatest happiness of the greatest number, money in excess is extracted from the people, for the benefit of public functionaries.
Remains, that source or mode of wasteful expenditure in the wholesale way which, howsoever congenial, is not essential to the form of government. These are—unnecessary wars, and distant, and thence preponderately expensive, dependencies.
In a representative democracy, unnecessary wars against foreign adversaries can scarcely have existence. For the sake of profit to the supremely ruling body, the people,—in whom is the power of appointment and removal with relation to the operatively ruling body, their representatives,—it is not possible, but what none of them can avoid seeing, is, that, with reference to the utmost possible profit capable of being reaped at the expense of the people of any other state, the expenditure that must be made is not only immediate and certain, but antecedent: as well as, in the ultimate result, greater. Upon their representatives, it is indeed that, in an immediate way, the engaging or not engaging in any such war, would depend. But that which, as above, would be manifest to the least reflecting of the two portions of the community—viz. constituents—would be still more manifest to the most reflecting of those same two bodies, their representatives: in their eyes, accordingly, of the engaging in any such unnecessary war, non-re-election,—that is removal, and with disgrace, would be the certain consequence.
Another conceivable cause of unnecessary war against foreign adversaries, is irritation. But, if not for the commencement, for the continuance, of a war considered as being thus produced, what is necessary, is—that, in the breasts of the majority of the people, hatred of others should be more strong and efficient than love of self. For a small portion of time, and on the part of a small proportion of the people, such predominance is at any rate conceivable. But, for any considerable portion of time, on the part of the majority of such a people, the nature of man considered, it does not seem possible.
In an absolute monarchy, the exemplification of this mode of wasteful expenditure will, of course, be frequent: frequent in proportion to the power the monarch possesses, or regards himself as possessing, with relation to the inhabitants of such states as are within his reach.
In the case of a limited monarchy, the practice will be still more frequent, the propensity still more incessant, and much more intense. For, in this case, whatsoever addition is made to the waste, is so much made to the instrument, the existence and use of which is necessary to this species of monarchy, viz. the corruption fund.
As to distant dependencies, comes to be considered the whole expense of the official establishment, and the aggregate of the stock or materiel employed in the maintenance of the power exercised over the inhabitants of territories so circumstanced.
When the expense of the military force by land and sea together, kept up for the defence of the distant dependency in question, is taken into account, it may be questioned whether, in the instance of any nation sending out a colony, the money extracted from it, and employed in lieu of so much money that would otherwise have been extracted by taxes from the inhabitants of the ruling country, has, in any instance, been so great as the expense. In general, the loss on this account has been prodigious.
Suppose, for example, that hitherto, in this or that instance, a colony has been a source of net profit to the ruling country. Still, it is not in the nature of the case that it should Edition: current; Page: [33] long continue so to be. Over the inhabitants of the dependency in question, power cannot be exercised,—from them such profit cannot be extracted, without manifest injury done to them, without manifest oppression exercised upon them. No sooner do they view the case in its true light, than they will resist the injury, and form a determination, and use endeavours to disburthen themselves of it. If, after this, the maintenance of the power of the ruling people, or rather of the rulers of the ruling people, is persevered in, here then is war, civil war: a war, the expense of which, increases with the distance between the country subject to the dominion, and the country which is the seat of it,—to say nothing of the misery caused by such a war.
Loans to foreign powers are another source of wasteful expenditure.
To go no farther back than the revolutionary war, all money thus obtained and disposed of may, with the most perfect truth, though obtained by extortion, be stated as obtained on false pretences—on pretences known by the obtainers to be false.
In fact, of the money thus lent, not a particle has ever been received back. It was not in the nature of the case that, in the minds of those by whom it was obtained, and thus disposed of, any expectation should have been entertained of receiving back any part of it. At the time when, under the name of a loan obtained by the foreign government from this government, the very cause and reason of its being so obtained was,—that from no resources of its own, from no subjects of its own, was it in the power of that foreign government to obtain it. By no degree of success, of which there could have been any tolerably well-grounded prospect, could the power of the foreign government to repay that money, have been increased. On the contrary, after any ordinary degree of success, that power could not but for a long time, have been diminished.
As to security, under the name of security, nothing having the effect of security was given, or could, by the foreign power in question, have been given. Of no portion of territory to serve as a security, was possession given to this government. Of no such portion of territory could any possession have been taken, accompanied with any possibility of raising money out of it, either in the shape of principal, or in the shape of interest, by contributions levied upon the inhabitants. If any such additional contributions could have been levied upon the inhabitants, they would have been levied with abundantly more facility, and abundantly less expense, by their own government than by this government. No such possession could have been kept by this government without a proportionable military force, paid by itself. Instead of reimbursement, the cost of keeping such possession would have been so much addition to the loss.
If, instead of what it was not, or intended to be, a loan, it had been named according to what it was, a subsidy, it would have been productive of two unpleasant effects: of an effect unpleasant to each of the two high contracting parties. To the Emperor of Austria it would have been humiliation: placing him, with no other difference than that occasioned by the difference in the state of society at the two periods, in the situation in which his ancestor, Maximilian, placed himself with relation to our Henry the Eighth. To the subject many in England, it would have displayed the true nature of the transaction, the very object which, for fear of that discontent which would have been so just, was, by this deceit, but too effectually concealed.
That there had not, on either part, been any such intention as, on both parts, was professed, was afterwards more fully confirmed and manifested by an eventual state of things which could not originally have been, on any rational grounds, anticipated. Upon the destruction of all power of resistance on the part of France, she being treated on the footing of a conquered country, was laid under contribution for the joint benefit of all parties to the conquest: garrisons paid by her being kept for a number of years in the country to secure the levying of it. By contributions levied in the manner of taxes, neither the whole of the money, nor any considerable part of it, could even thus, and upon a conquered enemy's country, be levied. At length, however, in the way of loan, capital being received by the conquered government from its own subjects, on government annuities, payable out of additional taxes to be imposed, a part of the money originally stipulated was provided and distributed among the conquering governments. Here, then, was an occasion on which, had there been any intention of repayment, that intention might, could, and would, have been fulfilled. Instead of being sent to Vienna, the whole of the Austrian's share might have been sent to London, or otherwise disposed of to the account of England. Was the whole or any part of it thus disposed of? Not a sixpence.
Hand in hand with waste, is to be found taxation.
Considerable must have been the difference between the quantities of evil produced by the different sorts of taxes resorted to, and the different degrees of mischievousness of those several taxes, even in the best governed state: still more in every other state, in proportion as it is ill governed. Of this inferiority in the scale of aptitude as applied to a tax, the cause may be seen partly in a deficiency in the article of appropriate intellectual aptitude, partly in a deficiency in the article of appropriate moral aptitude, on the part of the authors of the tax: in other words, in a want of wisdom and in a want of feeling: in the one case, if he produces so much needless suffering it is for want of knowing how to find another sort of tax that shall not produce so Edition: current; Page: [34] much of that undesirable result: in the other case, it is because so as the money is but produced to the treasury, he cares not how much suffering is produced elsewhere by it.
The general and utter absence of all real sensibility ought to be considered as a state of mind inseparable from the situation in question. If the financier professes to be in any degree afflicted by the sufferings of the people, in the character of taxable subjects—the fee-fed judge, by their sufferings in the character of suitors—the fee-fed advocate, by their sufferings in the character of clients, or the great military commander, by their sufferings in the character of soldiers or inhabitants of the theatre of war—the truth of such a profession is possibly not altogether without example; but the examples, if any, are so rare and so inconsistent with the ordinary constitution of human nature, that on the occasion of any such professions, no man can produce any just claim to general credence.
That which, in the situation in question, any man may, with reason, be considered as more or less sensible to—is any inconvenience to himself that may happen to present itself to him, as likely to be among the effects of the tax: the inconvenience, for example, producible by any opposition that may seem likely to be made, by any persons who consider themselves as likely to be in any way sufferers by it: to which, of course, will be to be added, if it be not implied, the inconvenience liable to be produced without doors, as well as within doors, by all parties out of place.
This is the evil by which the impression, if any, made on the mind of the financier, will, in reality, be produced: the evil, to the contemplation of which that impression will, of course, be ascribed by him, is the evil seen, or apprehended to be produced in the breasts of the contributors and other sufferers.
Be this as it may, what in every state ought to be expected, is, in the first place, that among the existing sorts of taxes there should be different degrees of mischievousness: in the next place, that the degrees of mischievousness should not exactly follow the chronological order of the taxes. To the perfection of appropriate intellectual aptitude on the part of the financier, suppose the perfection of appropriate probity added,—the degree of mischievousness will, on this supposition be in the inverse ratio of the chronological order of the different sorts of taxes, as first in time, will come the least mischievous,—last in time, the most mischievous.
Compare now the mischief of the waste with the mischief of the tax.
To obtain an adequate conception of the quantity of evil produced by a quantity of waste to a given amount, find and compare with it, the quantity of evil produced by the levying of a correspondent and equal portion of the most mischievous of all the existing taxes. For, on condition of abstaining from the commission of the waste, you may relieve the people from the burthen of that portion of the produce of the tax—you may abolish so much of the tax.
Note that, to render this rule strictly conformable to the truth, the quantity of waste abstained from, must be equal to the whole amount of the tax; for, in the case of a tax, there will always be a portion of evil, the quantity of which, will be the same, be the produce ever so great or ever so small. For example, a certain portion of the expense attached to the official establishment employed in the collection of it.
By the above general observations, the reader will now have been in some sort prepared for the forming a just estimate of the evil produced in the shape of waste, by various branches of customary expenditure, hitherto very commonly regarded as justifiable, either on the ground of absolute necessity, or, at any rate, on the ground of utility. Take, for example, the splendour of the crown, the support of the dignity of the peerage,—jobs for the enrichment of the ruling or influential few, and jobs for the amusement of the ruling and influential few.
Not only the comfort of the individuals, but the security of the whole community requires that, as well against the calamity of famine as against external hostility, individuals should be protected; the treasure of the comparatively opulent, is an insurance office to the comparatively indigent.
But forasmuch as it is only in a minute ratio that increase of happiness is concomitant with the increase of the external means of happiness, the principle of equality requires that so far as may be, without taking away the inducement to productive industry and frugality, the opulent few should be prevented from doing injury to the indigent many, by means of the power necessarily and proportionably attached to opulence: and that so often as this can be done, without the production of the sensation of loss, opportunity should be taken of breaking down large masses into smaller ones.
Hence it is that, on the death of the proprieprietor, provision is made in the civil or distributive branch of the law, to prevent it from falling entire into the lap of any single individual, in a family of brothers and sisters, to the exclusion, total or partial, of the rest.
Another instance in which the matter of the Civil Code belongs in spirit to the Constitutional Code, is—that of the sort of institution already spoken of, called a Foundation. Foundation Edition: current; Page: [a]Edition: current; Page: [b]Edition: current; Page: [d]Edition: current; Page: [35] is another name for legislation. Under the name of a founder, a man (if permitted by the legislator) may exercise those same powers in a manner not less effectual, though neither declared nor open, nor by many an eye observed.
N.B.—The division into Volumes applies only to the intended Arrangement for the original Edition, of which only Vol. I, and Chap. X. passed through the Press. The division is preserved here, as it is frequently the Author's Method of referring to the Code, in his Miscellaneous Works.
The legislator recognised as such, has equally at his command two instruments—punishment and reward,—each of which, or both, as in his eyes occasion requires, he employs in the performance of his work. Of these two instruments, openly and immediately the founder employs but one, viz. reward: but immediately, and to many an eye secretly, he employs the other likewise. For in truth, such is the connexion between those two instruments, that he who has either at his command, has at his command the other likewise: each of them is in effect contained within the other. Subtraction of reward is punishment; subtraction of punishment is reward.
Under a weak and purblind legislator, a foundation is an instrument with which the crafty individual may undermine the power of the legislator and set up his own in the room of it.
Under a crafty legislator, a founder with his foundation, may be an instrument with which, without being seen to be engaged in it, the legislator may give advancement to his own private, at the expense of the public, interest. He may thus at once demoralise and disintellectualize the great body of the people over whom he rules.
Take the following example: and in this one example behold how thin and indeterminate are the divisions by which the abuse and the use are separated.
First take a foundation having for its object the diffusion and advancement of this or that branch of art and science; or in a word, of all branches taken together. What can be more innoxious? What can be more manifestly useful and proportionably laudable?
All this while, whether it shall be useful or in the highest degree noxious, depends upon a difference, to many an eye so slight as to be imperceptible, in the mode of teaching to which the mass of reward, which the foundation has for its instrument, is annexed.
Leave the whole field open to inquiry, unreserved and unfettered inquiry,—useful or useless, everything that is done and said is at any rate innoxious: for if from one mouth noxious matter issues, from another comes medicinal matter, which neutralises it and destroys its effect.
But, be the portion of the field what it may—on that portion be the question what it may—let the supposed service be, giving support to one side of that question, to the exclusion of the other—now it is that the reward becomes poison. To gain it, he whose real opinion is on one side of the question pretends it to be on the other; and employs his endeavours in inculcating it as if it were his own. Here, then, if insincerity be immorality, already behold the moral poison. But to no man is the idea of his own immorality a pleasant one. Feeling it an unpleasant one, his endeavours will be naturally and constantly at work in ridding him of it. For this purpose, nature affords, and on every occasion presents, an appropriate process. It may be styled the self-deceptive process. The receipt is this. Be the subject what it may, be the question what it may, be the side of the question what it may, that you have pretended to espouse, direct your attention to the arguments in favour of that side, keeping it turned with inflexible perseverance against all arguments in favour of the opposite side.
If your understanding is not more or less above the level of that of the ordinary run of men—if at the same time the reward with the punishment included in it, is strong enough to give to your attention the requisite fixity, sooner or later, the opinion, howsoever at one time scorned by you, becomes yours.
Were the treasures of both the Indies exhausted for the purpose in the offer of a reward, support could not be purchased for an opinion more palpably and flagrantly absurd than those are, which minds in countless millions have actually been made to fold in their embrace.
Introduce religion, and with her, in addition to insincerity, comes cruelty, or in the words ascribed to her, hatred, malice, and all uncharitableness. To cause men to teach some absurdity or other, treasures, up to the value of whole kingdoms, have been employed. To cause men to force themselves into the belief of it,—or rather, for that can scarcely be said to be possible, to keep out of their minds the disbelief of it,—eternal terments, i. e. the fear of them, has been, and continues to be employed. But, proportioned to the difficulty of keeping out this unbelief, and thereby of purchasing a supposed security against these torments, will be the uneasiness experienced by the miserable patient, as often as any consideration tending to produce such disbelief is presented to his view. Proportioned to this uneasiness, will of course, be the anger excited in his mind, the anger of which any man who has contributed to the production of this uneasiness, will be the object. This anger, there are two classes of persons by whom it will be shared: the hypocritical knave by whom, with the full consciousness of its absurdity, the dogma has been inculcated, and the miserable dupe by whom, for want of courage to open his eyes to the absurdity, it has been embraced.
Now then comes the cruelty. The more flagrant the absurdity, the greater the difficulty of causing men either to embrace the dogma or to pretend to embrace it. The greater the difficulty, the greater moreover the anxiety of the tyrant, by whom the command to profess the belief of it, has been issued, lest universal indignation, with its consequences, should take place of the universal prostration of understanding and will, the Edition: current; Page: [36] production of which he has thus hazarded himself to endeavour at. To quiet this anxiety, to satiate this anger, if moderate punishment is not sufficient, immoderate must be employed: and thus in Spain and Portugal, have come those temporal and visible burnings, forerunners and prototypes of the announced immediately future, though as yet invisible, ones. Such are the scenes which in Spain and Portugal, the hypocrites and their dupes have witnessed and enjoyed: such are the scenes which, in England hypocrites and their dupes (unless in England, man is an altogether different animal from what he is in Spain and Portugal) have never ceased, nor as long as man is man, can ever cease, to wish to witness and to enjoy;—to enjoy in that same land which, two centuries and a half ago, presented these same scenes to the wisdom and piety of their ancestors.
To the vocabulary of tyranny belongs the word mercy. The idea expressed by this word is a sort of appendage to, and antagonizes with, the idea designated by the word justice.
The word justice, as but too commonly employed, matches with the word deserved, as applied to punishment. In this sense, penal justice is exercised by the application of punishment on the occasion on which, and in the quantity in which, it is deserved. In this case, if mercy be exercised, it is in opposition to, and at the expense of, justice: in so far as mercy is exercised, justice is not done. What in this, as in every case, the greatest happiness of the greatest number requires, is—that if, on the occasion in question, the application of the punishment in question would be conducive to that happiness, the punishment should be applied; if not, not: if, in either case justice is administered, no such thing as mercy is exercised in either case. Under a government which has, for its actual end, the greatest happiness of the greatest number, thus it is that mercy is unknown. Mercy unknown—and why? Only because tyranny is unknown. Under a representative democracy—under the government of the Anglo-American United States, for instance—mercy is unknown, or at least might be so with great advantage, and therefore ought to be unknown. Under that government, for a functionary as such to stand up on any occasion, and say,—I will, on this occasion, show mercy, would be as much as to say—the power of a tyrant is in my hands, but on this occasion I will not exercise it. The surgeon, when it appears to him that it would be for the greatest happiness of the individual under his care that one of the patient's legs should be cut off, does he say—I will do justice upon this leg. As little, if it appears to him that, without cutting off the leg, a cure may be effected, does he say—I will show mercy to this leg.
It is for the accommodation of tyrants, and that they may receive tribute of praise, which soever course they take, in whichsoever shape they do mischief to the public, or in which way soever they afford gratification to their own passions and sinister interest.
If for the advancement of personal interest or for the gratification of present passion at the expense of lasting personal interest, punishment is applied, justice is the word: if, for the advancement of personal interest in that same quarter, or for the gratification of this or that official servant, interfering gratuitously, or for a price, punishment is forborne to be applied, mercy is the word: in the one case, insult is offered to the public in one shape; in the other case, in the other. In the one case it is on the score of wisdom that the praise so sure to be bestowed is bestowed—in the other case, on the score of humanity, benevolence charity, clemency, what you please: clemency is a name given to supposed or alleged beneficence, when exercised by the exclusion of punishment, and seated on a throne.
The greater the aggregate quantity of punishment ordained by law, the greater is the quantity of mercy capable of being exercised by particular prerogative, in opposition to, and at the expense of, the general tenor of the law. Accordingly, where mercy is most heard of, be assured there is most tyranny. The making a ground for the exercising of tyranny under the mask of clemency, is one purpose for which punishment without limit or measure is anywhere by law established; the making a ground for the praise of benevolence, and thus providing malevolence and tyranny with a mask, is another purpose.
Under an absolute monarchy, malevolence, selfishness, tyranny, and thence punishment established by law, being unbounded, mercy is at times scattered with a proportionably lavish hand. When it has been the pleasure of the monarch to go through a matrimonial ceremony with a partner of the same class, punishments have been remitted by wholesale, gaols delivered at one stroke of the innocent and the guilty: criminality in all its shapes let loose, to recommence its ravages, and evil in all its shapes thus sown over the whole field of action.
When in the person of another alleged supporter to the throne, providence has been pleased to add another mouth to the mouths employed in devouring the produce toiled for, by labouring hands, here has been another occasion for the reproduction of evil in those same shapes.
Under a limited monarchy, the quantity of punishment capable of being applied, not being so completely unlimited, the quantity of mercy for which, with its due reproach and undue praise, there is room, is not quite so great. Room for it, however, always exists, and is always occupied in enormous superabundance. The unofficial intercessor is Edition: current; Page: [37] mostly kept out, by the official arbiter, who, with the language and deportment of obsequiousness, on pretence of responsibility, dictates on each occasion to the vice-god, which of two courses his next to divine pleasure shall take.
In England, while men are condemned to death by hundreds,* death is inflicted on them by units: the difference between the unit and the hundred has for its cause the purposes above-mentioned.
In practice, the privilege of thus abandoning men to destruction, or saving them from it, at pleasure, is shared among functionaries in rank, office, number and proportion,—all indeterminate; or, at best, hidden from the eyes of all but the few who share among them a sinister interest, in the abuse of it: a judge or lawyer of one class or denomination on one occasion, of another on another. Along with, and above them all, stands the arch-functionary, who numbers among his titles that of keeper of the king's conscience: a man out of whose mind, by the indiscriminate defence of right and wrong, (with no other difference than the predilection naturally conceived, for the best customer,) everything that, in any other mind, has ever been designated by the name of conscience, has long before his taking that exalted conscience into his keeping, been obliterated.
Remission of punishment, yes: for that, there may be good reason on various occasions; but they are all of them capable of being, and all of them ought to be, specified.
In one word, mercy and justice are incompatible. In a government where there is room for mercy, it is because justice is overruled by cruelty. As mercy is a subject of praise, the more cruel the tyranny, the greater is the room made for praise.
A few words as to Conspiracy, Treason, and Libel.
Under a representative democracy, no place can conspiracy ever find for itself: for needless, and to this prefix or subjoin impossible,—such are the properties which it would find belonging to itself.
Impossible: for there is nobody to conspire against. Under a monarchy—under an absolute monarchy at least, there is a person to conspire against: there is the monarch: for if you get possession of his person, you may get possession of his power. Under a representative democracy there is no such person. For, by getting possession of the chief magistrate, you cannot get possession of an atom of his power.
In the import of the word conspiracy, where the act is treated on the footing of a crime, the idea of secrecy is included: to conspire, is to make mutual communication of opinions, desires, and eventually-intended endeavours, in secret. These desires and endeavours, if they bear any relation to the government, have, for their object, the bringing about some change in the government: which change, howsoever desirable in the eyes of those who thus project it, would not (so they are assured) be so in the eyes of the existing rulers;—for, on the supposition of its being so, the secrecy has no use. In an absolute monarchy, no change presented by any pair of hands more than one, can be agreeable in the eyes of the monarch or of any under him. If in itself it be agreeable to them, and it had not of itself presented itself to any of them, they may vouchsafe acceptance to it, if presented to them by no more than a single pair of hands, and in a cringing attitude: yes, and even if presented by any such hands, after conference on the subject between two or more persons in an erect posture. But in this case, while they are availing themselves of the plan, they will punish the authors as being conspirators.
Under an absolute monarchy, any discourse of a nature otherwise than agreeable to the monarch, (or any of those by whom execution and effect is given to his will,) is, if uttered by word of mouth in the hearing of any other person, a seditious discourse; if committed to print or writing, a seditious libel; such of course is the character of every discourse by which intimation is given, that in this or that particular, still more if in general, the system pursued, or the conduct of those who act under it, might if different from what it is, be better than what it is,
Under a limited monarchy, the case is, in these respects, the same.
