The Online Library of Liberty

A project of Liberty Fund, Inc.

• Principles of Judicial Procedure, With the Outlines of a Procedure Code.
• Note By the Editor.
• Preface.
• Introduction.
• Chapter I.: General View—ends of Judicature.
• Chapter II.: Ends Apt and Unapt.
• Chapter III.: Procedure—its Relation to the Rest of the Law.
• Chapter IV.: Judiciary Establishment.
• Chapter V.: Procedure—its Subject-matters.
• Chapter VI.: All-comprehensive Arrangements.
• Chapter VII.: Practical General Rules.
• Chapter VIII.: Judicial Application.
• Chapter IX.: Proxies.
• Chapter X.: Judicial Communication.
• Chapter XI.: Evidence.
• Chapter XII.: Initiatory Hearing.
• Chapter XIII.: Defence, How Elicited.
• Chapter XIV.: Suits, Their Sorts.
• Chapter XV.: Suits, Continuance Of.
• Chapter XVI.: Suits—termination.
• Chapter XVII.: Suits, Their Stages.
• Chapter XVIII.: Means of Execution.
• Chapter XIX.: Counter-security.
• Chapter XX.: Remedies,—compensation.
• Chapter XXI.: Judicial Transfer.
• Chapter XXII.: Prehension.
• Chapter XXIII.: Jury-trial.
• Chapter XXIV.: Special Juries.
• Chapter XXV.: Grand Juries.
• Chapter XXVI.: Quasi-jury.
• Chapter XXVII.: Recapitulatory Examination, Or Quasi-trial.
• Chapter XXVIII.: Appeal and Quasi-appeal.
• Chapter XXIX.: Natural and Technical Systems Compared.
• Appendix A.: Initial Sketch of the Procedure Code.
• Appendix B.: Account-taking Judicatories.
• Appendix C.: British India—jury System.
• From the Right Honourable Sir Alexander Johnston, to the Right Honourable Charles W. Williams Wynn, President of the Board of Controul.
• The Rationale of Reward.
• Advertisement By the Editor.
• Remarks By Mr. Bentham.
• Preliminary Observations.
• Book I.—: Of Rewards In General.
• Chapter I.: Definitions.
• Chapter II.: Matter of Reward—sources.
• Chapter III.: Of Reward and Punishment Combined.
• Chapter IV.: Of the Union of Interest With Duty, and of Self-executing Laws.
• Chapter V.: Matter of Reward—reasons For Husbanding.
• Chapter VI.: Remuneration Ex Post Facto.
• Chapter VII.: Punition and Remuneration—their Relations.
• Chapter VIII.: Remuneration—where Hurtful.
• Chapter IX.: Remuneration—where Needless.
• Chapter X.: Proportion As to Rewards.
• Chapter XI.: Choice As to Rewards.
• Chapter XII.: Procedure As to Rewards.
• Chapter XIII.: Rewards to Informers.
• Chapter XIV.: Rewards to Accomplices.
• Chapter XV.: Competition As to Rewards.
• Chapter XVI.: Rewards For Virtue.
• Chapter XVII.: Accompaniments to Remuneration.
• Book II.—: Rewards Applied to Offices.
• Chapter I.: Salary—how a Reward.
• Chapter II.: Rules As to Emoluments.
• Chapter III.: Fees and Perquisites—none.
• Chapter IV.: Minimize Emolument.
• Chapter V.: No More Nominal Than Real.
• Chapter VI.: Couple Burthen With Benefit.
• Chapter VII.: By Emoluments Exclude Corruption.
• Chapter VIII.: Give Pensions of Retreat.
• Chapter IX.: Of the Sale of Offices.
• Chapter X.: Of Qualifications.
• Chapter XI.: Of Trust and Contract Management.
• Chapter XII.: Of Reforms.
• Book III.—: Reward Applied to Art and Science.
• Chapter I.: Art and Science—divisions.
• Chapter II.: Art and Science—advancement.
• Chapter III.: Art and Science—diffusion.
• Appendix.
• Leading Principles of a Constitutional Code, For Any State.
• Section I.: Ends Aimed At.
• Section II.: Principal Means Employed For the Attainment of the Above Ends.
• Liberty of the Press, and Public Discussion.
• Advertisement.
• Jeremy Bentham to the Spanish People.
• Letter I.: On the Liberty of the Press—the Approaching Eight Months’ Sleep of the Cortes—and the Exclusion of Experience From the Succeeding Cortes.
• Letter II.: On the Liberty of Public Discussion In Free Meetings.
• Letter III.: On the Liberty of Public Discussion In Free Meetings—continuation From Letter II.
• Letter IV.: On the Liberty of Public Discussion In Free Meetings—continuation of the Subject From Letter III.
• An Essay On Political Tactics, Or Inquiries Concerning the Discipline and Mode of Proceeding Proper to Be Observed In Political Assemblies: Principally Applied to the Practice of the British Parliament, and to the Constitution and Situation of the Nati
• Chapter I.: General Considerations.
• Chapter II.: Of Publicity.
• Chapter III.: Of the Place of Meeting and Its Dependencies.
• Chapter IV.: Of What Concerns the Members Present At a Legislative Assembly.
• Chapter V.: Of the Presidents and Vice-presidents Belonging to Political Assemblies.
• Chapter VI. *: of the Mode of Proceeding In a Political Assembly In the Formation of Its Decisions.
• Chapter VII.: Of the Proposal of Measures For Adoption.
• Chapter VIII.: Of the Different Acts Which Enter Into the Formation of a Decree.
• Chapter IX.: Of the Promulgation of Motions—of Bills—of Amendments, and Their Withdrawment.
• Chapter X.: Of the Drawing Up of Laws.
• Chapter XI.: Of Debates.
• Chapter XII.: Of Amendments.
• Chapter XIII.: Of Dilatory Motions, Or Motions of Adjournment.
• Chapter XIV.: Of Voting.
• Chapter XV.: Of Committees.
• Chapter XVI.: Of Formulas.
• The Book of Fallacies: From Unfinished Papers of Jeremy Bentham. Edited By a Friend.
• Preface By the Editor of the Original Edition.
• The Book of Fallacies.: Introduction.
• Section I.: A Fallacy, What.