Under a representative democracy, suppose conspiracy not impossible—suppose it not groundless—still there could be no need of it. Under a representative democracy, individuals in any numbers, may, in any places, at any time, meet, and say, and hear, whatsoever (whether in relation to the system pursued, or in relation to the conduct of those who act under it) is agreeable to the respective speakers; to whatsoever degree it may be otherwise than agreeable to the hearers, or to their common rulers. Be the purport of what is thus said what it may, the speaking of it will not be seditious speaking: written or printed, unpublished or published, a paper in which it is contained will not be a seditious libel. Suppose a proposition made for killing, or beating a judge, a governor, a president: for pulling down or plundering his house, a proposition to any such effect, if followed by any correspondent endeavour, will be an offence against person or property, as the case may be, and punishable as such: for a judge, a governor, a president, is an individual. But in neither case would it be either treason, or say, lese majesty, divine or human, or so much as sedition: at any rate, if by the legislature of any such state, the judge was suffered to Edition: current; Page: [38] punish it as such, it would be in humble imitation of an original, by the imitation of which on any one occasion, they ought to be covered with shame.
Under the general government of the Anglo-American United States, there is no such thing as a seditious libel. Charge the president of congress, charge the vice-president, charge the chief justice with having taken a bribe—do this in print, circulate the print all over the United States, no one of them will cause you to be punished as for a seditious libel, no one of them will have it in his power so to do: for no such injury will any criminal prosecution lie: no information granted, ex-officio, without motion: no information granted on motion: no, nor so much as any indictment. Action civil, i. e. non-penal, yes, viz. as for defamation. Prove thereupon, the imputation to be well grounded, in a man on whom it has been cast, and he will be punished accordingly: though such is the effect of blind obsequiousness to a corrupt original, be the evidence ever so complete, it will have to be delivered over againin a needless and worse than useless prosecution, required by lawyer-craft for the purpose.
If you fail in the proof, you may be punished for the injury, by being obliged to pay money on that account to the individual injured: and it is right you should be so, if you had not before you a reasonable ground for believing the imputation: much more, if you are conscious of the falsity of it. In this there would be nothing but what is right: for though he is neither a vice-god, nor a magnate, the person in question is an individual, and an individual whom you have injured.
Under a representative democracy, though there can be no lese majesty, divine or human, nor anything of that stamp, there may be hostility: for there may be disagreement; disagreement by men in any numbers on two opposite sides: and how improbable soever, such disagreement may rise to hostility. Here then is war: and this war a civil war. It will be carried on as in the case of ordinary war, carried on between civilized nations: it will be carried on, by each in such a manner, as shall present to its view the fairest promise for the attainment of its end, with the least damage,—in the first place to itself, in the next place to the enemy. Some will accordingly, on the losing side at least, be killed, others wounded, others in the situation of prisoners, left at the disposal of the commander of the victorious army.
Having them at his disposal, how will he deal with them? Does he put them to death in cold blood, with a gang of lawyers to give form and colour to his cruelty? Will he, with any such gang for his prompters, tell them that their blood is corrupt, and that on that account it was just and necessary that their wives and children should be destitute of subsistence, and in that state kept by law, as far as practicable till they die? No: he will do nothing of all these things: the men he will keep to the best of his power; their arms he will as soon as possible take into his custody, lest they should turn them against him and his. But sooner or later hostility will give place to peace. On that joyful occasion these captives will, the whole remainder of them, be sent back to their homes and families, bodies fed, wounds healed, ignominy in no shape, either cast upon them, or endeavoured to be cast. Whence all these differences? Answer: On neither side has any vice-god been seen or fancied: and on neither side has any such word as legitimacy been pronounced.
In so far, then, as it matches with, and is determined by, the state of the constitutional branch of law, the state of the penal branch of law will, under the different forms of government, present the different aspects following:
Conscious, more or less, of the opposition that has place between their own particular interests and the greatest happiness of the greatest number: alive, at the same time, to a sense of the dangers that attach upon the situation, from which they derive that sinister interest;—haunted, not merely by a correct and adequate, but by an exaggerated image of those dangers,—under monarchy, whether absolute or limited, under aristocracy, under every form of government but representative democracy,—never, in the imagination of the ruling one, of the subruling or the influential few, can the mass of securities in which they intrench themselves be sufficient: in that part of the intrenchment which is the work of penal law, death, substituted to punishment in any less odious and more appropriate form; torture, antecedent and concomitant, added to simple destruction of life; punishment of the acknowledged innocent, added to that of the reputed guilty; confiscation; under pretence of corruption of blood, interception of inheritance; for that, and other purposes, pains of hell in prospect, under the sad necessity of not being able to apply them in present reality, and existence;—all these penal securities, put together, are insufficient to produce that inward tranquillity which conscience keeps for ever banished from those misery-bound, and misery-producing situations. Hence it is, that every act which, in those distempered imaginations, threatens to substitute to the superlatively mischievous form of government, in which they behold the source of their sinister benefits, a form in any degree less mischievous,—is, by that same distempered imagination, elevated to a rank towering above the most mischievous of those offences, by which real mischief is produced.
Treasons—political offences—state offences—offences against government, are the denominations by which acts bearing this character are, in these days, commonly designated; lese majesty divine and human, is of the number of the denominations by which, in former days, Edition: current; Page: [39] offences of this same description were, by the wisdom of the ancestors of those who number ancestry among their possessions, denominated and distinguished. Of lese majesty a division was made, but with little difference, between its parts, and between that which was human and that which was divine: lese majesty human, an offence against the power, crown, dignity, and majesty of that but too visible god, whose throne was upon earth: lese majesty divine, an offence against the power, crown, dignity and majesty of the invisible God, whose throne is in heaven.
The authors, printers, publishers, circulators, lenders, borrowers, hirers, readers, hearers—if not denunciators, of libellous discourses,—all discourses either actually displeasing to the monarch, or any of his chosen servants, have always been punished by halter, ball, bayonet, or imprisonment.
Under a representative democracy, scarcely, for offences of this class, it has been seen, can so much as a place be found. On the one hand, stand offences of individuals against individuals: on the other hand, acts of hostility by enemies against enemies. Rulers being individuals—rulers and subjects at the same time,—for person, reputation, property, and condition in life, rulers receive the same protection as subjects, and of no other protection have they, or can they conceive themselves to have, any need. Under a monarchy, by sudden death inflicted upon the chief of the government, changes, to the importance of which no limit can be assigned, may be produced. By an operation, to the same effect, upon the person of a chief magistrate, in a representative democracy, no such effect—scarce any such effect as would in any sinister estimate be worth producing, would ever be produced: another as good as he, and no better, (nor of any better would there be any need,) would, as soon as the election had run its course, step into his place.
In a monarchy, especially if absolute, take possession of the chief magistrate, you take possession of an immense part, if not the whole, of the power which is in his hands. He signs what laws and orders you give him to sign, he utters whatever speeches you give him to utter, he takes whatever oaths you give him to take: reserving to the first moment, after he is out of your hands, the signing of repealing-laws and counter-orders, the utterance of counter-speeches, the declaration that the former oaths were null and void, and the taking of as many counter-oaths, if any, as shall, in his eyes, afford a promise of being contributory to the purpose of the moment, whatsoever that purpose be.
Whatever course of conduct he has ever given a promise to pursue, with this ceremony, or sanction to the promise; if at any moment being called upon to pursue a different course, it be more agreeable to him to persevere in the original course, he will assure you that oaths, all oaths, are things sacred and inviolable. If, at the moment in question, it be more agreeable to him to violate the oath, than to keep it; he will take a distinction: all proper oaths, he will assure you, are sacred and inviolable, and, as such, ought to be fulfilled: all improper oaths are, in their own nature, null and void, and, as such, ought not to be fulfilled.
Make your way into the capital some dark night, steal into the president's bed-chamber, through one of the windows, drag him out through it, and convey him into the hut, or boat, you have provided for the purpose, then see what you can make of him: what power you can get possession of by this exploit: what money, what arsenals, what fortresses you can get possession of: what change you can, by this means, make in the constitution. But no: whoever you are, you will do no such thing: if you are a thief, you will ransack his pockets—the man you will not meddle with, for no use whatever could you make of him.
Under a monarchy, accept the invitation of the wife of the chief magistrate, you beget a future possessor of the throne, taking your chance for keeping your head or losing it: in a representative democracy, accept the like invitation from the wife of a chief magistrate, you beget a future possessor of a farm or a counting-house: your head is not in danger; your purse is, or is not, according to circumstances.
The imputation of moral depravity does not necessarily attach, upon any endeavour, to subvert the constitution, or to oppose the power of any individual functionary or functionaries, although it be by force. No such endeavour can be used with any chance of success, unless in the opinion of a considerable portion of the members of the community, such success would be acceptable to the whole, as contributing to the greatest happiness of the greatest number.
The government of the state will, of course, defend itself against all such as in its eyes are domestic adversaries, as well as against those who, in its eyes, are foreign adversaries.
If, in the course of any such endeavour, injury be done to person, property, reputation, or condition in life, those who have been concerned in doing it, will in this, as in any other case, be exposed to the burthen of compensation, together with whatsoever further burthen has been provided, on the score of punishment: if no such injury has ensued, there can be no need of any specific infliction in the name of punishment: the notoriety of the endeavour, coupled with the notoriety of the ill-success, will itself have the effect of punishment.
For the endeavour to give aid to a foreign enemy, to the detriment of the state, the penal consequences say, shall or may be as follows, namely:—
Personal exposure, with appropriate inscription,—banishment or confiscation.
The mode of personal exposure may be as follows:—Edition: current; Page: [40]
The patient to be placed in an elevated situation, in the middle of some open space, sitting in a chair, and confined thereto, with his hands tied behind him, so as to prevent his employing them in concealing his face: the chair turning on a pivot in such sort, that by four periodical movements, his countenance may be presented to the view of all the spectators in the surrounding circle: a covering of iron, in the manner of a bird-cage, to protect him from corporeal injury by missiles from the crowd.
Banishment for any term, not exceeding a year, with imprisonment in such sort as shall be necessary for carrying the banishment into effect: the banishment, at any time before expiration, renewable for the same or any less time, by a fresh order, issued without fresh trial by the minister of justice, notified in the government newspaper: and so for any successive number of times.
Confiscation of property, total or partial: temporary, but renewable as above.
Such confiscation has not for its object anything more than the preventing the patient from employing his property to the detriment of the state. It is not, therefore, meant to be taken without reservation made for his use, of an income sufficient for the bare subsistence, at least of himself, and otherwise destitute wife and children.
The expense, vexation, and delay incident to judicial procedure, fall most heavily on those by whom they can least be endured, viz. the greatest number: these burthens have hitherto, by official and professional lawyers, under the sanction of the legislative authority, been maximized.
Of those by whose labours the matter of abundance is furnished to the rest, by far the greater number are everywhere so circumstanced as to have no money at all to spare for any such afflictive casualties. In the case of an individual of this class, whether it be in the shape of money or of time, any the slightest addition to such expense of time and money as the nature of the case renders absolutely unavoidable, operates as a denial of justice. It exposes every individual by whom such expense cannot be sustained, to suffer oppression to an unlimited amount, at the hands of every individual by whom such expense can be sustained. It operates as a bounty upon oppression, and as an instrument in the hand of the oppressor in every case in which the power of the judicial authority is among the instruments by which the oppression is exercised.
On this account it is that the following arrangements are of such indispensable importance. Judicatories to be near each man's house, and thence correspondently numerous. Judicatories to be paid by government, out of the common fund, and not by the individual suitors,—individuals by whom, so far from greater benefit, less benefit is reaped from the services of the judge, than is reaped by non-litigants; because that protection and that security which litigants do not obtain, non-litigants do obtain without expense to themselves.
Judicatories never to be in a state of inaction, so long as there is any business to be done.
The sort of causes which ought to have the precedence in the attention of the legislator, will be those in which the greatest number are in one way or other concerned; and among them, those which are of the most frequent occurrence. These, in the eye of the Legislator for mankind, will be the most important causes. In a code which has for its object the greatest happiness of the ruling few, in particular of the ruling one, this order will, of course, be reversed.
Conformably to the principles of this code, no tax can be imposed for any of the purposes following:—
Augmentation of the collective splendour of the state, or of its functionaries collectively.
Augmentation of the splendour of any one functionary in particular.
Advancement of purely agreeable or curious branches of art and science.
Expenditure of money derived from any other source, is the same thing in effect, with a tax to that same amount.
For obtaining equal security, it is requisite that the military means of self-defence, be spread all over the territory, and all over the population, with as much equality as possible.
That, accordingly, skill in the use of arms, and (as the means and instrument of it) the being instructed and exercised in that use, be with that same degree of equality, universally diffused.
For eventual defence against external enemies, it will or may be necessary, that at all times, a body of men, more or less considerable, be kept up, in whose instance military exercises will occupy the whole of their time. The effective force of this constantly trained and exercised class will, therefore, be of necessity, considerably greater (numbers being equal) than that of the less frequently exercised class. In the hands of a mischievously ambitious commander, this regular force might be dangerous to the independence of the rest of the community, if the inferiority which has place in the article of skill, were not decidedly more than countervailed by superiority in the article of number, on the part of that less perfectly exercised body, who compose so very Edition: current; Page: [41] large a portion of the whole population, and whose interest is nearly identified with that of the whole.
Moreover, as the members of the imperfectly-trained force, will maintain themselves, while those of the perfectly-trained force, must be maintained at the expense of the rest of the community; economy joins with political security, in prescribing the confining the perfectly-trained force within its narrowest limits.
Hence came two correspondent subordinate objects or ends in view, expressible in these words: militia force, maximized: regular force, minimized.
In the designation of this species of unofficial judicatory, the appellation Public-opinion Tribunal is here employed, in conformity to, and compliance with, universal usage. By the word opinion, however, an erroneous conception is liable and apt to be conveyed and produced, namely, that it is by mere opinion—by the mere exercise of the judicial faculty, that those effects, which, on the actions of other persons are so manifest, and so universally acknowledged, are produced. This conception is, however, an erroneous one; for it is only by a sense of interest, by the eventual expectation of pain or pleasure, that human conduct can, in any case, be influenced: if it is by any opinion, supposed to be formed by other men, that a man's conduct is in any way, and in any degree, influenced, it can only be through the medium of expected action, and thence of correspondent will, on the part of the individuals in question, that the influence can be produced: the expectation that, by the opinion, favourable or unfavourable, correspondent will, will be produced, and by correspondent will, correspondent action, in the shape of good or evil offices; and by such good or evil offices on the one part, pleasure or pain on the other.
The members of the public-opinion tribunal in a community, are the members of that same community, the whole number of them, considered in respect of their capacity of taking cognizance of each other's conduct, sitting in judgment on it, and causing their judgments in the several cases to be made known. In the English House of Commons, in the formation of a committee of the members for this or that particular purpose, an order that now and then is seen to have place is, that all who come to the committee, shall have voices. The members of the public-opinion tribunal, are to the members of the community at large, what the members of the House of Commons' committee thus formed, are to the members of the house.
The public-opinion tribunal may be conceived as sitting and acting in full assembly, or through the medium of a committee, a specially and actually appointed committee.
In the character of a full assembly, whatsoever is said of it, may contain more or less of truth, but must unavoidably be mixed with more or less of fiction. The best course, therefore, will be to consider it as acting by a committee: in this case, all fiction may be excluded. That which is real, being thus explained, the explanation may afterwards be applied with advantage, to the mixture of the real and the fictitious.
As this tribunal, by the counterforce, which, by its punitive power, it applies to the power of government, contributes to keep it in check, and keep its course within the paths indicated by the greatest happiness principle, (thereby operating as a security for appropriate moral aptitude in the conduct of rulers as such,) so may it, in no inconsiderable degree, by its remunerating power.
There are two distinguishable forms in which influence, more or less effective, may be given to the will and understanding of the great body of the people: in one form, their opinion—that is, the opinion of such of those whose opinion can be brought to bear upon the subject in question—is accompanied with a will, clothed with power; in the other form, whatsoever effect is given to what passes in their minds, it is by the declaration of their opinion alone that the effect is produced. In the one case, of any declaration of their opinion, obligatory effects are made to follow it; in the other case, no such effects are made to follow it.
Of the case in which its opinion receives an obligatory effect, the function of a jury is an example. A jury, in so far as it is what it professes to be, is a sort of committee of the whole body of the people,—a section of that vast polypus. The decision or verdict of the jury is productive of an obligatory effect, i. e. it determines the fate of the cause. Say, public-opinion tribunal, adopted into, and constituting a constituent part of the legal tribunal.
The case in which the opinion has no obligatory effect would have place, on the supposition, that the verdict of the jury, though pronounced in the same manner as in the former case, would not be obligatory upon the judge, but would leave him at liberty either to give effect to it, or to give effect to a decision of his own framing, howsoever different from it, or even directly repugnant to it. Say, public-opinion tribunal, delivering verdicts, but those verdicts not obligatory.
A third mode would have place, if a certain number of men, in the character of a section of the public-opinion tribunal, stood engaged to be present during this or that part, or during the whole progression of a cause or suit; but without either obligation or power, or, at any rate, without obligation to deliver any conjunct portion of discourse in the character of a verdict. Say, a silent jury.Edition: current; Page: [42]
In the second mode, the effect produced on the mind of the judge, by the counterforce thus applied, would be produced by what they were known by him to think: in this third case, by what they were supposed by him to think.
These judges, by whom every person and everything are to be judged, who, it may be said, are they? Who but the members of that body, the vast majority of whom are, and always will be, in all places, and at all times, the comparatively ignorant and weak judgmented: and is it by these least informed, that all better qualified judgments are expected to be influenced and guided?
Answer: It is not from any particular judgment, ascertained to be on any occasion actually delivered by them, that the good here looked to, is expected. What is not proposed is, that the votes of any of them, shall on any particular question, be collected: on no other occasion than that of an election of deputies will that be done, in regular course. It is from the opinion expected to be on each occasion inwardly entertained by them, that the good is looked for. It is not from anything expected to be said, only from what it is expected will be thought, that the benefit is expected. Included in this aggregate judgment, are the judgments of the most unapt, as well as those of the most apt.
By a functionary, especially if acting singly, as often as any act of misconduct is committed, the consequence of it, sooner or later, or at any rate the tendency of it, will be to produce, in some shape or other, evil, that by individuals in a number more or less considerable, will be felt: in a word, suffering in some shape or other on the part of these same individuals. To all, by whom any such suffering is experienced, will at any rate be known, that they do experience it: and among those who experience, added to those who witness those same sufferings, there will always be some, who being qualified to trace them to that misconduct in which, as above, they have their source, will naturally be disposed to make communication of such their discoveries to the rest. As to the opinions by which, in each case, the cause of the suffering is undertaken to be assigned, they will commonly be, many of them wrong, but on each occasion, they may be, for aught that the rulers can know, in any number, right: and it is by the fear of the conduct that may be the result of these opinions, that the check which applies itself to the conduct of the ruling few, is applied, and the corresponding benefit produced.
In his quality of member of the public-opinion tribunal, every member of the constitutive body in giving expression to a sentiment of disapprobation so grounded, exercises a judicial function: any such expression, if made in the hearing of others, may be considered as a motion made for censure on the conduct of the functionary in question: if by any author of such virtual motion, in consideration of such supposed delinquency, a vote be given at any election, in disfavour of such functionary, the part acted by such vote may be considered as an act done for the purpose of giving execution and effect to the condemnatory judgment, so formed as above. On the occasion of an ordinary suit between individual and individual, or between government and individual, any such union of the functions of accuser, judge and executioner, would be incompatible with justice: but in the case here in question, all that it amounts to is this, namely, that for his guidance in the exercise of his share of constitutive power—the giving of his vote—the individual takes the only course which the nature of the case admits of.
The following may be employed amongst other means of bringing the force of the popular or moral sanction to bear with greatest advantage upon the conduct of public functionaries in the several departments:—
In every apartment in which a public functionary sits to do business, keep in view of the public, a table in placard form, containing admonitory rules, and notices, having for their object the prevention of the moral failings, to which by his situation, the functionary is most exposed. To these admonitory rules and notices, the distinction between universally-applying and particularly-applying, will be found applicable.
I. Notices.
1. Name of the edifice, over every door that opens into, or is visible from, the public highway.
2. In each edifice, over each door of each chamber, the name of the chamber.
3. In each chamber, over the seat occupied by each functionary, the name of the office, and the proper name of the functionary who sits in it.
4. In each chamber, over the door, designation of the hour at which the functionary ought to take his seat, and of the hour at which he is at liberty to desist from the exercise of his office.
5. So, an almanac, marking the months, weeks and days of the attendance in each year.
II. Admonitory rules.
1. Admonitory rules of general applicability, expressive of the duties of the functionary.
2. Admonitory rules of general applicability, expressive of the duties of persons attending at the office as having business therein.
3. Admonitory rules of general applicability, expressive of the powers given to the functionaries in question, for preventing interruption of the business of the office, and annoyance of them in the exercise of their functions.
Rule of general applicability, expressive of Edition: current; Page: [43] the duty of the functionary. Duty of urbanity: abstinence from the insolence of office.
(1.) In this office, let the functionary consider, that it becomes him not, in quality of his office, to assume any superiority over any person having business therein: that, in his quality of public functionary, his situation with reference to every such person, is rather that of a servant than that of a master, he being remunerated at the public expense for the rendering of such services as appertain to the nature of his office.
(2.) If in his dealings with any suitor to the office, any expression which by such suitor is regarded as an expression of contumely, ill-humour, or undue impatience or contempt, be uttered by the functionary, the suitor, may, if he pleases, upon the spot, commit the same to paper, and require of the functionary under his signature to avow or deny the having employed it. If the functionary refuse, a memorandum may be made of such refusal, in order to form the groundwork of an accusation before a judicatory.
Of the powers given to the public functionary, the sole object is, the enabling him to fulfil his duties: to render to the public, the services for the rendering of which the office has been instituted. The institution of it, has not among its objects, the affording gratification to the vanity, much less to the pride, of the functionary, at the expense of the feelings of those who have business to do at his office.
Of these admonitory rules, the use is, to apply the force of the moral sanction, in cases when, by reason of the overweening power of the functionary, or in case of transgression the impossibility or difficulty of obtaining adequate evidence, the force of the political sanction is not sufficiently applicable.
A solemn engagement, in which either the rules themselves or the substance of them is repeated, should be pronounced by the functionary in the face of the public, upon his entrance into office. It might, if worth while, be repeated periodically: for example, in case of a new constitution, on the anniversary of the celebration of the constitution.
For what purpose professedly employ and seek to increase the power of this unofficial judicatory?
Answer: To a representative democracy, this unofficial, unpaid, and incorruptible judicatory, is an instrument of support: and in regard to it, the object and endeavour will be, to maximize the rectitude of the decisions given by it, in the several instances; and in so far as that rectitude has place, the force with which it operates.
To every other form of government, it is by correspondent causes rendered an object of terror and anxiety: though the magnitude of its power is universally acknowledged among them. In proportion, however, to the magnitude of the force attributed to it, is the endeavour to oppose whatsoever is salutary in its influence: that is to say, either to give to it a sinister direction, by the united power of force, intimidation, corruption, and delusion; or, in so far as the giving to it any such sinister direction is regarded as impracticable, to exclude from its cognizance every topic that presents itself as bearing any relation to politics, morals, or religion.
The tribunal of public opinion may be considered as composed of two sections: the democratical and the aristocratical. On every occasion, the conduct of every human being will be determined by his own interest, taken in its most extensive sense: that is, his own interest, according to his own conception of it, correct or incorrect, in relation to it at the moment of action. On every occasion, the opinion acted upon by each individual, in his character of member of the public-opinion tribunal, will therefore be determined by his own interest: so therefore will that of the whole tribunal, considered as a whole, be determined by the interest of the majority of those who act as members.
The interest of the democratical section, is that of the majority of the members of the whole tribunal taken in the aggregate: it is consequently the interest of the subject many: the opinion on which it acts will be that which is in the highest degree contributory to the greatest happiness of the greatest number, in so far as the conception entertained by the several members in relation to their respective interests is correct.
The interest of the aristocratical section of the public-opinion tribunal, is that of the members, or the majority of the members, of that portion of the entire number of the members of the political community, which is composed of the ruling and otherwise influential few: of the highest rank of the functionaries of the state, with the addition of such other classes, whose particular interests are in league with theirs. The opinion on which, as in their several other characters, so in this, they will act, will therefore, in each instance, be determined by the interest common to the members of this section. But in a great, not to say the greatest, part of the field of morals, including that of legislation, the interest common to the members of this narrow section is in direct opposition to the interest of the other more comprehensive section.
The democratical section, or the section of the subject many, is composed chiefly of the productive classes, including under that denomination, those occupied in giving facility to the distribution of the good things produced: without which distribution, production would not be of any use. The section of the ruling and otherwise influential few, is composed principally of the non-productive classes.
Corresponding to the deviation in regard to interest, will be the several opinions pronounced and acted upon by these two sections. Edition: current; Page: [44] By the democratical section, disrepute, or say disapprobation, will be attached to all such actions, as, in the conception of its members, are detrimental to the universal interest: and that in a degree of force proportioned to the degree of the injuriousness: approbation to all such actions as, in the same conception, are in an eminent degree contributory to the universal interest.
The aristocratical section will be determined by the respective opposite interests, in the disposal of such expression of disapprobation and approbation as it is respectively in their power to make with regard to human conduct, in every part of the field of law and morals.
By approbation and disapprobation understand, in both cases, that which is expressed and otherwise acted upon: immaterial taken by itself, is any which is not expressed or acted upon.
Of this aristocratical section, there is commonly a sub-section, by whom, in appearance, opposition to the work of corruption will naturally be maintained. This sub-section is composed of such of those corruptionists, who, being such in desire and expectation only, without being in connexion with those in possession, will in this way, as in all others, be making war with them, which they can no otherwise do than by accusing them at the bar of the public-opinion tribunal, and using their endeavours to draw down upon them the discontent and resentment of the people. But in no such apparent endeavour have they ever, or can they ever, in the nature of the case, be sincere, as has been fully explained elsewhere.*
Unhappily for the members of the democratical section, their conceptions, their judgments, their suffrages, their language, have till this time been placed almost completely under the guidance, and almost, as it were, at the disposal of, those of the aristocratical: and thus it is, that by the sinister interest of these their adversaries, not only have they been placed and kept under the yoke of misrule, but the only instrument in which they could seek relief from the disorder of misrule, has been employed, in a great degree, in the aggravation of it, and in keeping them, as far as may be, from all thoughts of applying a remedy.
Offences against the person, property, reputation, and condition in life, including power, of individuals,—under these denominations may be included all modifications of conduct detrimental to the happiness of individuals, individually considered, and this whether opposed or not by the power of the political, including the legal sanction. It is the interest of a member of the democratical section, as such, that no such misdeeds as come under any of these denominations should have place in any instance.
With respect to the aggregate mass of these same misdeeds, it is the interest of a member of the aristocratical section, as such, that no offence of any one of these descriptions should have place to the detriment of the happiness of that particular section to which he belongs. But, in so far as the effect of any such misdeed is to operate to his own benefit, though it be to the detriment of the more numerous class to which he does not belong, it is, in his view of the matter, generally speaking, his interest, that to the extent of that case, those misdeeds, in all their several shapes and denominations, should be as abundant as possible: that it should at all times be in his power to inflict on all the individuals belonging to the democratical section, evil in all those shapes, in so far as, by the infliction of it, gratification to himself, in some shape, shall thereby be produced.
It is his interest to have it in his power to beat, maim, or otherwise maltreat, for example, the person of every other man whose lot it has been to fall under his displeasure: to cover him with ignominy, on the supposition of his having committed misdeeds, which in truth he has not committed: to deprive him of any part, or of the whole, of his means of subsistence: to deprive him of the power of directing the conduct of his children during the time of their immaturity: by fraud or force to violate the person of his wife, his daughters, or sisters: all this without danger of suffering on, his own part, on the ground of any of those misdeeds, at the hands of law or otherwise; on the contrary, to possess the assurance of seeing the force of the law employed in securing him against suffering in any shape, on the account of his having committed them.
A right of this sort—this right of doing wrong is, in so far as it is enjoyed by the members of a small class, at the charge of the aggregate of the members of the community, termed in the laws of all nations a privilege; in so far as it is possessed by a single individual, it is, in the language of English law, termed a prerogative.
It is the interest of every member of the aristocratical section, as such, that there should exist a class of citizens, provided he be one of them, in whose power it should be to enjoy benefits in all imaginable shapes, at the expense of the greater number.
If by any efficient cause, the members of the aristocratical section receive the power of producing, on the part of the members of the democratical section, suffering in all manner of shapes, for the gratification of their own appetites, while the members of the democratical section, as such, stand debarred from doing the like, to the injury of the members of the aristocratical, a natural consequence is, that the judgment entertained, as well as declared, on this subject, should, on the part of the members of the democratical section, be unfavourable and condemnatory with relation to this state of things, and so far to a government Edition: current; Page: [45] in which any such state of things is kept in existence.
But for the correspondent and opposite reason, a consequence equally natural is, that of the members of the aristocratical section, as such, the judgment pronounced on this same state of things should be favourable and commendatory.
What is the conclusion of all this? That in so far as it differs from the judgment pronounced by the democratical section, every judgment pronounced by the aristocratical section will be erroneous—erroneous, and to the prejudice of the greatest happiness of the greatest number.
From this it follows, again, that in every factitious assemblage of functionaries, instituted for the purpose of serving as a representation of the public-opinion tribunal, all individuals of whom it appears that they appertain to the aristocratical section, ought to be either excluded altogether, or if admitted, not admitted but in a number extremely small: admitted, not in the quality of voters, where votes would have an obligative effect, but only in the quality of advisers and instructors.
A jury may be considered as a section of the public-opinion tribunal, called in, on a certain occasion of judicature, to serve as a counterforce to the operation of particular and sinister interest in the situation of permanent judge.
In the practice of English law, there are two sorts of juries—the petty or common, and the special. The common jury is a committee of the democratical section; a special jury, of the aristocratical. The common jury is a safeguard against oppression: the special jury an instrument of oppression and injustice, fabricated by the corruptive system.
The judgment of the democratical section has many errors in it: it has some that are common to it and the aristocratical section: it has some which are peculiar to itself. But in proportion as it becomes more and more mature, it becomes more and more favourable to the universal interest; whereas the judgment of the aristocratical section becomes more and more adverse to the universal interest.
The members of the aristocratical section being as much members of the community as those of the democratical section, they have every one of them a vote in this tribunal. And this vote not only has a force and effect not less than that of a member of the democratical section, but a force and effect much greater, rising above it in a scale composed of numerous degrees of magnitude. Still, however, in proportion as the number of the members of the community at large, in the habit of acting in this character, increased, the ratio of the numbers in this more extended section, to the numbers in the more contracted section, would increase: and thus the members of the aristocratical section being constantly in a minority, the whole section would be without much or any influence. To preserve their influence, they, therefore, make common cause, secede from the democratical members, and sit in a section apart, forming as it were a house of lords—having an interest of its own, distinct from and opposite to, the interest of the remainder, and acting in pursuance of that particular and sinister interest.
If, in a committee of the public, the presence of a member of the aristocratical section of it can, with reference to the interest of the public taken in the aggregate, be of use, it can only be with a view to appropriate intellectual aptitude, knowledge and judgment taken together. In respect of moral aptitude, it can scarcely happen but that in comparison with an average number of the democratical section, he will be inferior: his situation exposing him to those temptations from particular and sinister interest to which the member of the democratical, as such, is not exposed. But whatever knowledge and judgment is possessed by a man, communication may as easily be given without a vote, as with a vote, possessed by that same individual. If, then, there be any preponderant demand for the assistance of a person of that class, with a view to accession of appropriate knowledge and judgment, a single individual of that class may be regarded as sufficient, whatsoever be the number of the remainder: in which case, his having or not having a vote in common with them will hardly be worth contending for.
As practice and experience under the constitution in question increases, any deficiency which at the outset may have place in regard to these requisites, in the instance of the democratical members, will be receiving continual supplies: the demand, therefore, for any such aristocratical assistance will, in the same proportion decrease.
In comparison with the aggregate number of the members of the democratical section of the public-opinion tribunal, that of those of the aristocratical will be small. Here, then, is another reason why the number of the aristocratical members in each such committee should be small: for the larger it were, the greater would be the number of those on whom the burthen of such attendance (in proportion as the attendance were felt as burthensome) would be pressing.
From interests, real or supposed, come desires: from desires come expressions of will and expressions of opinion, for the purpose of drawing through the medium of opinion other wills into a coincidence and conformity with a man's own. From the united force of an adequate number of wills, in appropriate and adequate situations, come legislative arrangements.
But, in the drawing together of opinions, great is the advantage which the aristocratical section has over the democratical. In the aristocratical section is the acknowledged standard of taste; and the taste of the aristocrat Edition: current; Page: [46] is always conformable to, and to a great extent determined by, interest—by their separate and sinister interest. To increase their own importance, the ambitious youth of the democratical section, and those who float between the two sections, make a point of adopting declaredly the tastes and opinions of the aristocratical, that they may be regarded as belonging to it, and be accordingly respected and courted.
By substituting the principle of taste to the greatest happiness principle, taste is made the arbiter of excellence and depravity; and thus the great mass of the community is in the very sink of depravity. Witness the use that is made of the words bad taste and disgusting. Bad taste pours down contempt: disgusting is a superlative above flagitious,—it is a quasi conjugate of taste and bad taste. Those of the democratical section, in so far as they adopt such expressions, act in support of the hostile section against themselves. For the rich and powerful will always be the arbiters of taste: what is an object of disgust to them will, to those who follow this principle, be an object of disgust likewise. But that the poor, labouring and non-labouring,—all those who cannot afford a clean shirt every day, and a suit of clothes every two or three months,—are, to the men of the first circle, objects of disgust, is altogether beyond dispute.
As to distinction between these two sections,—to draw any determinate boundary line,—a line, on the one side of which shall be the situation of the several individuals belonging to the one section; on the other side, all the several individuals belonging to the other, is plainly precluded by the nature of the case.
If, of the superiority in question, there were but one element, say factitious dignity, yes: to the aristocratical belong all who possess any particle, however small, of this creature of the imagination; to the democratical all who have not any particle of it. So, perhaps, if instead of factitious dignity it were power: understand political power, to the exclusion of domestic. So far, then, as depends upon two of the species of matter of which aristocratical superiority is composed, yes. But what remains is the third, composed of the matter of wealth. To this species attach two causes of impossibility: one constituted by the article of quantity, the other by that of time.
First, with reference to quantity. As where physical light is concerned, it is impossible to say where dullness ends and gives place to brightness; so is it to say where poverty or indigence ends and gives place to affluence. So as to time. Suppose the quantity determined, and thereby the section to which each man appertains. For to-day, good: but to-morrow, some men, in any number, by increase given to this quantity, have, from the indigent class, been lifted up into the opulent: others from the affluent been sent down into the indigent class.
Nor yet, with a view to action, to influence on the conduct of the individuals in question, are the above, any of them, the immediately operating efficient causes. Of action the sole efficient cause is interest, if interest be taken in its most enlarged sense: i. e. according to each man's perception of what, at the moment in question, is his most forcibly influencing interest: the interest determined by social sympathy and antipathy, as well as that which is of a purely self-regarding complexion, included.
Thus to the purpose of action, to the aristocratical section belong all such individuals who, by hope of factitious honour, power, or wealth, are dependent on the members of the aristocratical section: so to the democratical belong all those who, their self-regarding interest in any of these shapes notwithstanding, are listed on the democratical side by sympathy with the sufferings of those belonging to that section, or by antipathy towards this or that portion of the aristocratical section: belonging in reality to a side to which they are opposed in appearance.
Of bad rule, or say misrule, the sensible evil effects in all shapes, are reducible to one or other of two denominations—oppression and depredation.
They may even be comprehended under the single name of oppression: the exercise of depredation in so far as committed by the hands of rulers, being but a particular modification of oppression: oppression exercised for this particular purpose: applied to the purpose of obtaining benefit in some shape, at the expense of the persons on whom the oppression is exercised.
But oppression may be exercised in cases where no immediate benefit in any shape, is the object, the attainment of which is the final cause of the oppression exercised: no benefit in any shape, unless the pleasure resulting from the contemplation of the suffering produced by the oppression in the breast of the oppressed person, be regarded as coming under the denomination of benefit.
Though in this way the cause of the evil may, in all its shapes, be comprisable under the one denomination of oppression, there will be a convenience in the employing of the other denomination, namely depredation likewise, and thus considering it as something distinct from oppression at large. For as in the two cases, the evil effects on the part of the sufferers are different, so are the modes of operation on the part of the agents different.
The giving support and strength to the power of depredation is the chief purpose to which the exercise of a power which, in its Edition: current; Page: [47] immediate effect, is purely oppressive, is principally directed.
When, for example, individuals who are suffering under the privations produced by the depredation exercised at their expense, make communication of their sufferings, or of the cause to which they ascribe those sufferings, or of the displeasure with which the authors of those sufferings are regarded by them; and for the making of such communication to this effect, pain, under the name of punishment, or any other, is inflicted on them, without anything in the shape of money, or anything else, from the use of which the rulers would derive pleasure in any shape, being taken from them; here, indeed, oppression is exercised on them, but it cannot be said that in this particular instance depredation is exercised upon them: at the same time, but for the depredation the oppression would not have been exercised.
In every government, which has for its object and effect the pursuit of the happiness of the governors at the expense and by the correspondent sacrifice of the happiness of the governed, oppression at large will be the habitual and unintermitted practice of the government in all its ranks.
The only species of government which has or can have for its object and effect the greatest happiness of the greatest number, is, as has been seen, a democracy: and the only species of democracy which can have place in a community numerous enough to defend itself against aggression at the hands of external adversaries, is a representative democracy.
A democracy, then, has for its characteristic object and effect, the securing its members against oppression and depredation at the hands of those functionaries which it employs for its defence, against oppression and depredation at the hands of foreign adversaries, and against such internal adversaries as are not functionaries.
Every other species of government has necessarily, for its characteristic and primary object and effect, the keeping the people or non-functionaries in a perfectly defenceless state, against the functionaries their rulers; who being, in respect of their power and the use they are disposed and enabled to make of it, the natural adversaries of the people, have for their object the giving facility, certainty, unbounded extent and impunity, to the depredation and oppression exercised on the governed by the governors.
The argumentation, creation, or preservation of felicity, being the all-comprehensive object of desire and end in view, as to human action in every situation, so, necessarily in that of all those by whom rule is exercised, felicity, together with its opposite, infelicity, in their several modifications, are as necessarily the subject matters of its operations. But in their several modifications, these same elements are also, by an equal necessity, rendered the equally necessary and indispensable instruments for the attainment of that end. In no case without the elements of infelicity and felicity, only by pain and pleasure applied to them in a certain manner, can sensitive beings be rendered instrumental in the exclusion of evil, or in the production of good: in the exclusion of pain, or in the production of pleasure.
When, however, they are spoken of, as being employed in the character of instruments, they are spoken of by appellatives, different from those by which they are designated, when spoken of in the character of ends.
Force, intimidation, and remuneration: by one or other of these three denominations may be characterized all those incorporeal instruments of rule, which being indisputable instruments of all rule, cannot therefore but be such with relation even to the best rule.
By force, understand here physical force—that of which the body as contradistinguished from the mind, is the seat. Only by means and through the intervention of this instrument, can those others be brought into action. Only by physical force, (by whatsoever agent applied to them,) can any operation be performed upon objects not endowed with sensation, in a word, upon inanimate things: and in this respect many are the occasions on which this only mode of operating upon things, is not less necessary to the purpose of operating with efficiency upon persons. Only by force, by physical force, can a person who, against the will of the occupant, continues in a house, be removed out of it, if neither intimidation nor remuneration are capable of being applied with effect to the purpose of affording him an inducement, adequate to the purpose of causing him to remove himself.
Force, in so far as considered as being applied to the mind, and applied not without effect, is termed intimidation.
Intimidation is the eventually efficient cause of the matter of evil, considered as applied to the purpose in question. The most prominent and extensive instance, is that in which the matter of evil is applied to this same purpose in the character of matter of punishment: punishment in the event of a man's failing to contribute to the felicity of the person in question, in the manner pointed out to him by the directive rule of law, which the arrangements of government furnish.
Remuneration, is the efficient cause of the matter of good, considered as applied to the purpose in question: good applied in consideration of a man's having contributed, or being engaged, or expected to contribute to the felicity of the person in question, in some manner pointed out, as above, by directive rules, laid down with more or less precision by those arrangements, in the furnishing of which the government is occupied.
Among the imperfections of language, may be reckoned the not furnishing a denomination which shall designate in relation to good, that which is designated by intimidation in relation to evil. Intimidation, is fear exciting: Edition: current; Page: [48] what is wanting is a single word by which hope-exciting may be expressed.
The more particularly the analogy between punishment and reward is brought to view, the more ample is the practically useful instruction that is conveyed. The more clearly it is seen that to reward is to punish, when the dispensing hand in question is the hand of government, and that as to whatsoever is above the least quantity sufficient, remuneration is depredation,—with the less difficulty will men be brought to extend to the matter of reward, whatsoever frugality they are not averse to apply in the case of punishment.
Towards the holding up to view this instructive analogy, something, it is hoped, has been done in the Théorie des Peines et des Récompenses: but, on going back to it, I should not expect to find that as much was done there as might at present be done.*
Intimidation and remuneration are employed, both of them by good rule and by misrule. But, though in this they agree, there is one point in which they not only are different, but opposite: this is the quantity of the matter which they respectively employ. By good rule, it is, as in the one case, so in the other, minimized; it is the least possible: by misrule, it is maximized.
By good rule, intimidation is minimized. Why? Even because threatening to produce evil would be in vain, if with more or less frequency the threat were not executed—the evil were not produced: and even because the fear of evil is itself evil: from the fear of sufferance, actual sufferance is inseparable.
By good rule, allurement, or prospect of remuneration, is also minimized. Why? Because, in government, good is not procured but by means of evil: the matter of good by means of the matter of evil. Indeed, to no small extent the matter of good and the matter of evil are one and the same thing. Witness wealth: witness power. By the receipt of wealth, pleasure—enjoyment is produced: by the loss of it, pain; and so likewise in regard to power.
Between wealth and power, the connexion is most close and intimate; so intimate, indeed, that the disentanglement of them, even in the imagination, is matter of no small difficulty. They are each of them respectively an instrument of production with relation to the other. By wealth, with or even without parting with it, power may be obtained: even in the import of the word power, that of wealth is included: since power, employing for its instrument the matter of remuneration, includes in it, the power of making application of the matter of wealth, and thereby the possession of it. Occasions, however, are not wanting in which, while on the one hand, wealth is conferred, no power over any particular person, or any particular thing, is conferred. Occasions on the other hand are not wanting, in which, while power is conferred, the matter of wealth is not at the same time in any determinate shape conferred. Anything else that comes under the denomination of remuneration, follows or does not follow, according to the use that happens to be made of the power.
Under misrule, waste of the matter of good and evil, in both its forms, takes place of course: the quantity wasted affords a measure, the most exact that can be found of the degree or quantity of the misrule—of the badness of the rule: receivers of the bitter fruits, the adversaries of the misrule; of the sweets, its chief operators and their accomplices.
As to adversaries, misrule has as many as among the individuals subject to it, there are those who, to sensation, add the faculty of thought: proportioned to the degree of sufferance, is the degree of resentment naturally produced. Thus it is, that misrule has for its inseparable concomitant, the thirst of vengeance: and this thirst is essentially insatiable.
As to the sweet fruits, it is under pretence of the demand for them, in the character of instruments of government, that they are collected. That to this destination they are in part applied, is what cannot be avoided on the one part, nor denied on the other; for otherwise, the government, whatever it be, could not be in existence. But to this indispensable portion is added, of course, as large a portion as possible, of which there is neither need nor use: and this needless and superfluous portion, is what in addition to whatsoever is needful, is made the subject of division among the rulers, their instruments, dependents and favourites.
In addition to force, intimidation, and remuneration, which are necessary to all rule, misrule adds corruption and delusion.
The matter or efficient cause, of corruption, is the matter of good, considered as employed in giving effect to sinister interest, and thereby to evil.
By delusion, understand the production of erroneous conceptions, the effect of which is to engage men to concur in the sacrifice of the universal to the sinister interest.
In regard to these instruments of misgovernment, the need there is of them differs more or less according to the form of the government.
Considered in regard to its form—a government is in the hands either of a ruler, or of rulers. If in the hands of a single ruler, it is a pure monarchy.
If in the hands of rulers more than one, it is either an unmixed or a mixed government.
If an unmixed government, it is either an aristocracy or a democracy.
If a mixed government, the mixture may be composed of monarchy and aristocracy alone, of monarchy and democracy alone, of aristocracy and democracy alone, or of monarchy, aristocracy, and democracy—all three.Edition: current; Page: [49]
Of these seven cases, the exemplifications of pure monarchy are most numerous.
The case of pure aristocracy is not exemplified to any considerable extent.
Of the case of pure democracy, the longest established, and as yet the only completely established, exemplification, is that afforded by the cluster of incorporated republics, constituting the Anglo-American United States.
Of the mixture composed of monarchy and aristocracy, an exemplification is now scarcely to be seen anywhere.
Of the mixture composed of monarchy and democracy, an exemplification may be seen in the case of Spain, as also in that of Portugal.
Of the mixture composed of monarchy, aristocracy, and democracy, in howsoever different proportions, exemplifications may be seen in England and in France.
In regard to the use made of the two above-mentioned instruments of misrule, the case of the bipartite mixture composed of monarchy and democracy, and that of the tripartite mixture composed of monarchy, aristocracy, and democracy, are so nearly the same, that what is said of either one, may with very little variation be found applicable to the other.
As, in so far as with monarchy, a portion of either of the two other simple forms of government has place, the power of the monarch finds a limit in the power or powers thus conjoined with it: the will of the monarch has a source of resistance and obstruction in those other wills. The sensation thus produced in his breast, being of an unpleasant nature, an object of his constant endeavour will of course be, the removal of it, by the lessening of the obstructing power—by lessening the resistance opposed to his will by the obstructing wills.