• Section II.: Fallacies, By Whom Treated of Heretofore.
• Section III.: Relation of Fallacies to Vulgar Errors.
• Section IV.: Political Fallacies the Subject of This Work.
• Section V.: Division Or Classification of Fallacies
• Section VI.: Nomenclature of Political Fallacies.
• Section VII.: Contrast Between the Present Work and Hamilton’s “parliamentary Logic.”
• Part I.: Fallacies of Authority, the Subject of Which Is Authority In Various Shapes, and the Object to Repress All Exercise of the Reasoning Faculty.
• Chapter I.
• Chapter II.: The Wisdom of Our Ancestors; Or Chinese Argument—( Ad Verecundiam. )
• Chapter III.: Fallacy of Irrevocable Laws.
• Chapter IV.: No-precedent Argument—( Ad Verecundiam. )
• Chapter V.
• Chapter VI.: Laudatory Personalities— (ad Amicitiam.)
• Part II.: Fallacies of Danger, the Subject-matter of Which Is Danger In Various Shapes, and the Object to Repress Discussion Altogether, By Exciting Alarm.
• Chapter I.: Vituperative Personalities— (ad Odium.)
• Chapter II.
• Chapter III.: Fallacy of Distrust, Or, What’s At the Bottom?—( Ad Metum. )
• Chapter IV.: Official Malefactor’s Screen—( Ad Metum. )
• Chapter V.: Accusation-scarer’s Device—( Ad Metum. )
• Part III.: Fallacies of Delay, the Subject-matter of Which Is Delay In Various Shapes—and the Object, to Postpone Discussion, With a View of Eluding It.
• Chapter I.: The Quietist, Or “no Complaint”—( Ad Quietem )
• Chapter II.: Fallacy of False Consolation— (ad Quietem.)
• Chapter III.: Procrastinator’s Argument ( Ad Socordiam. )
• Chapter IV.: Snail’s-pace Argument.—( Ad Socordiam. )
• Chapter V.: Fallacy of Artful Diversion—( Ad Verecundiam. )
• Part IV.: Fallacies of Confusion, the Object of Which Is, to Perplex, When Discussion Can No Longer Be Avoided.
• Chapter I.: Question-begging Appellatives—( Ad Judicium. )
• Chapter II.: Impostor Terms—( Ad Judicium. )
• Chapter III.: Vague Generalities—( Ad Judicium. )
• Chapter IV.: Allegorical Idols—( Ad Imaginationem. )
• Chapter V.: Sweeping Classifications—( Ad Judicium. )
• Chapter VI.: Sham Distinctions—( Ad Judicium. )
• Chapter VII.: Popular Corruption—( Ad Superbiam. )
• Chapter VIII.: Observations On the Seven Preceding Fallacies.
• Chapter IX.: Anti-rational Fallacies—( Ad Verecundiam. )
• Chapter X.: Paradoxical Assertion—( Ad Judicium. )
• Chapter XI. :non-causa Pro Causa: Or, Cause and Obstacle Confounded—( Ad Judicium. )
• Chapter XII.: Partiality-preacher’s Argument—( Ad Judicium. )
• Chapter XIII.: The End Justifies the Means—( Ad Judicium. )
• Chapter XIV.: Opposer-general’s Justification:—not Measures But Men; Or, Not Men But Measures—( Ad Invidiam. )
• Chapter XV.: Rejection Instead of Amendment—( Ad Judicium. )
• Part V
• Chapter I.: Characters Common to All These Fallacies.
• Chapter II.: Of the Mischief Producible By Fallacies.
• Chapter III.: Causes of the Utterance of These Fallacies.
• Chapter IV.: Second Cause—interest Begotten-prejudice.
• Chapter V.: Third Cause—authority-begotten Prejudice.
• Chapter VI.: Fourth Cause—self-defence Against Counter-fallacies.
• Chapter VII.: Use of These Fallacies to the Utterers and Acceptors of Them.
• Chapter VIII.: Particular Demand For Fallacies Under the English Constitution.
• Chapter IX.: The Demand For Political Fallacies:—how Created By the State of Interests.
• Chapter X.: Different Parts Which May Be Borne In Relation to Fallacies.
• Chapter XI.: Uses of the Preceding Exposure.
• Anarchical Fallacies; Being an Examination of the Declarations of Rights Issued During the French Revolution.
• Advertisement.
• An Examination of the Declaration of the Rights of the Man and the Citizen Decreed By the Constituent Assembly In France.
• Preamble.
• A Critical Examination of the Declaration of Rights.
• Declaration of the Rights and Duties of the Man and the Citizen, Anno 1795.
• Observations On Parts of the Declaration of Rights, As Proposed By Citizen Sieyes.
• Principles of International Law.
• Essay I.: Objects of International Law.
• Essay II.: Of Subjects, Or of the Personal Extent of the Dominion of the Laws.
• Essay III.: Of War, Considered In Respect of Its Causes and Consequences.
• Essay IV.: A Plan For an Universal and Perpetual Peace.
• Appendix. * —junctiana Proposal.
• A Protest Against Law-taxes, Showing the Peculiar Mischievousness of All Such Impositions As Add to the Expense of Appeal to Justice.
• Supply Without Burden; Or Escheat Vice Taxation: Being a Proposal For a Saving of Taxes By an Extension of the Law of Escheat, Including Strictures On the Taxes On Collateral Succession Comprised In the Budget of 7 Th December 1795.
• Preface.
• Section I.: General Idea.
• Section II.: Order of the Details.
• Section III.: Advantages.
• Section IV.: Originality.
• Section V.: Produce.
• Section VI.: Application.
• Section VII.: Heads of Objection, With Answers. †
• Section VIII.: Existing Law.
• Section IX.: Ancient Law.
• Section X.: Blackstone.
• Tax With Monopoly; Or Hints of Certain Cases In Which, In Alleviation of the Burden of Taxation, Exclusive Privileges May Be Given As Against Future Competitors, Without Producing Any of the Ill Effects, Which In Most Cases Are Inseparable From Everyth
• I.: Stock-brokers.
• II.: Bankers.