Wherever such a monarchy has place, the disposal of official situations, is to an extent more or less considerable, in the hands of the monarch: and to these same situations (all or most of them, objects of general desire, above-mentioned) is attached, money and power, with or without factitious honour and dignity. This power is called the power of patronage. It is the interest and desire of the monarch to increase the number of these situations as much as possible. It is the duty of that body to which belongs the portion of power co-ordinate with that of the monarch, with reference to the interests of the community at large, to diminish the number of those situations.
In so far as between the monarch on the one hand, and the majority of representatives as they are called, on the other, an agreement can be come to, and is accordingly come to, respecting the proportions in which the patronage shall be shared between the parties, the sacrifice of the universal interest, takes place of course.
The arrangements which afford a promise of operating as securities to the fabric of government, against corruption, and corruptive influence,—against that dry rot, to which all government stands exposed, by the nature of the materials of which it must everywhere be composed, may, it is believed, be comprehended all of them, under one or other of the heads following, viz.:—
1. Minimizing the quantity of power in the hands of the functionaries.
2. Minimizing the quantity of the matter of wealth at the disposal of functionaries.
3. Minimizing the quantity of the matter of wealth, employed as pay of functionaries.
4. Applying legal counterforces to the power of functionaries.
5. Applying moral counterforces to the power of functionaries.
6. Exclusion of factitious honour, or say factitious dignity.
7. Exclusion of all other factitious instruments of delusive influence.
As in the case of every other act, so in the case of every act of government: add the power to the will, the act takes place: take away either, the act does not take place.
The problem is,—throughout the whole field of legislation, how to prevent the sinister sacrifice: leaving at the same time unimpaired, both the will and the power to perform whatsoever acts may be in the highest degree conducive to the only right and proper end of government,
In the case of a public functionary, the will is on each occasion under the pressure of two opposite and conflicting interests: his fractional share in the universal interest, and his own particular and personal interest. The former is a fraction, and everywhere a small one,—a partnership interest in a firm in which the partners are counted by millions: the latter, is an integer: and the forces with which they act, are proportional. Still, be the fraction ever so small, action will be determined by it, if the integer be either taken out of the scales, or overbalanced.
Whatsoever arrangement has for its object the prevention of the sinister sacrifice, must apply itself either to the will or the power: but the same arrangement may apply itself to both.
Of the two necessarily conjunct faculties, take in hand first the power: leaving the power to do good, take away, or if that cannot be done minimize, the power to do evil.
Into the composition of all power, enter three elements: intensity, extent, duration. Its intensity has for its measure the magnitude of the effect produced by the exercise of it, within the extent assumed by it: the extent, has for its measure, in so far as it has persons for its subjects, the number of those same persons; in so far as it has things, their number and respective values: as to duration, it has in this case, the same measure as in all other cases.
In the highest rank, to the intensity of power, it will be seen, no limits can easily, if at all, be assigned, without taking away along with Edition: current; Page: [50] the power to do evil, the power to do good, and thus leaving evil unopposed: to the extent still less: to the duration, with the utmost ease, as well as perfect safety: witness in a word the United States.
In any rank, but the highest, limits may be set to it, in any of its elements or dimensions, without any the slightest difficulty.
Power, considered in respect of the instruments by which it operates on the human mind, and exercises it, is either power operating by punishment, whence fear of evil, or power operating by reward, whence hope of good. Of reward or say remuneration, the main shape is the matter of wealth: or for shortness, (putting, as is not unusual, the part for the whole,) in one word, money: by which must in this case be understood not only money, but money's worth,—everything that is to be had for money. In so far as punishment is the instrument employed and trusted to, the word power is retained and employed; in so far as reward is the instrument employed and trusted to, the word money or some equivalent of it, is most commonly employed. And note, that by being taken away, the matter of punishment, may be made matter of reward, witness pardons: as likewise, by being taken away, the matter of reward may be made matter of punishment: witness fines.
When public money is placed at the disposal of a public functionary, the purpose for which it is so placed may be that of its passing out of his hands in exchange for something designed to be employed in the public service; or that of its being applied to his own use, in retribution for the services, whatsoever they may be, which he is regarded as rendering, or about to render, to the public.
So much for power taken by itself: for power, and the minimization of it, considered as a means of prevention applicable to the abuse of it. Now as to the other faculty, the will. By the force of that particular interest to the action of which every human breast stands exposed, every functionary is, at every moment prompted as above, to make by himself, or to concur in making, the sinister sacrifice. If this sinister force can by any means be prevented from becoming in that way effective, it must be by the operation of some counterforce, in addition to that opposed by his share in the universal interest: self-preference or sinister force the temptation, counterforce the sanction, antagonizing with one another. As to sanctions, three of them, there has been frequent occasion to hold up to view elsewhere: the political, including the legal, the popular or say the moral, and the superhuman, or say the religious.
For a counterforce to the native indigenous sinister interest, first as to the political sanction, including the legal. The force of this sanction is, the whole of it, at the disposal of the rulers: therefore in the very nature of the case, it is incapable it may be said of being opposed to them: if for a moment it were so, the next moment they would rid themselves of it. True. But though two rulers taken singly cannot be made punishable,—legally punishable at the same time and for the same cause, each of them by the will of the other—yet arrangements in considerable variety, are by no means wanting, by which opposition may, even under an absolute monarchy, be made for a time at least, to the will of the rulers, even of the supreme ruler or rulers. For example, in a monarchy, were it only to satisfy those whom it may concern that such as is expressed in a certain document, is the will of the monarch, the countersign, the name for example of some official servant of his is regarded as necessary,—this servant so long as he continues in such his office, has a negative upon that branch of his master's power, and possesses in conjunction with him, a share in it.
So again in an absolute monarchy, suppose two official servants in the service of the same monarch, in the same office, or in different offices, and one of them having committed a misdeed, the other takes measures for punishing him: the misdoer being at the same time a favourite with the monarch. To the monarch were he so disposed, and determined to exercise it, the power of saving the misdoer from all punishment, and from all prosecution, cannot be wanting. But this power, for some reason or other, it may happen to him, not to be disposed to exercise: here, then, may be seen another instance of a counterforce even in an absolute monarchy, opposing itself to the will of the sovereign: a counterforce which though by adequate exertion it might always be in his power, yet for this or that cause, on this or that occasion, it is not his will to overpower, and reduce to inefficiency.
Thus have two instances of such counterforces been brought to view: both of them capable of having place even under the strongest of all governments—an absolute monarchy. But in like manner as these two may have existence, and actually have existence, so in any number may other such cases have existence. In the political machine, obstacles of this sort, have the effect that friction has in a corporeal machine.
Thus much may suffice for such counterforces belonging to the political sanction, as are capable of having existence, and not altogether without efficiency, even under and against the supreme power in a monarchy the most absolute.
Now as to the force of the popular or say the moral sanction, considered in respect of its capacity of operating in relation to the will of the possessor or possessors of the supreme power in the character of a counterforce. What for the present may suffice for bringing this moral force, to view, is the phrase public opinion: an object, the conceptions commonly suggested by which, though not as clear as could be wished, cannot be to any eye an altogether Edition: current; Page: [51] new one. In the opinion thus denominated stand included all those by whose obedience, the power of the monarch be he who he may, or of the rulers, be they who they may, is constituted. Let this opinion take a certain turn, the habit of obedience ceases on the one part, and with it, all power on the other. Accordingly in every government but a representative democracy, the idea of this sanction (and of the counterforce which it opposes) is, of all ideas that are capable of presenting themselves to a ruling mind, the most disagreeable, the most hateful and afflictive. Between these two sanctions, in every such government a war has place, a war which, until either the form of the government be made to give way to the democratical, or the people reduced to the condition of beasts, and the force of this sanction thus reduced to nothing, can never cease.
As in a constitution which has for its object the greatest happiness of the one, or the few, the main object will necessarily be to minimize this counterforce, or even to annihilate it, so in a constitution which has for its object the greatest happiness of all, the great object will be to maximize it. The cause that presents itself as being in the highest degree conducive and contributory to this purpose will here come to be delineated in its place: and in the reception given to whatsoever shall promise to be in the highest degree contributory to this effect, may be seen, the most instructive test that imagination can frame of appropriate moral aptitude, on the part of rulers.
Lastly comes the superhuman or say religious sanction. But of this it will be seen, that to any such purpose as that of being employed in the character of a counterforce to the power of those, in whose hands is the force of the political including the legal sanction, it is essentially inapplicable. To the possessors of the supreme power, be they who they may, instead of being a counterforce, it will be an instrument in their hands: giving facility instead of applying restriction to misrule.
Is not the force of the religious sanction capable of being employed with useful effect, in the character of a counterforce to the possessors of the supreme operative power?
Assuredly not. The question here is—what shall be, what can be, reasonably expected to be done, by the possessors of the supreme operative power, in the way of applying a bridle to their own power? Only under the fear of what may otherwise happen to them, from the displeasure of the people, can they be reasonably expected to do anything to the intent of its contributing to this end. Under that apprehension it is not impossible, for it is not unexampled, that institutions may be established, operating with considerable force towards the production of this effect. But as to the force of the religious sanction, in no political state has the supreme operative power, ever made this application of it: in no political state is it at all probable, that by the supreme operative, any application should ever be made of it, to any other or better purpose, than that of an augmentation of its own force, instead of a diminution of it: in a word, the converting it, into an instrument of support to misrule, instead of an instrument of restraint upon misrule. A part of the people are separated from the rest: a pretence is set up of their holding with the Almighty Power, a sort of intercourse, which no other part of the people hold with it. Of this pretended intercourse, no proof has ever been given: the assertion is therefore plainly groundless. Yet upon no better ground than this unsupported assertion, do they take upon them to predict misery beyond conception, and without end, to whosoever shall presume to deviate in his conduct from the path whch they chalk out. This path, is the path of unreserved obedience to the rulers with whom they enter into a confederacy. This confederacy, for the purpose of enabling the contracting parties the more effectually to make the more extensive sacrifice of the greatest happiness of the greatest number, to their own particular and sinister interest, is called the alliance between state and church, or, in the order in which they are preferably mentioned, between church and state. Thus delusion lends its aid to oppression, and oppression extorts money to pay for the assistance of imposture.
As to moral and legal responsibility, the counterforces thus distinguished, require, in the first place, a joint consideration.
By moral responsibility, understand here the result of subjection, effective subjection—to the power of the moral sanction, as applied by the public-opinion tribunal.
By legal responsibility, understand effective subjection to the power of the political, including the legal sanction, as applied by the several legal judicatories that have place under the government in question.
To the word responsibility, the import thus attached, is common to all languages which have sprung out of, or derived supplies from, a Latin stock. In English, however, attached to this same word, is another import which requires to be distinguished from it. A person is said to be a responsible person, not in virtue of his actual and effectual subjection to either tribunal, (and in particular, the legal,) but in virtue of his being in such a situation, principally in respect of his pecuniary circumstances, that if it were the desire of government, that by means of coercion he should be made to do, or suffer so and so, he would accordingly be made to do so and so: namely by reason of his being in possession of benefits, either in money or power, or both, on which it would be in the power of government at large, and the judicial branch of it, in particular, to take hold, supposing it disposed to do so.
The distinction is a real and an important Edition: current; Page: [52] one. In England, the situation of king, by the avowed state of the law, is placed above the field of legal responsibility, to the purpose of exposure to punishment. He cannot be made to suffer, nor, consequently, to do anything that it does not please him to do, or suffer.
In the other sense, however, he is in an abundant degree responsible: he has money enough for example, by which, could it be got at without his name, he could be brought to do anything which, by any one, it was desired he should be seen doing. It is by the plenitude of his responsibility in this particular sense, that he is eased of all responsibility in the general sense: so material it is that the two senses should be mutually distinguished.
In general, from the top of the scale to the bottom, the more abundantly responsible a man is, in respect of sufficiency, the less responsible is he in respect of effectual exposure to punishment.
Under an absolute monarch, no responsibility can, in the instance of any functionary under him, have place, unless such should be the master's pleasure: and it will not be the master's pleasure, unless he be an object of his personal displeasure, whatsoever misdeeds he may have committed, to the detriment of the universal interest.
So far as this effective responsibility has place, so far, it is evident, the power of the legal sanction cannot be presented in the character of a counterforce to the power of government, in the hands of a supreme ruler, or set of supreme rulers.
But a case not altogether incapable of having place is,—at the charge of one set of functionaries, his subordinates and instruments, say in the department of finance, he suffers punishment to be administered by another set, say those belonging to the judicial department: here, then, the force of one of those sets acts as a counterforce to another set, his equally obsequious instruments.
Thus much as to an absolute monarchy. In the case of a limited monarchy, the result is not, in this respect, materially different. In this case likewise, the power of giving impunity to any one, and every one, is commonly given by law: such is the general rule: and if in words and show there be any exceptions, the extent given to them is extremely narrow, and, even to that extent, they are without substance and effect. As to this point, between an absolute and a limited monarchy, the mean difference consists in this: the impunity which, in a direct and open way, might by law be alike conferred in both monarchies, is, in an absolute monarchy, accordingly conferred in a direct and open way; in a limited monarchy in some indirect and concealed way, in preference. In a limited monarchy, the acts of the monarch and his instruments are necessarily, in one way or other, more exposed to observation than in an absolute monarchy. Suppose then a case in which the grant of impunity would, in the eyes of the public, be in a flagrant degree repugnant to the received notions of justice, there may be a convenience in employing some indirect and covert method, rather than a direct and open one, for the production of the effect. A party of soldiers, for example, are they set on to slaughter a company of malcontents, whose abstinence from all violation of the law, has rendered it impracticable to apply punishment by the hand of a judge? The monarch, if he pleased, might first give the order to the slaughterers, and then pardon them. Under the English constitution, such is its excellence, the king might thus kill his subjects, and has done so, and yet no law be violated.
So much as to the case of a monarchy.
In the case of a representative democracy, at the charge of the members of the supreme operative power without exception, legal responsibility may have place without difficulty: legal responsibility, not in name only, but in effect, namely to the purpose of exposure to punishment. Even during their continuance in office, the minority remain, in the very nature of the case, in a state of legal responsibility, as towards and under the majority: and from and after the expiration of their authority, being on a footing no other than that of the other members of the community, they remain, each and every of them, responsible in the legal sense for whatsoever they may have done—whether in that situation or any other.
Look now to moral responsibility: responsibility to the purpose of eventual exposure to the punitive power of the public-opinion tribunal: and in particular, the power of the democratical section of that same invisible, yet not the less effectively operative, tribunal.
To not altogether ineffective responsibility in this shape, not only in a representative democracy, but even in an absolute monarchy, the possessors of the supreme operative power are capable of standing exposed. In fact in this shape, in some, even the most completely absolute monarchies, the monarch is always to a certain degree responsible, and feels himself so to be: though in some monarchies, at some times, such has been the feebleness of this responsibility, in the character of a counterforce to the powers of government in the highest grade, that the effect of it in respect of a cause of mitigation to the evils of misrule, namely of depredation and oppression, has hardly been perceptible.
The less the quantity of counterforce a public functionary feels opposed to his particular interest in other shapes, the greater the need there is of his finding it opposed to him in this shape. An absolute monarchy is therefore the sort of government in which the need of it is most pressing, and in which accordingly, if the end of the government was the greatest happiness of the greatest number, it would be established with the greatest promptitude, and maintained with the most Edition: current; Page: [53] anxious care. But as in all monarchies the end in view is the happiness of the one with or without a small number of sharers in the operative power, the repression of this same prime instrument of security to good government and good morals, has been the object of the most anxious and uninterrupted care.
For bringing into action the force of the public-opinion tribunal—for bringing it to bear upon any pernicious act, by whomsoever performed, whether by a public functionary, or by a non-functionary, two distinguishable sorts of matter are contributory: namely evidentiary matter, and commentative matter or matter of comment. By evidentiary matter, understand matter, the effect or tendency of which is, to bring or hold up to view the individual act in question, in conjunction with all the several circumstances, on which the nature of its operation on the happiness of the community depends. By matter of comment, understand all such discourse the effect or tendency of which is, to afford indication true or false, correct or erroneous, concerning the operation of such act on the happiness of the community, in such sort as to be in this or that way contributory or detrimental to it.
All such salutary matter in both these forms, every functionary, in proportion to the power which, from the nature of his situation, he has of pursuing his own particular interest, at the expense of the universal interest, has an interest in the suppression of: an interest, the strength of which is in proportion to the profit capable of being derived by him, from such sinister acts. Every functionary in proportion to his power: and accordingly in a monarchy, whether absolute or limited, the monarch: in a monarchy, limited by an aristocracy, the aristocracy.
By every act a functionary exercises for the purpose of destroying or weakening the power of this counterforce, in order to prevent or restrain the publication of such tutelary discourse, he manifests himself an enemy thus engaged in a course of actual hostility against the happiness of the community.
In the sinister interest by which they are engaged in the endeavour to effect such suppression, functionaries engaged in giving execution and effect to the acts of a bad government, and functionaries engaged in misdeeds for their own benefit, in disobedience to the good acts of a good government, are naturally joined by individuals concerned, or meaning to be concerned in such pernicious acts, to the repression of which, the power of the legal sanction is not applicable.
Of every such indication, and of every such comment, the tendency is defamation: defamation with reference to the party to whom the alleged pernicious act, whatsoever it be, is thereby imputed. To oppose defamation as such, to oppose without exception or discrimination every act to which the term defamation may with propriety be applied, is to act as an accomplice to all crimes—as an instrument of all mischief as above. Every such act is therefore a virtual confession of such complicity: of such hostility to the happiness of the greatest number.
To profess to be a supporter, either of good government or of good morals, and at the same time to profess to be desirous of seeing defamation suppressed or even restricted, in a case in which the imputation conveyed by it, is true, is little less than a contradiction in terms: it is to desire that the same thing shall, and shall not have place, at the same time.
One case there is and but one, in which the effect of defamation, supposing the misdeed charged by it, really committed, is not to increase, but to reduce the quantity of happiness in the community. This is, where the mischief produced, is produced—not by the act itself, but by the disclosure of it. In this case are comprehended all those, in which for want of sufficient maturity in the public judgment, the popular antipathy has been drawn upon this or that act, the nature of which is not, upon the balance, of a pernicious nature.
Examples of this case are:—
1. In a community in which the public mind is infected with the disease of intolerance in matters of religion, indication of an act evidencing the entertaining an opinion contrary to that which is established or predominant.
2. So, in the field of taste. Eccentricity of any venereal appetite, the sexual for example, by which no pain in any assignable shape, is produced anywhere. Here by the supposition, by the act itself, no pain, no sensible evil is produced: but by the disclosure of it, evil to a most deplorable amount may be produced: by the antipathy, though by the supposition groundless,—by the antipathy called forth by it, a whole life may be filled with misery. The real enemy to the happiness of the community, is not he by whom this obnoxious act has been exercised, but he by whom the indication of it has been afforded. The suffering being greater, the mischief is greater, in the case where the act has been, than in the case where the act has not been really exercised. For he in whose instance, the imputation has been groundless, has for his consolation, that which is wanting to the other.
3. Indication of a breach of a marriage contract, on either side, more particularly the female. Suppose the commission of it unknown, no pain is produced by it anywhere. What then, when committed, ought it to remain exempt from punishment? Oh, no! Why not? Even for this cause: namely that without the commission, the divulgation could not have place: and that by commission, divulgation is always rendered but too probable.
Those who cry out against what they call the licentiousness of the press, as if it were so Edition: current; Page: [54] much uncompensated evil, for which complete suppression would be an appropriate and innoxious cure, might with much more reason cry out against all punishment without distinction, and in particular against all punishment at the hands of the legal sanction, and the tribunals by which the force of that sanction is applied: for, in no other form, at once so gentle and so efficient, and in particular, in no form of legal punishment, could punishment be employed in the repression of anything, that has ever been characterized by the names of crime or vice.
Punishment, as applied by the legal tribunals, attaches to such evil acts alone, the mischief of which has place, as well in a shape sufficiently determinate, as in a quantity sufficiently great, to warrant the application of evil, in the shape and in the quantity to which the denomination of punishment is in common use. Punishment as applied by the public-opinion tribunal, applied as it is in effect, without the name, attaches itself to mischief in all shapes, in which the hand of man can without special and sufficient justification, be instrumental in the production of it.
Applied by the legal tribunal, punishment is not only thus narrow, in its applicability, and thence in its use; but continually exposed to the danger of running into excess: evils from which, the punishment which the public-opinion tribunal makes application of, is altogether exempt and free.
The efficiency of the popular or moral sanction, with its public-opinion tribunal, cannot be strengthened, but the efficiency of the law, in so far as its force is employed in augmentation of the happiness of the people, is also strengthened. In so far as a misdeed, which by reason of its detrimental effect on happiness, is vicious, and thereby exposes the agent to punishment, at the hands of the public-opinion tribunal, is moreover criminal,—an act of delinquency against the law, exposing the agent to punishment, at the hands of the law,—every channel through which defamation as above, may be divulgated, is a channel through which, in so far as the defamation takes this turn, strength and efficiency are given to the law.
Through these channels, men who would otherwise remain helpless, receive help, and abatement of their sufferings: injuries and sufferings which, would otherwise swell to a boundless magnitude, and be rendered altogether remediless, are met by complaint, and kept within bounds: through these channels men who, by their own indigence and the rapacity of lawyers, are deprived of all help at the hands of the legal sanction, with its judicatories, find a limit and a mitigation to their sufferings.
For, suppose the act in question, to be of the number of those, to which punishment stands attached, as well at the hands of the legal sanction, as at the hands of the popular or moral sanction: this being the case, to give intimation of it, to the members of the community at large in their capacity of members of the public-opinion tribunal, is to give indication, by the light of which, not only witnesses, but prosecutors at the bar of the competent legal tribunal, may be brought into action, and the further investigation of whatever relevant facts would otherwise remain in darkness, produced: that which to the public-opinion tribunal is evidence to the purpose of conviction in an immediate way, being to the legal tribunal, evidence to the purpose of investigation for the obtainment of ulterior evidence, such as suffices in the first place, for a ground to accusation; and in the next place, for the obtainment of such evidence as shall suffice for conviction and punishment.
Against all such misdeeds as are produced or protected by supreme rulers, the legal sanction, with the corresponding judicatories refuse of course all redress: against all such misdeeds, whatever redress, if any, is afforded, it is by the popular or moral sanction, with its public-opinion tribunal, that it must be afforded.
Of the channels through which, information in both its shapes, as above, must find its way to the public eye, and the public ear, beyond all comparison, the most ample and efficient are those, in the designation of which, the collective term, the press, is commonly employed: and of those again, the most ample and efficient are those, for the designation of which the collective term, the periodical press, is employed. Every act by which the net mass of benefit, derivable through these channels, is lessened or endeavoured to be lessened, is of the number of those by which the actor is rendered as above, an enemy to all mankind.
For lessening the net amount of this benefit, the nature of the case affords two expedients or courses of policy. The one consists in the blocking up of the channels, and thereby stopping, in the whole or in part, the current of information that would otherwise make its way through them to the eyes and ears of the public—of the members of the community taken in the aggregate. The other consists in rendering, in a greater or less degree corrupt and delusive, the stock of information, which is so received: the one system may be styled the blockading or obstructive system, the other the corruptive. The obstructive operates by the simple subtraction of such information as being correct, is at the same time usefully instructive. The corruptive operates by the addition of a mass of information in itself false, and designed to be deceptious. By subtraction, deception may also be produced as well as by corruption. To this purpose, what may happen to be sufficient is, to render partial the stock which is suffered to pass on: partial, that is to say, in the bad sense of the word, being the same in which it is used, when subservient Edition: current; Page: [55] to injustice; that which is regarded as operating against the side meant to be favoured by the deceit being stopped; while that which is regarded as operating in favour of it, is suffered to pass on.
For operating on the obstructive plan, the nature of the case affords two modes of restriction,—the licensing system, and the prosecuting system.
Licensing is an operation, of which prohibition, and that a universally extensive one, forms the principal ingredient. In the first place, comes prohibition which applies to everything: in the next place, comes permission, given to any such persons, or any such things, as it is intended to exempt from the prohibition.
In comparison with the licensing system, the prosecuting system is in an eminent degree inefficient. It cannot be employed, except in so far as the very sort of thing, which it is the endeavour of it, to cause not to be done, has been actually done. Where it does operate, its mode of operation is comparatively weak, and its effect uncertain. In the licensing system is included the employing, for the stoppage of the obnoxious matter, physical force: seizing, for example, the whole impression of a work, and either keeping or destroying it. It operates not only thus upon the body, but also upon the mind; viz. in the way of intimidation, by fear of loss, if similar works are prepared for publication in future. While it keeps from observation, the mischief which it produces, prosecution proclaims that same mischief. The punishment which, in the shape of loss, as above, is one of its means of action, is much more effective, than any which, being applied under the name of punishment, cannot be applied without prosecution, for a preliminary to it: not to speak of the expense, the uncertainty which, in the case of prosecution, always hangs upon the result, together with the delay and vexation, which even on the prosecutor's side, stand inseparably attached to prosecution, is saved. Not only too, is the punishment so much more efficacious; but it is, moreover, kept concealed from observation; and thus is not only more efficacious than punishment under the name of punishment, but at the same time less odious. Though it affords just ground for greater odium, yet it attracts less.
By the prosecuting system, punishment is applied as above, under the name of punishment, having, or seeking to have, the effect of prohibition. If, in England, it be in the way of common law that the punishment is applied, the prohibition is fictitious: as to the act for which the punishment is sought to be inflicted, there has been none. As to future contingent similar ones, each man is left to imagine for himself a prohibition, from the case in which he sees the punishment applied.
If it be in the way of real or statute law that the punishment is applied, the eventual denunciation made of it, comes before it—the subject of the prohibition has been described.
Prohibition is either complete, as, under the name of prohibition, it is of course; or incomplete, as it is, where in so far as, to the form of prohibition, that of taxation is substituted. Under every application of the taxing system, in so far as applied to articles for consumption or use, an application of the licensing system is contained. Pay the tax, you have a license to use the article; omit paying the tax, the license is refused to you. But under the licensing system, is in this case concealed the corruptive system. By the effect of the tax, such information as a man is able and willing to purchase, and obtain by paying the tax, is suffered to pass on, and reach him: such as he is either not able, or not adequately willing thus to purchase, is stopped and prevented from reaching him. Note the consequence, where there is a desire to serve the comparatively rich at the expense of the comparatively poor. That which the poor man has need of, to enable him to form a right judgment and pursue a line of conduct beneficial to his interest, is stopped from reaching him: while his comparatively rich antagonist receives the matter on both sides. In the contest between rich and poor, the means of attack are thus suffered to find their way to the rich: while from the poor, the means of defence are kept back, and rendered inaccessible.
The indirect mode of corruption, by garbling, is not altogether so mischievous as either of the two others. Of the matters thus kept from publication, no such individual selection can be made, as in the other case. Still, however, separation in no small degree mischievous can be made, and is made.
As it is only by the power of government, that this corruption and this obstruction can be carried into effect, it is manifestly for the purpose of misrule, for the purpose of giving extension and perpetuity to misrule, and thereby to human misery in all its shapes, that war upon the happiness of mankind, in both these shapes is carried on.
But information to any one nation, is information to every other: thus to add to misrule and misery, in one nation, by obstructing the press, is to endeavour to add to misrule and misery in all. It is still more extensively and effectively an act of hostility against all nations than piracy is. For the mischief and terror produced by a pirate is confined to the seas in which his acts of piracy are exercised: it is confined also within the space of time, never a very long one, during which those acts continue to be exercised. But the mischief produced by the suppression of information on the side of the victims of misrule, while false and delusive information in support of misrule is let through, may spread itself over all nations, and continue in all times.
Among the consequences of restrictions imposed in the ordinary form on the press, one is the efficiency thus given to false reports in their most mischievous shapes: false and mischievous Edition: current; Page: [56] reports as such, whosoever may be the parties on whom the evil produced by them falls.
Take, in the first place, the situation of the ruling functionaries, and in particular those of the highest rank, in the scale of subordination. Defamation in the written shape, it is possible to keep suppressed. Defamation to the same effect, in an oral shape, it is not possible to keep suppressed. You may keep a watch upon all presses: you cannot keep a watch upon all tongues. When it is in a printed shape, it is in a determinate shape: and being in a determinate, and that an enduring shape, any one who feels disposed to make answer to it, knows what it is he answers, and where to find it. In whatever state it first makes its appearance, in that state it remains: it cannot by the author, or by the adopter, be altered from shape to shape, in a manner contrary to truth and justice, just as occasion calls. It may be met and opposed in whatsoever manner is best adapted to the nature of it. Is it in any way false, it may be opposed by simple denial, or by the statement of the opposite truth: is it not only false but improbable, the arguments demonstrative of the improbability may be opposed to it: is it mischievous, the mischievousness of it may be laid open to view, and shame proportioned to the evil, be poured down upon the head of the author and his accomplices in proportion as they are discovered.
Such are the facilities which present themselves for the encountering of it, when the shape in which it presents itself is thus determinate.
Now, suppose it merely in the oral shape. Being refutation proof, being proof against exposure, the probability is, that even in its first shape it is false. It is either a complete fabrication, in the whole texture of it, or if there be a groundwork of truth belonging to it, an embroidery of falsehood is interwoven in it, such as suits the particular purpose, whatever it be. But this first, howsoever mischievous and injurious, is naturally its least mischievous and least injurious shape: and even in this shape, it is not capable of being encountered. From the first mouth it passes on to another, and in the second mouth further mischievousness, further injuriousness, with or even without consciousness and intentionality, are naturally added. Thus it travels on, from mouth to mouth, and as it rolls on, it adds to its mischievousness and injuriousness at every stage: to the number of these stages, there is no limit: and at no one of them, can it ever be encountered.
A circumstance which has a natural tendency to provoke falsehood, and through falsehood, injury to the prejudice of the government by which the restriction is imposed, is the resentment which the restriction itself calls forth: a resentment, than which nothing can in any case be better grounded or more just. Where oppression is exercised, and there is no other remedy,—no other defence against it is afforded by the nature of the case, falsehood if not justifiable, is at any rate comparatively excusable. Of every such restriction, the effect and object is to secure efficiency and impunity to oppression and depredation in every shape, the worst imaginable not excepted. From no course that can be taken by the endeavour to put an end to such an instrument of oppression, can any evil be produced equal to the evil produced by the application of the instrument itself, if the application be effective.
To the encountering of such endeavours by appropriate falsehoods, in the way of retaliation, the grand objection is, that in general it will be needless: for, seldom are they employed but for the purpose of concealing enormities, the correct statement of which would suffice for the imfamizing of the oppressive rulers, without the addition of anything that is not true: and besides, in proportion as falsehood comes to be discovered, the discovery casts reproach upon the heads of those concerned in the propagation of it, and discredit upon such reproachful imputations as are true.
Be this as it may, thus much is clear, that where any such restriction is employed, whether all the injurious allegations made against the rulers are true or not, no suspicions that can be entertained of them can be ill-grounded: for, supposing the intentions of a ruler the worst imaginable, such is the course which he would not fail to take for the carrying of them into effect: while on the other hand, suppose his conduct free from all just imputation of misrule, no need would he have of any such screen: the just odium which the employing of it could not fail to draw upon him, would be so much net evil drawn down upon him by himself.
By no number of determinate acts of tyranny, could a more proper and reasonable cause for resistance and insurrection be afforded, (supposing success in a sufficient degree probable,) than by the establishment of this restriction: for in the use of this instrument, the intention of exercising tyranny in its worst shape is included: the intention, coupled with a probability always but too great, of its being carried into effect.
In proportion to the amount of the burthen of the restriction, does it exclude from the exercise of the functions of the public-opinion tribunal, a number more or less considerable of its members: it excludes from the benefit of appropriate information, those in whose instance such information is most needed.
There are two correspondent and apposite modes of laying claim to the exercise of the blockading power, on the ground of alleged or assumed superiority in intellectual aptitude: the one consists in magnifying the alleged aptitude of the governors; the other in parvifying the aptitude of the governed. Each of them is employed as occasion serves. The parvifying mode may be used in all situations, as it may happen: it gives no offence to Edition: current; Page: [57] the reader or hearer, if he be of the ruling, or otherwise, influential class: in a word, unless, in his own conception, he belongs to that inferior class at the expense of which the pretension is set up. The magnifying mode, being in fact, the self-magnifying mode, cannot, without giving offence, be employed in any other situation, than those in which custom has thrown its veil over arrogance, impudence, and insolence: namely, the situation of those, by whom the power of surmounting contradiction by punishment is possessed and exercised.
It is curious to see with what complacency, in certain authoritative discourses, the possession of the maximum of official aptitude in all its branches, and in particular, intellectual aptitude, in the degree indicated by the romantic appellation, wisdom, is predicated of themselves, by the very scum of the population: for be it pot or be it kingdom, that which occupies the top of it, is it not the scum? by a set of men, in comparison of whom, the most vicious of those whom they consign to death, or punishment which ends not but with life, are virtuous: by a body, composed of the principals and instruments of misrule, depredation, and oppression, all upon the largest scale: of corruptors and corrupted: of selfish and empty-headed lawyers:—led by a few venal utterers of vague generalities and common-place fallacies: men, whose minds being debilitated by that worse than useless education, which under a system of corrupt and corruptive establishments, overgrown opulence bestows, know not an unapt argument from an apt one, a relevant argument from an irrelevant one, possessing neither the inclination nor the ability to discern the difference.
Whichsoever of the two courses be taken, they lead to the same result: absolute power on the part of those on whose behalf they are taken: absolute subjection, with no option, other than that between silence and obsequiousness, on the part of those at whose expense they are taken. "What by depravity, what by folly, you are incapacitated not only from giving direction to your own conduct, but from having any part in the choosing of those, by whom direction to it shall be given. Such being your deplorable state, it belongs to us, and to us alone, to give direction to your conduct in this line, as in every other; to determine what you may say, and what you shall not say: for, so sure as you are suffered to say anything to our prejudice, to start so much as a doubt on our probity or our wisdom, so sure will you do injury, irremediable injury to yourselves, and to one another. The points by which your happiness now and for ever, is most deeply affected, are those which belong to religion and politics: on these, it is therefore, in a more particular manner, our duty to prevent your looking in any other point of view, than such as we prescribe. It is your first of duties to hold yourselves deprived of all liberty on these points: it is our first of duties, so to hold you deprived of it."
Thus it is, that with benevolence in their mouths, all by whom any such language is employed, declare themselves in effect, enemies of mankind. If the benevolence be but in their mouths, it is bad: if it be in their hearts, it is worse, still worse. If so it be, that it is only by some temporal and temporary interest of his own, that a man is induced thus to persecute and torment others, no sooner is that interest overcome by an opposite interest, than the persecution ceases: by force, by intimidation, by superior benefit from a contrary course, he may be led to give it up at any time. But if it really be, either by fear of infinitely intense and lasting torment, or hope of infinitely intense and lasting happiness, that a man stands engaged thus to do his utmost for the tormenting of others, in the only state of things which falls under our experience or observation, his mischievousness in the first-mentioned character is small in comparison with his mischievousness in this. If in all other points, his conduct be even a pattern, not only of beneficence, but of benevolence, he is rendered by it but the more mischievous: the more so, the more extensive his beneficence; for the utmost good a man can do by beneficence in other shapes, can never approach to the evil it may happen to him to do by maleficence in this. If, therefore, there be a sort of man whom interest and moral duty, should lead all others to shun contact with, as they would shun contact with a man infected with the plague, it should be the man, who, under a sincere persuasion of religious duty on his part, seeks to prevent others from the defence or utterance of opinions, be they what they may, on any subject belonging to the field of religion, or the field of government.
In the case of private defamation, the mischief stares every one in the face. But along with it is mixed much good, and of this good, men do not in general seem sensible.
To take the strongest case,—the case in which if in any, the evil would appear pure,—the case where the misconduct imputed is, by the imputer, known not to have had place: the imputation, in a word, known to have been knowingly and wilfully false. Here the effects of the first order, the uneasiness experienced by the individual to whom the misconduct is imputed, are evil: though less evil, than where the imputation is true, because a man suffers less from the imputation when groundless, than when true. The effects of the second order, the apprehension excited in other persons at large,—the apprehension of being made sufferers by similar attacks from the same or other sources, are also evil. But by the contemplation of the evil suffered in these two ways by groundless imputations, the attention of men is directed to, and the more firmly fixed upon, the like suffering as being Edition: current; Page: [58] more or less likely to be produced by true imputations: and in this way, accordingly, addition is made to the fear of punishment at the hands of the public-opinion tribunal. What is too obvious and too certain, to pass unnoticed is, that, the inducement being equal in both cases, a defamer, if he knew of an article of misconduct of which his intended victim had been really guilty, proofs of his guilt more or less satisfactory, being in existence, would never think of preferring an ungrounded accusation in any shape to that same well grounded one.
Not that currency knowingly allowed to false and unjust imputation, is in any degree, as such, conducive and necessary to the repression of the misconduct that would have had place, had the imputation been well grounded.
Not that the antipathy against the inventors and common circulators of such false imputations, is not well founded: not that they ought not to be subjected to legal punishment, in so far as sufficient proof can be obtained.
All that is meant is, that all imputations grounded and ungrounded together, ought not to be suppressed without distinction, for the more effectual suppression of ungrounded ones. The public-opinion tribunal with its numerous useful effects, ought not to be suppressed, for the single benefit of more effectually preventing the pernicious ones.
That which a man suffers, in whose instance the imputation is false, is little in comparison with what the man suffers, in whose instance the same imputation is true.
Accordingly the marks of vexation exhibited will naturally be in the same proportion: the intensity of the desire manifested for suppression and vengeance.
Factitious honour is a sort of counterfeit substitute for money, invented and fabricated by governments. Money procures services: factitious honour procures services, and among them even such as it is not in the power of money to reach.
Power and money, though, in both instances, the less the quantity that can be made to serve the better, are, to the purpose of doing good, indispensable instruments in the hands of rulers: they are both of them, according to the direction in which they are made to operate, instruments of preponderant good, or instruments of preponderant evil. Factitious honour, it will be seen, is purely an instrument of evil. In the hands of rulers, power and money require to be minimized; out of the hands of rulers, factitious honour requires to be altogether kept.
One advantage, in beginning with power, on the occasion of the minimization process,—one reason for proceeding in this order may now be visible: the less the power you have to contend with, the greater the facility in such application as you have to make to the will. Thus, as above: if the possessor of the power is, at all events, to keep his hold of it so long as he lives, or even so long as he remains legally unconvicted of a specific misdeed, the difficulty of dealing with him may be insurmountable: and by a mass of power, small in extent, as well as intensity, evil to an almost indefinite amount may be produced, were it only that by means of one lot of power thus intrenched as in a stronghold, others indefinite in number and value may be added by him. On the other hand, when it is to the dimension of its duration that the defalcating-knife is applied, no power so ample in its other two dimensions but may be conferred with comparative safety. Witness, in the Roman commonwealth, the dictatorship,—a power which, with the exception of what was thus defalcated from it, was absolute monarchy.
All this while, one thing is undeniable, namely, that for the purpose of establishing, and in the endeavour to establish, security, those who establish government must begin with establishing insecurity: insecurity, viz. as against those in whose hands the means of security against others are reposed. On the other hand, another thing is no less undeniable: namely, that without this risk, the other, a still greater evil, cannot by any possibility be avoided, and that is, want of security against foreign enemies or unempowered malefactors.
Another thing equally true is, that by the badness of other governments, whoever you are, you are prevented from making your own, whatever it is, so good as otherwise it might be.
In this case are the civilized nations of Europe at present with their standing armies. In every foreign nation, each nation beholds a population which may every moment become a hostile one,—a population of foreign adversaries: each nation is thus laid under the unhappy necessity of providing itself with a correspondent instrument of defence: to preserve itself from a distant yoke, it submits itself to present servitude.
Hence it is, that to the other articles in the list of counterforces must be added the institution of a national militia.
The more extensive this counterforce is, the greater the security of the nation, not only against foreign, but against domestic adversaries: not only against the rulers and subjects of every foreign nation, but against its own rulers, whoever they are.
Against these, where the quantity of armed force in this shape is at its maximum, so is this security—the security thus established: in a word, it is entire: for in this case, the degree of efficiency with which, in case of depredation or oppression on the part of rulers, the people are capable of acting in concert, for the purpose of redress, is at its maximum: an entire people, with arms in their hands, cannot be employed as instruments of oppression: why? for this plain reason, that they have no victims to act against—to operate upon.Edition: current; Page: [59]
The elementary units of this force—the individuals of which it is composed, are no other than the members of the public-opinion tribunal. They are judges with arms in their hands, prepared, in case of necessity, to give execution to their own judgments.
A force thus circumstanced may be so organized, as that while it is incapacitated from being made to act as an instrument of offence, it may be rendered completely adequate for every purpose of defence: and to this purpose one simple arrangement is sufficient: a declaration, that without an express law for the purpose, no part of the population thus fortified shall be obliged or permitted to move out of the territory of the state.
For providing the community with the very maximum of force in this shape, small, in comparison is the utmost expense that can be necessary.
Of the incorporeal instruments of misrule, shall fiction be added to the list? With respect to the others, it is altogether disparate: for it is not produced by the same efficient causes,—by money, power, and factitious honour.
Though not the sister of delusion, it is, however, in a certain sense, the offspring of that evil genius. Fiction, men have actually been made to regard as an instrument apt and necessary to good government in general, and to good judicature in particular.
So mischievous an error, where shall the efficient cause of the prevalence of it be found? In delusion,—in delusive influence. By the same causes that delusion has been produced, has this pre-eminently mischievous error been produced. By the several efficient causes of delusive influence, men have been led to regard as their natural and best friends—their protectors and guardians, their most implacable and irresistible enemies; namely, kings, and judges and advocates, placed over them by kings.
For giving effect to the system of depredation and oppression, concerted between the arch-depredator and these his instruments, they have woven a tissue of falsehood—they have concocted a mass of poison in the shape of falsehood, and with the name of fiction,—which, by the stupid ignorant patience of the people, they have been suffered to inject into every vein of the body-politic, and have thus added this source of corruption to the others.
Corruption and delusion are necessary concomitants to each other: the same causes that produce the one, produce the other likewise: the corruption cannot exist, but the delusion must exist likewise: the delusion cannot exist, but the corruption must exist likewise: for it is out of the same matter that both evils are engendered.
Not so fiction. Without fiction, corruption and delusion might have done their worst.
Fiction is a production of peculiarly English growth. In the Roman law, the word may here and there be seen.*
Fiction debases the moral part of the mental frame of all those by whom application is made of it.
Fiction debases the intellectual part of the mental frame of all those upon whom the imposition passes, and by whom the lie uttered in place of a reason is accepted as constituting a reason, and that a sufficient one: and when employed by a judicial functionary, the evil is greatly aggravated.
In general, fiction may be stated to be an instrument of arbitrary power, invented by functionaries invested with limited power, for the purpose of breaking through the limits by which their power was intended to be circumscribed.
Reference had to the greatest happiness of the greatest number, appropriate aptitude, on the part of public functionaries, depends upon the efficiency and the use made of the several securities above-mentioned.
Reference had to the greatest happiness of the ruling one and few, appropriate aptitude, on the part of those same functionaries, depends in great measure on the non-application of those same securities.
Taking them one by one, the state of the matter in this respect will be as follows:—
In defence of the system of misrule as at present carried on in England, a plea in bar against reform, and a plea that seems to be most generally employed and relied on, is—that the system that has place now, is the same as that by which all the good effects that have ever been experienced have been produced: the same on which all the praises that have ever been bestowed upon it by foreign nations as well as its own, have been bestowed.
If things themselves are to be considered, and not mere words—the things themselves and not merely the words employed in speaking of them, nothing can be further from the truth. The assertion, if it be anything to the purpose, amounts to this: viz. that, to the power exercised by the ruling one, in conjunction with the sub-ruling few, once the subject many, there exists at present checks and securities against abuse, either the same as, or not less effectual than, any which ever had place at any former point of time.
This will be found completely false and groundless, whether the power of aggression on the part of the one and the few be considered, or the power of self-defence on the part of the many.
On the part of the rulers the power of aggression may be distinguished into the power of violence and the power of corruption: on the part of the subject many the power of self-defence may be distinguished into that which they exercise by their representatives, meaning always their actual deputies and delegates freely chosen by them, and that which they exercise by themselves.
First, as to the power of aggression by violence. It consists in, and in its amount is proportioned to, the standing force of a military nature under the absolute command of the ruling one. Of this force there are two branches: the land force and the sea force. For the period of comparison take, in the first place, the year 1753, being the fifth year after the war that terminated in the peace of 1748.
Army in 1753, 20,000. Army in 1821, 100,000.
Navy in 1753, 15,000. Navy in 1821, 60,000.
So far as aggressive power is concerned, to say that it is no greater now than it was in 1753, is to say that one hundred thousand is no more than twenty thousand: or that sixty thousand is no more than fifteen thousand.
The more assured the influence and efficiency of those causes, by the force of which, in every government, the ruling functionaries are, on each occasion, prompted and urged to concur in the making of the sinister sacrifice, the more strenuous and universal will of course be the endeavours to conceal from the eyes of all who do not participate in the benefit of it, the existence of the sacrifice itself, and thence the existence and the efficiency of the motives which on each occasion give birth to it. By action (if sufficiently observed) the demonstration afforded by it is on every occasion complete: for producing disbelief of the existence of it—for preventing men from descrying motives through the medium of actions, remain as the only resource which the nature of the case furnishes or admits of—professions. In this case the actions constitute the circumstantial evidence, and professions—mere words, the direct evidence. The circumstantial evidence by which the existence of the sacrifice, and the part borne by each man in the making of it, is demonstrated, being conclusive, nothing is left but to abuse the ears, and if possible, blind the eyes and confound the understanding, the conception, and the judgment, by an all-embracing, and indefatigably, and vehemently urged body of this same direct evidence: evidence which in every instance is mendacious. But the mendacity of it not being in its nature capable of being rendered perceptible to sense—perceptible to the bodily organs of those addressed in the character of judges; hence it is that it ever has been in the most unblushing manner obtruded, and will so continue to be to the very last.
For this purpose, not inconsiderable is the variety of phrases; as common as any is purity of motives. By this phrase what is meant to be insinuated is, either that in the part the man takes he has no regard whatsoever for his own personal interest, or any other narrow interest, or that if he has any, it gives way at all times to his regard for the national or some other more extensive interest. But preferably the meaning is, such being the more direct and obvious import of the words, the utter absence of every particle of self-regard. Of this immaculate purity, each man in the most peremptory manner asserts the existence in his own instance: deny it, or hesitate to admit it, you offer him an affront—an affront, the stain of which he perhaps not unfrequently invites you to permit him to wash away with your blood. Of this same purity he calls upon Edition: current; Page: [61] you, though perhaps in a tone not quite so loud, to admit, on the part of his colleagues and supporters. Nor yet, unless under the smart of some particular provocation, or in the ardour of some particularly advantageous thrust, is he backward in the acknowledgment of the same purity in the breasts of honourable gentlemen on the other side of the house. By this means while the praise of good temper and candour is obtained, the price for the purchase of the corresponding acknowledgment on the other side, is thus paid in advance.
No government so corrupt but that it is in the habit of receiving acknowledgments of this sort from its opponents. Nor are these acknowledgments inconsistent with the rules of policy. For if the position were—all is impurity on that side, all is purity on our side,—people might be found to doubt of it, especially in those instances in which the very same men have been seen sometimes on the one side sometimes on the other: and in that case the result might be, in some eyes, a rational supposition of its non-existence on either side.
At the expense of truth (need it be said?) is all this laudation and self-worship, every atom of it. But the more irrefragably true is the contrary position, the more strenuous is the urgency of the demand for it. Thus it is, that urged by the necessity which on all sides they are under of making men in general continue in the belief of the non-existence of that which they are seeing and feeling the effects of at every moment, public men join in the inculcating of the errors correspondent and opposite to the most important truths: in causing men to believe that, under a form of government so thoroughly corrupt, that all who belong to it are in a state of corruption—none are: to believe in that fabled purity which is not ever true even where temptation is at its minimum, much less in a situation in which it is at its maximum.
This being the language of ruler-craft, what is the language of simple truth? That in spite of everything which is said, the general predominance of self-regard over every other sort of regard, is demonstrated by everything that is done: that in the ordinary tenor of life, in the breasts of human beings of ordinary mould, self is everything, to which all other persons, added to all other things put together, are as nothing: that this general habit of self preference is so far from being a just subject of denial, or even a reasonable cause of regret, that the existence of it is an indispensable condition not only to the wellbeing but to the very being of the human species, and should therefore be a cause of satisfaction: that admitting, as perhaps it may be admitted, that in a highly matured state of society, in here and there a highly cultivated and expanded mind, under the stimulus of some extraordinary excitement, a sacrifice of self-regarding interest to social interest, upon a national scale, has not been without example—public virtue in this shape cannot reasonably be regarded as being so frequently exemplified as insanity: and that as in the case of insanity so in this,—it is in what has place in the conduct on the part of the thousands, and not in what has place in the conduct of one in every thousand, that all rational and useful political arrangements will be grounded.
Of a state of things thus incontrovertible, no sooner is the existence to a certain degree extensively acknowledged, than all pretence to this species of purity will be regarded as would an assertion of chastity in the mouth of a prostitute at the very moment of solicitation: regarded as an insult to the understandings of all those to whom it is addressed,—and will as such be resented.
Partly through artifice, partly through blind imitation, almost every sort of document, by which right instruction ought to be administered, is regularly and constantly employed in the drawing of those flattering pictures of human nature: flattering in so far as that disposition is ascribed, by which if really possessed in the degree in which it is represented as possessed, the destruction of the whole species would be the consequence. These pictures of human nature are drawn without any determinate and declared line of distinction, yet so ordered, that the favourites of fortune are the only individuals that have the benefit of it.
In all histories, in all biographies, in all funeral sermons, in all obituaries, is praise poured out with the most boundless, and indiscriminating profusion, upon those who howsoever spoken of while living, are thus richly compensated when dead. That for fortune's favourites alone is the praise destined—that by them alone it is, or can be invoked, is not expressly said: yet so it is, that to none other, can any part of it ever have application.
Thus it is that in all these documents, honour and praise bestowed, operates as a bounty upon oppression and depredation, as an encouragement to persevere in all those courses by which human misery on the largest scale is produced.
It is from the same pernicious artifice that the adage—"of the dead say nothing but what is good," has its source: i. e. give on every occasion false and delusive instruction, in the most important of all branches of art and science: instruction by which the few may be engaged to commit oppression and depredation in every shape, and the many engaged to submit to it.
Tender in their sympathy for those who have no feeling: callous to the sufferings of all those who are exposed to suffer from the crimes of their confederates.
This doctrine is inculcated in all seats of instruction, in every monarchy. To his disadvantage, nothing: to his advantage, anything. Thus, bating a few exceptions, the portrait presented by the aggregate of these documents, is that of universal excellence. Not that by Edition: current; Page: [62] the word excellence, anything approaching to the character of a distinct idea, can be ever presented: all that is presented, is a something by which the individual is constituted a fit subject of admiration and consequently of imitation. But these so fit subjects of admiration and imitation, to which class do they belong? Uniformly to that class, by which all the mischief done in the world has been done: while those who never come in for any share of this admiration and this praise, are with a few exceptions as before, of the class of those, by whom at the same time, whatever good has been done, has been done.
In the labouring—the productive class, life in its general tenor, is a life of beneficence: whatever maleficence has place forms the exception, and in comparison with the beneficence, those exceptions are extremely rare. By the produce of his labour, he procures his own subsistence, and contributes to that of the family to which he belongs: in so doing, he contributes at the same time to his own gratification: for by the constitution of human nature, gratification is inseparably attached to those operations by which the individual—and hence by which the species—is preserved. At the same time to an indefinite amount, according to the nature of his employment, he contributes to the gratification of others in abundance: others by whom no such contributions are made to the general stock of felicity. By him, no mischief is done: no depredation committed—no oppression in any other shape, committed.
Not the smallest particle of that praise and admiration ever falls to the share of this uniformly beneficent class. So far from being objects of respect or sympathy, they are objects of contempt and antipathy: they serve but as foils, to the receptacles of all excellence.
Here, then, are two distinct and opposite classes: the one composed of those by whom the disagreeable sensation, called disgust, is constantly experienced: the other composed of those who are the objects of it—those from whom it is experienced. But those from whom it is experienced, are undoubtedly, in a physical sense, comparatively impure: the quality, on account of which they are the objects of disgust, is impurity: while the opposite agreeable quality is among the incontestable attributes of those by whom they are contemplated in this point of view. But by those by whom everything is produced, small indeed in comparison is either the time or the money that can be afforded by them in freeing themselves from impurities:—never sufficient for the satisfaction of those, their superiors in the scale of fortune.
Unfortunately of the appellation impure, in the case in which it is with propriety applied to the productive classes, the propriety is much more obvious and incontestable, than in the case in which, it is with so much less propriety applicable to those same classes, namely, in the moral sense,—while it is with so much more propriety applicable to the unproductive classes. If a man be covered with dirt, you see it in a moment by a glance at his face. But if he be a man, who, after sacrificing to his own gratification the subsistence of 100,000 human beings of the productive class, is still running in debt, disdaining to apply a bridle to that rapacity by which he is urged to go on, in the same sinister sacrifice, so long as an obtainable particle of it remains unsacrificed—nothing of this do you see in his face, or in anything about him; on the contrary, you see him encompassed with trappings, the object of which, (and in but too great a degree the effect,) is to cause you to regard him, not as being distinguished by any of those mischievous qualities, by which he is so pre-eminently distinguished,—but as one who is pure of all those qualities, from the effects of which, suffering, in various shapes, to other individuals, is derived.
To the devising of any well-grounded and rational course, for the surmounting of the obstacles opposed to good government, by the universal self-preference in the breasts of the functionaries of government—of the constituted guardians of the universal interest—the first step was the taking a true observation of the existence and shape of that same universally prevalent, particular, and sinister interest. This theory being accomplished, correspondent and accordant practice becomes a matter of course. Hence, into the compass of these two words, may be condensed the all-directing and leading rule—minimize confidence. Such, then, is the advice which the framer of this constitution has not been backward in giving to all who are disposed to accept it. Confine within the strictest limits of necessity, whatsoever confidence you may be tempted to repose either in them or their successors.
At the same time, here as in a watch, does this main-spring require another to antagonize with it. Of all constituents be it, at the same time the care, from no delegate to withhold any of that power, which may eventually be necessary to the due performance of the service looked for, at his hands. While confidence is minimized, let not power be withheld. For security against breach of trust, the sole apt remedy is,—on the part of trustees, not impotence, but constant responsibility, and as towards their creators—the authors of their political being—on every occasion, and at all times, the strictest and most absolute dependence. In the first place with powers no otherwise limited, on the part of the Supreme Legislative, the most absolute dependence on the Supreme Constitutive, and thus in a chain reaching down to the lowest functionary: each link, through the medium of the several increasing links, in a state of equally perfect dependence on the Supreme Legislative, and by this means on the Supreme Constitutive. If Edition: current; Page: [63] the Supreme Constitutive were in a single hand—in the hand of a monarch, no objection would there be, on his part, to this chain of dependence: nor on the part of any of those who, that the many may be dependent on them, are so well content to be dependent on that one. Can it be said there is less reason for content when the few are thus dependent on the many?
With the maximization of beneficial power, to reconcile and embrace the minimization of maleficent power, lies the great, not to say, the only difficulty. For surmounting it, the course here taken is—the keeping throughout the whole field of action, in the hands of the many, the faculty of dislocating the possessors of operative power—in the hands of those by whom, and in so far as, maleficently exercised, the suffering thus produced will be felt.
In vain would the efficiency of the course, here recommended, be questioned, or its alleged dangerousness asserted and magnified. For a complete demonstration of its efficiency, as well as its undangerousness, one and the same example has already sufficed. This is that of the Anglo-American United States. In essentials, the principals by which the arrangements in the constitution of that confederacy have been determined, are the same, it may be seen, as those here laid down and applied. Of that constitution, the fundamental principle is the omnipotence of the many: the omnipotence in so far as established by the constitutive power, though not a particle of the operative power can be seen lodged in those same hands.
By the adoption and application made of this principle, while an unexampled quantity of good has been produced, and evil, in the shape of evil, from misrule excluded,—not a particle of the alleged mischiefs or dangers has ever been seen to result: while the evils, which, for want of this safeguard, have, at the same time, as well as in all former times, been produced in all other governments, are and have been, multitudinous, intense, and incontrovertible; and are destined to go on increasing, till the governments themselves are dissolved.
Not that even in this hitherto matchlessly felicitous system, imperfections of detail are wanting: witness the still unabrogated sanction given to domestic slavery on account of difference of colour, and the misrule submitted to at the hands of the lawyer tribe, for want of an all-embracing and determinate rule of action: not to speak of a quantity of useless and thence mischievous complication, by which the transparency of the system still continues to be disturbed. But in these imperfections there is nothing that flows from the above-mentioned fundamental principle: nor yet any evil that may not be seen in still greater abundance in those other states, in the constitutions of which this principle has no place. Neither is there any evil, which, without any change in the constitution, might not receive, and beyond doubt is destined sooner or later to receive, an easy cure; while to the evils resulting from the constitutions of all other states, no cure can by possibility be effected by any other means, than the abrogation of those constitutions, and substituting the sort of constitution, of which it is the characteristic to have for its fundamental principle, the omnipotence of the many, as above.
At the same time, men being the same everywhere, not less universally exemplified is the principle of self-preference in that, than in every other form of government. But where the government is in the hands of all, or what comes to the same thing, of those whose collective interests are the same with the interests of all, the natural effect of the principle of self-preference is—not as in the case where it is in the hands of one, or of a few, the sacrifice of the interest of all, to the interest of that one or those few; but the sacrifice of all interests that are opposed to the happiness of all. In so far as his aim is, to sacrifice all interests to his own,—the interests of others, to that which is peculiar to himself, no man finds any effective number of hands disposed to join with his: in so far as his aim is, to serve such of his interests alone, as are theirs as well as his, he finds all hands disposed to join with his: and these common interests correspond to the immediately subordinate right and proper ends of government, maximization of subsistence, abundance, security, and equality. In so far as by the principle of self-preference, he is led to promote his own happiness, by augmenting theirs at the same time, or even without diminishing it, so far he finds himself capable of acting without obstruction: but no sooner does he attempt to promote his own happiness, by means by which theirs is diminished, than he finds obstruction thrown in his way, by all whose happiness is, by this his enterprise already more or less diminished, and by all who, in case of his success, are apprehensive of suffering the like diminution. Thus, then, the principle of self-preference, has for its regulator in the breast of each, the consciousness of the existence and power of the same principle in the breasts of all the rest: and thus it is that the whole mechanism is at all times kept in a state of perfect order, and at all times performs to admiration everything that is desired of it, everything it was made for.
As to professions, and boasts of purity of motives; in the debates and discussions that have place in those United States, little or nothing of this sort of talk is heard. Why? Because, in the first place, there is no such demand for it: in the next place, there would be no use for it, for there would be no prospect of its gaining credence.
No such demand: for by no functionary, or set of functionaries, is any such power there possessed as that of exercising depredation or Edition: current; Page: [64] oppression in any shape—that of making of the interests of others, any such enormous sacrifices, to his own particular interest, as are made under all other governments,—any such power, nor consequently, any such habit. The sinister interest not being proved by his actions, there is no such circumstantial evidence, calling for direct evidence to furnish a disproof of it.
No credence would any such profession obtain if uttered. In a monarchy, while producing its effects in the way of corruption on the self-styled agents of the people, the matter of good above-mentioned, in their hands, and thrown round their persons, is producing its effects in the way of delusion upon the people themselves. Full, they are seen to be of money, power, and factitious dignity: proportionably full, under favour of the delusion, they are believed to be, of excellence. As of excellence in general, so of excellence in the shape of sincerity in particular: so that, when they say their motives are so pure, their regard for the interests of the people so intense, their disregard for their own interests so entire, the assertion of all these impossibilities, impossibilities as they are, is not the less followed by belief.
But in those United States, no such source of delusion has place: no man, whose impudence has soared to any such pitch, as to make pretension to any such excellence. By inward consciousness, each man stands assured of the dominion of the principle of self-preference in himself: by analogy, receiving continual support from experience, each man stands equally assured of its existence in the breast of every other man. No man, therefore, sees any advantage in coming forward with pretensions, which, if made, would be productive of no other fruit than scorn and ridicule.
By nothing which is to be found in that example, is any contradiction or exception applied to the rule, by which the greatest happiness of the rulers themselves is asserted to be the end in view of all rule: why? for this simple reason,—the supreme rulers themselves, are those, whose interests are not decidedly distinguishable from those interests of which the universal interest is composed.
Whatsoever moral considerations,—notions of moral obligation,—should induce a man to abstain from acts injurious to individuals, or to the community in the aggregate, and to oppose himself to acts of the like tendency on the part of the other individuals, or of foreigners, considered in the character of enemies, should urge him to the like conduct as against the correspondent acts of misrule, on the part of the government, and as against the form and system of government which gives birth to them. So much with regard to direction: then as to force and energy. In the case of the public wrong, the resistance ought to be to what it is in the case of the private wrong, as are the number of the sufferers in the two cases; in other words, as the mischief done by the public wrong, is to the mischief done by the private wrong.
Taken in its largest sense, the word corruption is employed to denote the deterioration of the subject to which it is applied,—the rendering it worse than it was before, or would have been otherwise. Corruptio is in Latin, breaking up: the breaking up of the texture of the subject in question: it being understood that, by such breaking up, it is rendered worse. In the first instance, the word was used in a physical sense: the breaking up the texture of a mass of animal or vegetable matter; from thence, it comes to be used in a moral sense,—the breaking up for the worse, the texture of the mental frame.
When the sense in which the word is used is the physical sense, no more than one object is necessarily considered as having place in the operation: namely, the corruptible mass in which the change has place: by another object, operating in the character of a ferment, the change may be promoted: but no such exterior object is necessary to it.
Where the sense in which the word is used is the moral sense, the idea of two objects at once is commonly presented by it: the part in which the one appears, an active part; the part in which the other appears, a passive part. The objects thus presented to view are commonly persons. In this case what is presented to view, is an operation in which two persons are concerned: one the agent in the operation, corrupting the other, and thereby rendering himself a corruptor: the other, the patient in the operation, being corrupted by the former, and by the having been so corrupted becoming and continuing corrupt.
Thus it is, that an operation called corruption has been performed: and by the same word corruption, the result of the operation—the state of things brought about by it—is designated.
In the operation thus described, by the party corrupting corruptive influence has been exercised: by the party corrupted, say in one word, (on the plan mentioned and recommended by Blackstone,) the corruptee—corrupt obsequiousness has been practised.
In the idea thus brought to view, is also commonly comprised that of an auxiliary agent, considered as being employed as an instrument by the principal one. This instrument is a quantity of what may be termed the matter of corruption, employed in that same character of an instrument. Applied in the physical sense, and to a physical subject, this instrument is what is called a jerment. Edition: current; Page: [65] This matter, employed as an instrument to act upon the mind, if it operates, it is in the character of an inducement that it operates.
An inducement is constituted either of the matter of evil or of the matter of good, operating on the mind in those their respective characters.
An inducement, to which the name of corruptive might without impropriety be attached, is an inducement of the intimidative kind. Say, for example, the fear of death: intimation being given, that if the party meant to be corrupted will not do the sinister service desired at his hands, he shall be put to death,—in the opposite case, not.
An instrument of this sort is not, however, the sort of instrument, the idea of which will, by the words, matter of corruption, instrument of corruption,—be in general most apt to be excited. Not a portion of the matter of evil, but a portion of the matter of good, is the sort of instrument, the idea of which will, by any such appellations, in general be apt to be excited.
This matter of good will be some portion of the matter of which the external instruments of felicity are composed, namely, power and wealth, with or without the addition of factitious honour or dignity.
In regard to corruption, the first grand distinction is, the distinction between that which is designed, and that which is undesigned. By undesigned, understand that which is capable of having place without design, not that which is not ever, in any instance, the result of design: for of that which is capable of having place without design, there is not any portion but what is not altogether capable of having place with and by design, and is abundantly in the habit of being so produced.
Suppose the creation of it the work of chance: nothing is more natural than that the preservation of it shall be the work of design.
The corruptive influence by which, in the case of bribery, an elector of a representative of the people in a mixed monarchy is engaged to give his vote in favour of a candidate by whom, or by whose agent, money is given for it, is the work of design. On the other part, the corrupt obsequiousness is accompanied with a consciousness of the nature of the corrupting inducement to which it is indebted for its existence. The corruption, in consequence of which the representative perseveres in giving support to the measures of the monarch, in that same monarchy, for a course of years, notwithstanding any depredation and oppression of which those same measures are all the while productive, may by possibility, be produced on the one part without any such design, and on the other part without any such self-criminating consciousness. The monarch, in his quality of chief executive functionary, must have subordinates, in the several situations, with large masses of emolument attached to them. The representative, seeing that these situations must have place, and thinking that the masses of emolument attached to them must have place, thinks that of these good things the possession and enjoyment may as well be in his hands as in any other's. The monarch is kind and bountiful: in return for kindness and bounty, the moral and the religious sanction join in commanding gratitude: and thus it is, that without design of evil on the one part, or consciousness of it on the other, corruption may do its work, and evil, to any intensity, extent, and duration, be produced.
Corruption may also be distinguished into personal, or say personally seated, and systematic, or say systematically seated.
By the case in which it is personally seated, understand the case in which a determinate individual is assignable, by whom a portion of the matter of good, constituting the temptation, has been presented to the view of the individual at whose hands the sinister service was desired, and the bait accordingly swallowed, and the sinister service rendered. In this case stands the transaction between the candidate and the elector, as above. By the case in which the corruption is not personally but systematically seated, understand the case in which no such individual is assignable, but the cause of the corrupt transaction—the source of all transactions of the same nature pervading the whole official establishment, is in the system or frame of government.
A system of government in which an irremoveable functionary possesses an indispensable share in the supreme legislative power, and at the same time the whole or the greatest part of that branch of the supreme executive power, by which the subordinate functionaries are placed, and, in a proportion more or less considerable, displaceable, is a system in which corruption is systematically seated. On the one part, the corruptive influence of the chief functionary, on the other part, the corrupt obsequiousness on the part of the people's representatives, has its source, not in the mental texture of this or that individual, but in the political texture of the system or frame of government itself. It will therefore, of necessity, go on in the production of the fruits of corruption, namely, depredation and oppression, in a quantity continually increasing, unless, and until the form of government receive an apt and adequate change.
Obsequious dependence is produced by fear or hope: fear of eventual evil, or hope of eventual good.
Dependence by the tie of fear is generally most effective: the greatest evil which a dependent is capable of receiving at the hands of a superior being more than equal to the greatest good. Suppose the degree of probability of the result to be the same, the same sum produces more effective dependence by the fear of losing it, than by the hope of gaining it: punishment, by the fear of losing it Edition: current; Page: [66] produces a dependence more effective, than reward, by the hope of gaining it.
Under the English form of government, all desirable offices, without any exception worth taking into account, being in the gift of the monarch, and to the greater part of the extent, the power of dislocation being, in relation to those same offices, also in his hands,—hence, on the part of all other members of the community, dependence, more or less effective, has place universally. The interest of this one member being opposite to that of all the rest, it is his constant desire, and correspondent endeavour, to cause them to support his interest at the expense of theirs. Thus, under that form of government, corruption is all prevalent on the part of those who possess, and those who look to possess, a share in it. And whatever may be the variation in degree, as in that, so is it, in this respect, in every other limited monarchy.
One great misfortune attendant on the use made of corruption and delusion is, the extreme facility with which the fabrication of these instruments of misrule is attended. Force and intimidation are not applied without special and strenuous exertions on the part of possessors of power, specially directed to the production of obsequiousness—the desired effect. Corruption and delusion are produced by them not only without any strenuous exertions, but without so much as any expense in the article of thought: are produced by them just as well when asleep as when awake.
To exercise corruptive influence to any amount—to produce corrupt obsequiousness to any amount, it is not necessary that either endeavour, or so much as desire so to do, should have place in the mind of the ruler. All that is necessary, is, the desire and the endeavour, which in his situation is of course followed by accomplishment,—the endeavour to produce, and of course the production of, waste. In a word, all that is necessary to him is, on every occasion that presents itself, to yield to the appetite for money in his own breast, or in the breasts of any individual or individuals connected with him, in the way of interest or sympathy: for the purpose of their individual gratification the money is put into their pockets: thereupon, by the eventual expectation of the like benefit from the like source, corruptive obsequiousness is produced in the breast and conduct of ten, twenty, or perhaps fifty times, as many breasts as those in which the gratification attached to the receipt and expenditure of the money, was produced.
In itself corruption is no evil, for neither is the receipt, nor the conferring of a benefit, in any shape an evil; in so far as it is an evil, corruption is so, only in respect of the evil effects produced by it: abstraction made of these effects, it is even a good.
To prevent here and there an insulated breach of trust, effected by means of remuneration, is impossible; but to prevent the evil effects of corruption from having place to any such amount as to be perceptible on a national scale, is possible.
In a limited monarchy, corruption by intimidation at large, cannot have place to any considerable extent: the intimidation and the consequent suffering would extend to those by whose power the limitation to that of the monarch is applied. They would call in the power of the people to their aid, and make a change either in the form of government, or in the person of the chief governor and his family, or both.
The case in which corruption by intimidation is capable of having place, is therefore reduced to that in which corruption by intimidation is connected with corruption by remuneration: the state of intimidation in question having for its efficient cause, the fear of losing a benefit, which has proceeded from the intimidating hand.
Such then will be the effect of the universally applying dislocative power here proposed to be vested in the people, in their quality of members of the constitutive authority: it will be an effectual preventive of depredation, and oppression in every other shape, at the hands of rulers. It will not indeed operate as a completely effectual preventive of corruption in the shape of corrupt remuneration in particular instances as above; but, so few will be these instances, and the evil effects, if any, so inconsiderable, that in a national point of view, they may be regarded without much regret by the most anxious lover of mankind.
Suppose that in the instance of this or that office, the choice made of the functionary by the patron, as between C, a corruptor, (in whose favour the matter of corruption has been employed,) and N, a non-corruptor, (in whose favour no matter of corruption has been employed,) has been determined by the giving of a daughter of C's, in marriage to a son of the patron's, with a fortune greater than would have been given otherwise: C and N, being exactly upon a par, in respect of appropriate aptitude. In this case the corruption has place, but by the supposition no ill effects whatever are among the results of it.
Suppose now, that though neither of the candidates be to any such degree absolutely unapt, as that any determinate ill effects should be seen to result from their want of aptitude, in such sort as to be neither of them perceptibly below par in the scale of aptitude,—yet one of them there is, to whom, though above par in the scale of aptitude, the one who is not above par, has been preferred. This is the sort and degree of corruption, against which neither the universally applying dislocation in the hands of the constitutive, nor this, in addition to all remedies whatsoever, which the nature of the case admits the application of, can ever operate as a completely adequate preventive. But so long as the effects of corruption rise not above this height, neither Edition: current; Page: [67] the framer of the constitutional code, nor any spectator of it, need feel much dissatisfaction at the contemplation of the work.
Corruption may be understood in a more extensive sense, namely, by being considered as designating the matter of good or evil, operating on the mind of an individual in such sort, as to cause him in contemplation of a less good to forego a greater, or by the contemplation of a less evil to subject himself to a greater, or by the contemplation of a less evil to forego a greater good.
Thus when Esau, as in the history, sold his birth-right for a mess of pottage, thus sacrificing to a lesser present, a greater future interest, his will may on this occasion be considered as having been governed by corruptive influence: and the portion of the matter of corruption by which the effect was produced, was, in this case, the mess of pottage.
In a word, whosoever the party is, to whose happiness reference is made by the word good, every case in which the lesser good is embraced in preference to the greater, or even the greater evil in preference to the less, may be considered as a case in which corruption, or say corruptive influence, has had place, and has in such sort operated, as to have given birth to the sinister effect.
An elector, who by his vote should contribute to the establishment of a constitution having for its effect, instead of the greatest happiness of the greatest number, the greatest or supposed greatest happiness of the ruling few at the expense of the happiness of the many, would, supposing himself to become in consequence of the misrule, a sufferer to a greater amount than that of the benefit received by his vote, be an Esau selling his birth-right for a mess of pottage.
Look to a man whose situation places him under the temptation above described,—see him putting into his pocket the reward thus proffered by it,—conceive him standing up and saying—never from either the prospect or the receipt of this reward, has my conduct ever experienced any the slightest influence,—a declaration to any such effect can it, in the instance of any man which ever breathed, have presented any so much as the slightest claim to credence? Yes: if,—when for the obtainment of legal evidence of a capital crime, pardon, together with a thousand pounds reward, has been offered to any partaker in the crime who, with the effect of producing the conviction of a fellow criminal, will repair to the judicatory and give his narrative of the case, if, in the course of his narrative he should take upon him to say—neither by the assurance of receiving the thousand pounds, nor by the assurance of saving my forfeited life, am I influenced by the statement I am now giving,—if, with a protestation to this effect in his mouth, the malefactor could present any claim to credence.
If, to assurances to this effect, protestations were added,—if, to protestations, eyes lifted up to heaven,—if, to eyes lifted up to heaven, summonses to God to come down and bear witness,—if, to summonses to God to bear witness, tears,—if, to tears, faintings were added; to the claim made by the simple declarations, would any additional claim either in the case of the chancellor in office or out of office, or in the case of the minor malefactor, be made to credence? Yes; if by his display in the character of Iago, Mr Kean calls him from the grave, calls the dead to life, and transforms himself into that personage.
By the common name of corruptionists, corruptors and corruptees may both of them be designated. By the use of this common appellative, the difficulty and obscurity attached to the operation of ascertaining, which of the two parts was, on this or that occasion, acted by the individual or individuals in question, may be avoided.
Everywhere, the whole official establishment, is a corruptive establishment: to possess the sinister benefits of corruption, is the universal wish.
But, without their own pale, the members of the official establishment have, in their quality of corruptors, or would-be corruptors, their accomplices, and in the natural course of things, their confederates. These are the several classes of which the aristocracy of the country is composed.
They have, all of them, that which is sufficient to make them so: the particular and sinister interest, and the situation in life, which gives them (such of them as are not rulers) the faculty of serving by confederacy with such as are rulers, that same sinister interest.
Of the expense of government, every part which has for its effect or its object, the affording to the few gratification in which the many cannot participate, is so much of the corruptive fund employed in gaining over the aristocratical classes, and obtaining their support and assistance in the depredation and oppression exercised on the many.
To the other ingredients of the corruption-fund may be added, everything that goes by the name of grace and favour: admission to places to which others would not be admitted: admission to more convenient or more honourable situations in places in which persons in general are admitted: opportunities of purchasing this or that object of desire with more certainty, or upon terms more advantageous, than those on which persons at large can obtain them.
Corruption has place where, by means of some benefit to himself, a functionary is made to violate his trust.
On this occasion, the following points must be considered, namely:—
1. The sinister effect produced, viz. mischief in some shape or other to the public service.
2. The nature of the benefit, or say, the sinister benefit, received.Edition: current; Page: [68]
3. The person corrupted,—say the corruptee.
4. The hand by which the sinister benefit is received, namely, the corruptee's own or some other.
5. The person benefited by the sinister effect—say the corruptor.
6. The immediately corrupting hand by which the sinister benefit is applied.
7. The relative time at which the sinister benefit is received: relation had to the time at which the sinister effect is produced: namely, consequent or antecedent.
8. The motive by the operation of which, on the mind of the individual corrupted, the corruption, and thence the sinister effect, is produced.
1. As to the sinister effect of the corruption: This considered in its general complexion, is violation of the trust in question: of the trust, correspondent to the power, with which in virtue of his office, the functionary on whom the corruption operates, is invested; or if the functions be no other than such by the exercise of which no power is exercised,—the duties attached to the situation of the corruptee. The object here proposed, being the keeping as far as possible excluded, corruption wherever it is liable to have entrance, or at any rate the keeping excluded as far as possible whatever evil effects it is pregnant with, the effect must to this purpose be presumed to be in every case, evil: in what particular shape, will depend upon the particular nature of the function attached to the office whatsoever it be, and the correspondent trusts or duties of which the violation is produced.
2. As to the nature of the benefit. This may be good in any of its shapes. The matter of corruption is accordingly the matter of good in any of its shapes, considered as employed to this sinister purpose. For examples of the shapes in which the matter of good is at the disposition of governments or individuals, take the several external instruments of felicity in all their shapes: including money, power, factitious dignity, ease at the expense of official duty, vengeance at the expense of justice.
In the idea of good in all its shapes, is included the idea of evil in all its shapes. How so? Because whatever be the shape in which it is possible for evil to show itself, the exclusion or removal of it, is a correspondent good: and in the same way, under the idea of evil in all its shapes, is included the idea of good in all its shapes.*
Good may accordingly be divided and distinguished into positive and negative. Positive good, is good not consisting in the absence or removal of evil: negative good is good consisting in the exclusion or removal of evil.
Punishment may therefore in this way be made and accordingly is made an instrument of corruption. Give a man to understand that if he will not render the sinister service he will be punished; but that if he does render it, he shall remain unpunished: the non-application of the punishment has the effect of reward. Where the instrument is in both cases the same, as in the case of money, and the magnitude of it equal, the actuating force of punishment is much greater than that of reward. Aggregate value of a man's property say £100. Give him £50, you do not produce near so much enjoyment, as you do suffering by taking from him that same sum: the ratio of £100 to £50 is twice as great as the ratio of £150 to £100. Give him £100, still further are you from producing on his part as much enjoyment as you would suffering, by taking from him that same sum: you in this case take from him his all: scarcely by giving him £1000, would you produce so much enjoyment, as you would suffering by so stripping him. Man is susceptible of pain in greater quantities than pleasure.
Considered as forming part and parcel of the matter of corruption, a benefit requires to be distinguished into that which is irrevocable and that which is revocable. In the case where it is irrevocable, the effective, or say corruptive, force with which it operates, is that only which belongs to it in the quality of matter of reward. In the case in which it is revocable, the corruptive force with which it operates is that which belongs to it in the character of matter of punishment. By giving to a man an eventually permanent benefit, of which you reserve to yourself the power of depriving him at pleasure, you invest yourself with a power of inflicting punishment—you place him in a state of dependence and subjection to that same power. As to the creation of such a power, it is an evil altogether inevitable: for without power of dislocation on the one part, and dislocability on the other, no tolerably efficient security for appropriate aptitude on the part of subordinates, can be established. But for excluding the abuse of it no securities which the nature of the case admits of can be superfluous.
To this head belongs the case of pardons, and the exercise of mercy, which has been considered elsewhere.
3. The corruptee: namely a public functionary of any grade in any department, at whose hands the sinister service is thus obtained: whether his function has power in any shape attached to it or not.
4. The immediately receiving hand—the hand by which, without the intervention of any other, the sinister and corruptive benefit is received. This may be that of the corruptee or any other: of any other person whatsoever, if connected with the corruptee by any tie of self-regarding interest, or though it be but sympathetic interest. For example, a son of the corruptee, or any other person who is in such sort in the dependence of the corruptee, Edition: current; Page: [69] that but for the sinister benefit thus received, the corruptee would, at his own expense, have had to make provision to the same or any part of the amount. Or even an ever so-perfectly-independent friend; for so long as sympathy has place between man and man, the sinister effect of corruption may be produced as fully by a benefit conferred on a person other than the corruptee, as by a benefit conferred on the corruptee himself.
This or that man who would not be won by a benefit offered to him for himself, might be won by a benefit, especially if conferred in a manner called handsome, on a friend.
5. Corruptor or corruptors: parties by whom the benefit from the sinister effect is reaped.
On each occasion these may be distinguished into special corruptor or corruptors, and corruptor or corruptors-general. Special corruptors are those by whom the benefit on the occasion of this or that individual transaction is reaped. Corruptors-general are those by whom the benefit from the whole system of corruption taken in the aggregate is reaped.
In every political state the whole body of public functionaries constituting the supreme operative, require to be considered in the character of corruptors and corruptees: at the best, they are at all times exposed to the temptation of being so, and in a greater or less degree are sure to be made to yield to that temptation. In a republic the sinister effect of that temptation is capable of being confined within bounds—within such bounds as will exclude all practical evil. Under that form of government the constitutive authority is placed over the supreme operative, with dislocative power with relation to it, as well as locative.
Between the corruptors and the corruptees, the distinction is not very easy to trace out and delineate. In an absolute monarchy, the corruptor and corruptee may be said to be one. For the monarch or corruptor-general has in one hand the whole mass of the instruments of felicity; and in the other, he lodges them all for his own use: sacrificing to his own expectation of happiness, the happiness of the people at large. But, as by his own hand alone no such sinister sacrifice could be made, hence the necessity he is under of applying more or less of the matter of good in his hands to the making of corruptees.
In the case of a mixed monarchy, the distinction shows itself most clearly.
6. The immediately corrupting hand:—the hand by which, without the intervention of any other, the sinister benefit is applied to the receiving hand. This may be the hand of him, by whom, on the particular occasion in question, the sinister benefit is received, or any other. With relation to the sinister effect, whether it be the one or the other, will of course make no difference.
7. The relative time at which the sinister benefit is received: namely, before or after the production of the sinister effect,—the rendering of the sinister service on the part of the corruptee.
Relation had to this point, the receipt of the matter of corruption may be said to be antecedential or consequential.
According as it belongs to the one or to the other of these two descriptions, the inducement, or say, the motive by which, on the part of the corruptee, the sinister service, the sinister effect is produced, is, it will be seen, of a very different description.
8. The inducement, or say, the motive or motives by which, on the mind of the corruptee, the sinister service and with it the sinister effect, is produced.
This will be altogether different, according as the receipt of the sinister benefit, in respect of relative time, is antecedential or consequential as above.
Of the two cases, the simplest is that where the receipt is consequential: in this case, the determining motive is expectation, or hope of the benefit in question. Where the receipt is precedential, the determining motive will generally be gratitude, and sometimes the fear of the reproach of ingratitude, or of perfidy.
If the views of the legislator do not comprehend corruption in all its possible shapes, as well or better might he leave it untouched altogether: for, whatsoever be the shapes to which the arrangements made by him do so extend, to those will it betake itself and operate with effect.
The two shapes or forms—the consequential and the antecedential, are apt to have place and operate together in the same case: indeed it is not often that they are found separate. In so far as they are separate, of that in which the remuneration is regarded as consequent to the corrupt service rendered, the efficiency is obviously much more assured and discernible. In this surest case, it is altogether by expectation that it is produced. From this one circumstance flow several important results.
To produce every bad effect of corruption, there needs not any special act of corruption. There sits a person who has good things in abundance at his disposal, and who has an interest in disposing of them in a certain way, namely, in favour of such persons as, by their agency, contribute to the accomplishment of a certain end. An individual observes what passes and acts accordingly. By his agency he contributes to that end: why? because in consequence and consideration of the doing so, he expects to receive some good thing or other, in the character of a reward. Whether at the hands of the person in question, he actually receives any such good thing, makes not to this purpose any difference.
In a certain state of things, to produce the effect of corruption, no corruptor, other than the corrupted person himself, is necessary. In virtue of a pre-established state or order of things, a sinister effect to the community at Edition: current; Page: [70] large, and a beneficial one to himself, follows from an act, the performance of which lies within his own competence. Thus in the case of the war, commenced by the monarch without any previous declaration, he, by a pre-established arrangement, and by means of his legal instruments, received the net amount of the depredation.
This is the simplest case, where the expectation or hope of the benefit in question is the determining motive, or say, inducement. The moving pleasure, is the pleasure produced by the contemplation of the pleasures which the possession will, it is expected, afford: accompanied as the contemplation is, with the belief more or less intense, of their future existence.
Suppose a functionary who has an office at his disposal. He locates in it an indisputably unapt individual, from whom, however, a bribe is expected: and afterwards in consideration of, and recompense for, the benefit thus conferred, the functionary receives a sum of money, which is, in this case, called a bribe; or suppose a legislator, meaning a person having a share in the legislative power, in the expectation of receiving for himself or friend a lucrative office at the hands of a minister, who (for the purpose of adding to the number of good things at his disposal) is bringing about an unjust war, gives his vote in favour of the war, and receives the office accordingly; or suppose an elector in the expectation of receiving a certain sum of money at the hands of a candidate for a seat in the legislature, delivers his vote for that same candidate, and thereupon afterwards receives the money.
In all these cases, the cause by which the sinister effect is produced, is the pleasure of expectation, by the contemplation of the good eventually expected,—the desire of that same good—the good itself not being yet in possession—in a word, by hope.
In the case where the receipt is precedential, the motive or inducement must be of quite a different stamp. With relation to the individual benefit in question, hope it cannot be: for, by possession, expectation has been crowned and terminated.
Suppose the sinister service rendered: the act must have had for its cause one of the following, namely:—
1. Gratitude, meaning the sentiment of gratude: sympathy for the corruptor,—the benefactor,—sympathy produced by the contemplation of the enjoyment received from his benevolent, effective, and beneficent hands.
2. Fear of the reproach of ingratitude, namely, in the event of the non-rendering the sinister service, for the obtainment of which, the sinister benefit has been conferred on the one part, received on the other. If, in so far as in a case of this sort, that which is called ingratitude is the subject of reproach, it is because this is one of the points on which the force of the public-opinion tribunal has been made to operate in a direction unfavourable to the greatest happiness of the greatest number: namely, by a judgment, which has for its cause sinister interest on the part of the aristocratical section of that tribunal, and relative ignorance on the part of the more numerous or democratical section. Gratitude at large, is a sentiment which, in every other breast, (not to speak of his own,) every individual, in proportion as he understands his interest, sees it to be his interest to cherish: in gratitude for past kindnesses, he will see the source of future ones. But for a misdeed, to the prejudice of the whole community, service rendered to an individual is no justification.
3. Fear of the reproach of perfidy. In so far as the acting in the way in question, towards the production of the sinister effect, is regarded as matter of moral obligation, in requital for the sinister benefit, the whole transaction on both sides being considered as forming the subject-matter of a contract, superadded to the reproach of ingratitude, will on this same occasion, be the reproach of perfidy. Men ought to requite services, is a general rule. Men ought still more punctually to requite services, when engaged for by contract, is another general rule. Unbounded in its extent is the benefit derived from the observance of both these general rules. Either of them would suffice for the destruction of society, were it not narrowed by certain exceptions. But the good from the observance of the general rule, meets the eye much oftener than does the evil from the non-observance of the exceptions. In whatsoever shape or degree an act is mischievous, an engagement to bear a part in the commission of it, does not do away the mischievousness of it.*
Great and nearly irresistible has been, and is but just ceasing to be, the influence of the members of the aristrocatical section of the public-opinion tribunal, over the minds of the members of the democratical section: not only the influence derived from power—the influence of will on will; but the influence derived from knowledge, the influence of understanding on understanding. On every part of the field of action, have the subject many found themselves under the necessity of deriving their conceptions and their judgments, from the reports made to them, by the ruling and influential few: and with no exception, capable as yet† of operating with any considerable influence, have these reports contained anything but what was false, and in effect, if not in intention, delusive, causing Edition: current; Page: [71] the people to regard as conducive to their interests, those practices which were most adverse to those same interests: practices having for their effect the establishment of misrule, and of corruption as an efficient cause of it.
As in the case of mutually beneficial and innoxious engagements, mischief and vice consists in the breach of them, so in the case of those so extensively noxious engagements, does mischief and vice consist in their observance. Of the non-observance of a class of engagements, the ultimate effect is—that the practice of entering into such engagements is at an end. This is exactly the result conducive to human happiness—the result desirable in the case of all preponderantly noxious engagements. If, for example, notwithstanding all engagements, no favours were by any possessor of patronage ever obtained at the hands of any member of the legislative body, nor therefore at the hands of a majority of that body, no part of his patronage would ever be made to take that direction: it would be applied, the whole of it, to his own particular purposes, good or bad, whichever they happened to be: but, at any rate, it would not be applied to that worst of bad purposes, causing the legislative to add depredation to depredation, and oppression to oppression, by giving constantly increasing patronage, and undisturbed impunity, to the executive.
Of all the members of the community, taken in the aggregate, it is therefore no less decidedly their interest, that in regard to all such noxious engagements, unfaithfulness should be entire, than it is, that in regard to all preponderantly beneficial ones, observance and faithfulness should be entire.
From sense of interest come all notions of honour. There are, says a common observation, notions of honour among thieves. How should it be otherwise? Gangs of robbers could not have existence unless engagements between member and member, for the purpose of the common pursuit, had existence.
But if by fidelity to honest engagements between man and man, entered into for an innoxious purpose, the happiness of mankind is promoted,—so by fidelity to engagements between thief and thief, entered into for the purpose of thieving, the happiness of mankind is diminished.
Of the matter of corruption, the elements may be distinguished into the immediately applying and the unimmediately applying. By those which are immediately applying, understand those which are themselves among the objects of general desire, or to which some of those same objects are attached: those the application of which is unimmediate, are those in which the immediate objects have their source.
Of those which are unimmediate, the most fruitful by far are, wars and distant dependencies. Wars and distant dependencies beget offices: offices, corrupt obsequiousness: corrupt obsequiousness on the part of all who seek them, as towards all who give them.
Wars are alike employable in all monarchies. Distant dependencies are peculiar to those which are in possession of a quantity more or less considerable of naval force.
Where, as in the latter case, situation is favourable, these sources of corruptive influence are necessarily productive of each other. Never can war take place, but the quantity of the matter of corruption must increase: successful or unsuccessful, this is among the number of the effects of it. Be it ever so unsuccessful, it makes addition to the number of offices: of military offices, obviously: and in the train of military offices, come civil ones. In so far as credit has place, it adds to the quantity of public debt, and of the taxes imposed for the payment of the interest of it. Public debt requires offices for the payment of it: taxes require offices for the extraction of them. In a monarchy possessing distant dependencies, if a war in which it is engaged, proves successful, an addition to the extent or number of those dependencies, is a natural and frequent consequence of the success. To every other such government, each such dependency is an object of envy, and among all together a bone of contention: hence it is, that as war begets distant dependencies, so do distant dependencies beget wars.
In both these instances, diametrically opposite to the universal interest, is that particular interest by which in every monarchy the rulers are so uniformly governed. No war has there ever been by which the citizen subjects have not been losers: no war has there ever been by which their rulers have not been gainers. No distant dependency, by the possession of which the people at whose expense it has been acquired, are not losers: no such possession by which the rulers, by whom whether acquired or no it is retained, are not gainers.
In the literature of most states may be seen a sort of periodical work, in which is represented the state of the official establishment: the offices that have place in the state, being designated by their respective titles, with or without a designation, complete or incomplete, of the masses of emolument and other objects of desire respectively attached to them, and the individuals by whom, at the time of the publication in question, these offices are respectively possessed. In these books may be seen the matter, the maximization of which has in every government but one, been hitherto the primary, not to say the sole end of government, in the breasts of the respective rulers.
For bringing to view the influence of the matter of corruption upon public functionaries, the shortest course that can be pursued is to commence with that mass which, in a mixed and limited monarchy, is in the hands of the monarch: from thence a conception of the extent and operation of it, in inferior hands, may be formed without difficulty.Edition: current; Page: [72]
In its composition it includes all those external instruments of felicity which constitute the necessary instruments of government, together with those which not being needed nor capable of having place but under a bad government, are exclusively the produce of a bad government. In addition to power and money, it accordingly includes factitious honour and dignity, vengeance and official ease.
These objects, not only does the monarch possess and employ for his own gratification, but he possesses the faculty of making communication of them to all those who occupy in relation to him, the situation either of instruments or favourites.
Prodigious is the quantity of public money a man may receive—receive and, in a certain sense, convert to his own use, if he can but content himself with receiving it by any hand other than his own: prodigious in proportion, the power he may thus exercise: prodigious the degree of servility and baseness he may thus surround himself with: prodigious the contribution he may be able to make to the treasury of public mischief and misrule. No part of the money thus received being seen to go, nor perhaps actually going, into his own purse, the consequence is—that to any amount the praise of disinterestedness may be attached to the career of rapacity thus run, the praise of independence to a course the most abject and dependent.
The influence exercised over those who are actually partakers in the good things conferred by it, is inconsiderable, in comparison with that exercised over those who never receive any share in it. In the train of one single possessor there is no saying how many expectants are attached.
Numerous, in many cases, are the links, one beneath another, in what may be termed the chain of patronage or dependence. By the monarch an office is conferred, to which is attached the power of placing, with reference to, suppose twenty offices: to each of which such offices, is attached the power of placing, with relation to twenty more offices, and so on: and to the possessor of every office in each such rank, is attached a swarm of expectants, as above.
Of these good things, so great is the variety, that there is something capable of suiting every taste, and among them are those with which a man may suit himself, and at the same time be receiving the praise of disinterestedness. Those whom no lucrative places may gain over, a ribbon may subdue.
If with relation to the individuals, on whom it operates, the power in question were confined to the placing of them in the several desirable situations, vast would be the influence exercised by it. But in relation to no small portion of the aggregate (probably the largest proportion) is annexed the power of displacing. But in comparison with the power of displacing, the power of placing is comparatively trifling. In the mere power of placing, no power of punishment is included. In the power of displacing, with reference to a situation of the kind in question, is included a power of punishment far superior in its effect, to any power commonly exercised under that name. Excessive would be deemed (and on that account interdicted by the bill of rights) a pecuniary punishment, by which a man in England should be deprived of a situation equal in value to the least valuable situation in any of the government boards.
Not till after trial, nor without conviction, can any punishment which is called punishment be inflicted. No conviction, no trial is requisite in the other case: without opportunity of defence, without exposure to the eye of the public-opinion tribunal, without a moment's warning, it may be inflicted at any time.
It enjoys to a prodigious degree an exemption from the controlling power of the public-opinion tribunal: that power to the operation of which, the exercise of coercive power is in a much greater degree subjected.
For the production of any corruption aimed at, no act on the part of the corrupter-general is necessary, Therefore no act is there, to which disapprobation can attach itself.
This unofficial judicatory is scarcely less subject to his corruptive influence than are the official judicatories. Nothing can he ever do, or abstain from doing,—no course, on any occasion, can his actions take, but laudation and admiration follow it, and attach upon it. Laud is bestowed upon him, for everything he parts with, and for everything he keeps in his own hands, especially if and in so far as, others are let in to a participation of the benefit of it. Not an article can he consume or use for his own personal gratification, but from various quarters, praise follows him for what is done. In the first place come all those who derive a profit from the supplying him with it, or hope to do so with similar articles. To act thus, is called conferring a benefit on trade, and in the pleasure of conferring this public benefit, he is said to find his only motive. By every such act, he moreover adds to the splendour and lustre of the crown and the throne: and by all to whom the constitution is an object of attachment, the necessity of this splendour and this lustre is a fundamental and unquestionable article.
If, and as often as, money or money's worth to any amount is parted with by him, without any immediate receipt or expectation of an equivalent in any determinate shape, or at any determinate time, the field of praise receives another great enlargement. Then in full chorus may be heard joining, all those to whom munificence generosity and liberality, are objects of sympathy and admiration. Not a particle of money can he thus give, which has not been extorted from unwilling contributors, not a particle can he give, which will not be reimbursed to him in the same manner. Edition: current; Page: [73] In his situation, not a particle can he ever give, which is not given at the expense of others. But his case is confounded with that of those benefactors, who have no means of giving but at their own expense. Of a half-starved beggar, who should share a penny just received from the hand of casual charity, with another in the same condition, the so dearly exercised beneficence would remain unknown and unapplauded: and even though it were universally known, faint is the applause that would be vouchsafed to self-denying liberality when exercised on so minute a scale. To help to gain a million sterling for paying debts already contracted, and make way for contracting more, suppose a monarch promising to the public a collection of books,* purchased at the public expense, of no use to the purchaser, and of no determinate and assignable use to anybody else—the praises of royal munificence will be sounded in the assembly of the legislature, and echoed wherever the fame of the virtue reaches.
As to the prevention or even diminution of corruption, nothing in a government so constituted can be more plainly or everlastingly impossible. Of all arrangements employed for the professed purpose of excluding it, or diminishing it, by means of punishment, the effect, if any, is to give increase to it, or to increase the mischievousness of it.
The only case to which punishment can attach to it, is that where a direct bargain is made. But in the case of any such bargain, the quantity of mischief will have its express limits: put out of the case the bargain, the quantity will be unlimited. The greater the service I render to the giver of good gifts, the greater is the value of the good gifts which I may reasonably expect to receive. Such is the reasoning which, in a breast so situated, can never fail to be made.
At the same time by the profession and apparent endeavours thus made to put an end to a practice, to the increase of which, or at least the maintenance, all real endeavours are directed, the effect if any, is to give strength to the delusion employed, to secure submission to the misrule. By no man can support have been given to any such pretended or supposed remedy, without proof made of inaptitude opposite to one or other branch of appropriate aptitude: in case of insincerity, of the branch opposite to moral aptitude: in case of sincerity, of the branch opposite to intellectual aptitude.
In a pure monarchy, (it has been already stated,) the operation of corruption has little place, in comparison with what it has in a mixed and limited monarchy.
There is no subject-matter for it to work upon. In a mixed and limited monarchy, this subject-matter is essentially present. This subject-matter is the body which represents, or is dealt with as if it represented, the people, and which as such is let in for a share in the exercise of the sovereign power of legislation. Without the concurrence of this body, the sinister desires of the monarch cannot receive their gratification: with that concurrence they may do so to an unlimited extent. But in an unmixed and unlimited monarchy, they may and do receive their gratification to an unlimited extent, without the concurrence of any such body: for no such body has place in it.
Not that even in the most unlimited monarchy, corruption is without its influence, nor therefore altogether without its use. It contributes to the mass of that sinister influence, but for which many, whom it has the effect of preventing, might otherwise embrace the cause of the universal interest.
In England, in virtue of the pre-established harmony, so long as the Constitution stands, corruption with its etceteras is predestinated to go on in a state of perpetual advance: never to be stationary, much less retrograde.
In this or that department an enormous abuse is brought to light. A member in opposition moves for papers to serve as documents with a view to the moving for a committee to inquire and report. On this occasion, till of late years, the practice was to resist the inquiry in limine—to refuse the papers. This practice continues at present; but upon the whole, such a facility in the granting them has place as forms a striking contrast with the ultimate result.
The case is, and so it has been found, that on this ground, in relation to their own sinister interest, the government cannot do wrong. If the papers are refused all subsequent trouble is saved: though they gain nothing, yet nothing do they lose: for as to reputation of probity for this long time none have they had to lose. If the papers are granted, then instead of loss comes positive gain of abuse. Of the mass of abuse a portion more or less considerable is brought to light: placed in so strong a glare as to be wholly uncontrovertible. Now comes the season of candour. The seat of the abuse being in the misconduct of the subordinates of government, it belongs to government to rectify what is amiss in the conduct of those its subordinates. A commission is now wanted: a commission, i.e. a set of commissioners, all of them of course named in one or other of two ways, by government. But this being a public service—a service of considerable labour—a labour too, the quantity of which will naturally be apt to increase with the quantity of abuse, remuneration becomes necessary: it being without example that, in some shape or other, it should not be given, it is given as of course, no argument being regarded as necessary to be produced in support of it: the only argument, if any, regards the quantum and the shape.
As to the modes of nominating these commissioners, Edition: current; Page: [74] there are two; by the Crown, or by Parliament: by the Crown, is by the Ministry in their closet; by the Parliament, is by the Ministry in the House of Commons; the result being equally at command in both instances, a question that naturally occurs is, wherein can consist the difference? what is it that should render it an object to either party, that either course should be chosen in preference to the other?
To give the answer, another distinction must be brought to view. In the number of these commissioners it is thought or not thought advisable by government to place a member of Parliament: a member of Parliament, i. e. one who is already of the number of their own adherents, or one who by this means is to be made so. If there be no member of Parliament, all they get by the business is the confirmation of the abuse, the impunity of those concerned in it, and the increase given to the quantity of the matter of corruption employed as such: if a member of Parliament, who was not before of the number of their adherents, is put into the commission; in that case, they get the additional advantage of this addition to their list.
In every political state, in which there exists a legislative body with an executive authority in other hands, there are two parties in the representative body: one composed of persons by whom the sweets of office are either possessed or expected to be received: call these the Ins. Another composed of those, by whom no expectation of favour in that shape is entertained, and whose whole course is accordingly directed, in the endeavour to gain possession of the aggregate mass of those sweets of office, and to that end, to the putting out of possession, the actual possessors: these are the Outs.
The Outs are not less in an unquestionable state of dependence than the Ins: nor in their case is the dependence less corruptive than in the other. In the state of the dependence, there is indeed some difference in the two cases. In the case of the Ins, the individuals on whom the dependence is, are more determinate: in the case of the Outs, less determinate. Still, however, neither in the nature of the dependence, nor (except in regard to the degree of corruptive efficiency) in its effects, is there in the two cases any difference.
In both situations, the temptation to yield to, and be determined by, the sinister influence, applies to every individual member: nor in the instance of any one such individual, on any occasion, can the probability of his resisting it, and not being determined by it, be asserted.
At the same time, it is on both sides, on all public occasions a universal practice of every individual, not only to deny the actual prevalence of the corruptive influence in question on each particular occasion, but the possibility of its prevalence on any occasion in his instance.
In denying the existence of this prevalence, the sort of phrase commonly employed is that by which purity of motives is professed.
True it is, that on this or that occasion, thus much it may be competent to a man (always on the supposition, that by the nature of the motives by which his conduct is determined, the merits of the question are in some determinate way affected,) to make known and thence to assert, namely,—that on the occasion in question, he does not stand exposed to sinister interest in any shape; or if there be any shape, in which he is exposed to sinister interest, that sinister interest has for its counterpoise, a right and proper interest, by which it is overpowered.
When the phrase corruptive influence is employed, it is by the laws and institutions themselves that the corruptive influence must be said to have been applied: applied to the individual in such manner as to have given birth to the sinister effect.
Dear in this case, it may be imagined how dear, both to corrupters and corrupted, are these same laws and institutions.
In this case it is not common for complaints of corruption to have place to any considerable extent: in general scarcely is it seen, or so much as suspected, that in consequence of this state of things, any considerable mischief has place: every man, as early as he has been taught anything, having been taught to regard as objects of the most prostrate veneration and the most boundless confidence, those same sources and receptacles of corruption—those same instruments of depredation and oppression.
At the same time this is the case in which mischief has place in a quantity, greater by far than in the opposite case. It has place to a greater extent, and throughout the whole of its extent it is effectually out of the reach of all cure, or even of restraint; for no one individual is perceptible on whom it is possible, without the appearance of injustice, to fix in any shape the imputation of blame.
But if neither open accusation, nor so much as secret imputation, can have place, still less can remedy in any shape have place. So far, therefore, as the corruption has place in this shape, the system of misrule by means of corruption may be said to have been raised to the very pinnacle of perfection.
The greater the extent to which corruption in this shape has place, the more conclusively probative is the circumstantial evidence by which it is proved, that on the part of the persons exercising in chief the powers of government, (and by whom, in the whole or in part, the profit from the mass of corruption thus constituted has been reaped,) the corruption that has place, is the fruit of design: that they know what they are about, and are fully conscious of the evil that has place, and that they, by being supporters, are, for the time being, authors of it.
In this case the corruption may be said to Edition: current; Page: [75] be single-seated: or, borrowing an expression from botany, monœcious. The persons thus corrupted, namely the persons reaping the sinister and dishonest profit, may be said to be self-corruptors, self-corrupted: and a species of misdeed styled self-corruption may be said to have place and to be habitually committed.
Where the corruption is double-seated, or say diœcious, the nature of it is more easily conceived. In this case the corruption is reciprocal: by the corruptor and the corruptee a sinister benefit is either reaped or expected to be reaped.
Self-corruption always has place, in the case where the two powers, legislative in chief, and executive in chief, have place in one and the same hand.
This is as truly a case of corruption as that where it is double-seated: by the hand of power a benefit is reaped, and it is at the expense and by the sacrifice of the universal interest that it is reaped. With how much more facility the sinister private benefit, is in this case reaped, than in the other case, and the sinister public effect produced, is sufficiently manifest.
In the present case, there is no room for self-corruption in the highest grades: by the supposition, the legislative power is in one set of hands, the power of patronage in another.
In any one of these two departments, self-corruption may have place. In the executive, a superordinate, to save himself from providing at his own expense for a son of his, places him, though unapt, in a situation under him. This is as truly an instance of corruption, as if to a stranger he had sold the place for what it would bring, and put the money into his own pocket: the prime minister, for example, appoints a coward or drunken son to the command of an army.
Being engaged in the carrying on a manufacture, or having a son or other near relative of his who is so engaged, an influential member induces the Legislature to pass a probative or restrictive law, having for its object, the preventing the rest of the community from being supplied, with the sort of article in question, in better quality, or on cheaper terms. Behold here, an instance of self-corruption in the Legislature.
In the Judiciary department, the whole mass of that spurious sort of law which goes by the name of unwritten or common law, is the product of self-corruption. The judicial power entrusted to the Judges, is employed in lodging legislative power in their own hands. To the field of this power, scarce are there any assignable limits: scarcely is it distinguishable from that of the legislative. By means of it the Parliament of Paris, in the middle of the seventeenth century, contended with the Regent for the Sovereignty.
If power were all, and power had no tendency to beget money, here would be matter of corruption abundantly sufficient to produce the sinister effect. But wherever there is power, money cannot fail to follow it. Under the name of fees, Judges impose taxes on the suitors, denying protection and security against injury to all those who are not able to pay those taxes—that is to say, the vast majority of the inhabitants of the state. Formerly, the head judicatory in France, the Parliament of Paris, set such a price upon their definitive judgments that, for want of customers, they found themselves under the necessity of giving it up in particular instances, by selling a something at much less than an equivalent, as they could make it on cheaper terms. In Scotland, the Court of Session, taking French judicature for their example, have followed in this particular the same course.
By this in England have been produced the enormous emoluments of the higher judges: and thence the denial of what is called justice both in England and Ireland.
By the supreme and acknowledged Legislature, acting and acknowledged in that character, this usurpation is connived at.
Thus much as to the incurable nature of corruption: now as to the extent given to its influence. Observe the several classes which, by the nature of their situations, are subjected to the operation of it:
1. The several members of the legislature: and in the instance of every one of them, every individual who has, or supposes himself to have, any connexion with him, by any adequate tie of self-regarding, or though it be but sympathetic interest.
2. The several connexions, in like manner, of the administrative chief himself.
3. The several ministers, heads of the several departments of the administration, with their several clusters of connexions, as above.
4. All individuals who look either to the prime minister, or to any of the sub-ministers, or to any of their subordinates having locative power, with reference to official situations under them—these and their several connexions.
Let it not be said—this, then, is an objection against a representative democracy. For, suppose any other form of government, the case is beyond comparison worse.
Although the complete exclusion of corruption is too much to hope for, what is not too much to hope for is, the bringing it about to a degree less than it exists at present even in the United States: and though it were never to be reduced to an inferior degree, if it could but be brought down to that degree in every political state, a reduction to that extent might be contemplated with exultation by a lover of mankind.
For reducing its evil effects to a minimum, several arrangements present themselves: one consists in reducing to its minimum the quantity of the matter of good capable of operating in the character of matter of corruption: another, in providing a terminative remedy, by Edition: current; Page: [76] giving, as above, to the constitutive, the power of removing from the establishment unapt members, in any number, as soon as may be after their inaptitude has become, in the judgment of that authority, sufficiently manifest. A third expedient consists in the bringing to bear, in undiminished force, the power of the public-opinion tribunal upon the conduct of the individual by whom, in each instance, the location is performed: vesting the power of location in the hands of a single functionary, and no more than one, much less in any such large number as shall constitute what in England is called a Board.
This last arrangement, if adopted, would put an exclusion upon the administrative, that is to say, upon the locative branch of he power of the senate in the constitution of the United States.
Thus in act, every form of government, except where the only possible antiseptic system is applied, and in tendency, even where it is applied, the whole official establishment is a corruptive establishment. To establish the constitution, is to establish a system of corruption by law. Well, and with strict truth, may it be said to be by law: for by constitutional law it is planted, and by penal law it is supported and maintained; and by law in neither ever has been, nor is, nor ever can be, excluded.
The process of delusion may be considered either with reference to the class of persons operated on by it, or with reference to the instruments by which, or by means of which, the operation is performed, and the effect produced.
The class of persons on whom the most important corruptive influence operates, are the representatives of the people: the class of persons on whom the most important effects of delusive influence are performed, are the people themselves. Not that in the case of corruptive influence the effects do not spread far and wide among the people: not that in the case of delusive influence its effects are not, to an extent more or less considerable, produced on the representatives themselves. Essentially and mutually concomitant, during the whole of that progress, these two supporters of misrule go hand in hand, and increase the force and efficiency of each other. But of corruption, the principal and direct use is, to engage the representatives of the people to betray their trust, and sell themselves and the people to the universal corrupter—the monarch, in his capacity of corrupter-general: of delusion, the principal and direct use is, to engage the people to acquiesce in the breach of trust, and submit to be sold, oppressed, and plundered.
The instruments by which delusion may be produced, in company with corruption, are principally of that sort which operate by some special association which they have with the condition of the great pampered ruler: of this sort are the trappings of monarchy: fruits or indications of the matchless opulence so constantly attached to supreme power when placed in a single hand: the gorgeous palaces, the glittering throne, and still more glittering crown. Only as examples can these elements serve; for the multitude and variety of them is inexhaustible.
The objects of delusion are, to cause men to take an improper end for the proper end of government: and to entertain erroneous conceptions respecting the dispositions of the persons exercising the powers of government.
For this purpose, discourse is employed, of the laudatory kind, applied indiscriminately to all persons participating in the exercise of the powers of government: the praise rising according as the place assigned to the person in question rises in the scale of excellence; that is, according to the money, power, and factitious honour attached to it. Thus the character always attributed to the monarch of England is—most excellent, most gracious, most religious, and most sacred.
To this head belong those discourses by which credence is endeavoured to be gained for those false conceptions which have been brought to view, namely, that by which the happiness of this almost superhuman person is stated as an apt object of regard and solicitude, to the exclusion or preference of the happiness of all besides: that by which the happiness of all besides is represented as being, to the exclusion of his own, or in preference to his own, the object of his regard.
Amongst the instruments of delusion employed for reconciling the people to the dominion of the one and the few, is the device of employing for the designation of persons, and classes of persons, instead of the ordinary and appropriate denominations, the names of so many abstract fictitious entities, contrived for the purpose. Take the following examples:
Instead of Kings, or the King,—the Crown and the Throne.
Instead of Churchman,—the Church, and sometimes the Altar.
Instead of Lawyers,—the Law.
Instead of Judges, or a Judge,—the Court.
Instead of Rich men, or the Rich,—Property.
Of this device, the object and effect is, that any unpleasant idea that in the mind of the hearer or reader might happen to stand associated with the idea of the person or the class, is disengaged from it: and in the stead of the more or less obnoxious individual or individuals, the object presented is a creature of the fancy, by the idea of which, as in poetry, the imagination is tickled—a phantom which, by means of the power with which the individual Edition: current; Page: [77] or class is clothed, is constituted an object of respect and veneration.
In the first four cases just mentioned, the nature of the device is comparatively obvious.
In the last case, it seems scarcely to have been observed. But perceived, or not perceived, such, by the speakers in question, has been the motive and efficient cause of the prodigious importance attached by so many to the term property: as if the value of it were intrinsic, and nothing else had any value: as if man were made for property, not property for man. Many, indeed, have gravely asserted, that the maintenance of property was the only end of government.
One of the causes of the delusion which attributes to the higher orders pre-eminence in relative moral aptitude, i. e. in effective benevolence, is the association by which men are led to regard a man's benevolence as being in proportion to his beneficence.
Were this, or any thing like it, the true ratio, or in any degree approaching to the truth, the richest would have, against the poorest, a complete monopoly: in the merit constituted by the possession of this quality, the poorest would be altogether without a share.
England contains several individuals, whose incomes respectively have been between £50,000 a-year, and £200,000. Suppose any such opulentist disposed to employ his money in the purchase of praise, and to employ 10,000 a-year in the purchase of it, what bounds could be set to the quantity he could command of it?
A man who has but twenty pounds a-year to live on, suppose him disposed to expend a tenth part of his income in the purchase of this brilliant commodity, how much would he be able to get for it?
Would you see effective benevolence in perfection,—look to the shillings, sixpences, and pence, given to the men who have been persecuted for the cause of the people. In the hearts of the givers, if anywhere, would you find effective benevolence.
Compare with their offerings the offerings made by men who, while overflowing in wealth and luxury, yet pretend affection for the same cause.
Other causes of delusion are—arrogance in official language: display of irresistible power: pretence to superior appropriate aptitude in any of its branches. In particular, pretence to matchless wisdom: of matchless carefulness for the morality and felicity of subjects. Add to these, peculiarity with or without expensiveness in official habiliments.
By fiction, in the sense in which it is used by lawyers, understand a false assertion of the privileged kind, and which, though acknowledged to be false, is at the same time argued from, and acted upon, as if true.
Belonging to it are various characteristic features.
It has never been employed but to a bad purpose. It has never been employed to any purpose but the affording a justification for something which otherwise would be unjustifiable. No man ever thought of employing false assertions where the purpose might equally have been fulfilled by true ones. By false assertions, a risk at least of disrepute is incurred: by true ones, no such risk.
It is capable of being employed to every bad purpose whatsoever.
It has never been employed but with a bad effect.
It affords presumptive and conclusive evidence of the mischievousness of the act of power in support of which it is employed.
It affords presumptive and conclusive evidence of the inaptitude of the form of government in support of which it is employed, or under which it is suffered to be employed.
It affords presumptive and conclusive evidence of moral turpitude in those by whom it was invented and first employed.
It affords presumptive and conclusive evidence of moral turpitude on the part of all those functionaries, and their supporters, by whom it continues to be employed.
It affords presumptive and conclusive evidence of intellectual weakness, stupidity, and servility, in every nation by which the use of it is quietly endured.
In regard to fiction, two sources of service require to be noted: One is the extent of the sinister service rendered; the other is the extent of the class of persons to whom the service is rendered.
In respect of the extent of the service rendered, the use of fiction may be distinguished i