APPENDIX.

(A.)

Book I. Ch. viii p. 210.

On Subscriptions to Matters of Opinion.

Of the two English Universities, Oxford is the most ancient and most dignified. Of its numerous statutes which are penned in Latin, as many as fill a moderate duodecimo volume are published, as the title-page declares, for the use of youth: and of these care is taken (for the honour of the government let it be spoken) that those for whose observance they are designed, shall not, without their own default, be ignorant: since, at every man’s admission, a copy is put into his hands. All these statutes, as well those that are seen as those that are not seen, every student at his admission is sworn in Latin to observe, “So help me God,” says the matriculated person, “touching as I do the most holy Gospel of Christ.”*

The barbers, cooks, bed-makers, errand-boys, and other unlettered refainers to the university, are sworn in English to the observance of these Latin statutes. The oath thus solemnly taken, there has not, we may be morally certain, for a course of many generations, perhaps from the first era of its institution, been a single person that has ever kept. Now, though customary, it is perhaps not strictly proper, as it tends to confusion and to false estimates, to apply the term perjury, without distinction, to the breach of an assertive and to that of a promissive declaration—to the breach of an oath and to that of a vow; and to brand with the same mark of infamy a solemn averment, which at the time of making it was certainly false,—and a single departure from a declared resolution, which at the time of declaring it might possibly have been sincere.* But, if they themselves are to be believed who have made the oath, and who break it,—the university of Oxford, for this century and half has been, and at the time I am writing is, a commonwealth of perjurers. The streets of Oxford, said the first Lord Chatham once, “are paved with disaffection.” That weakness is outgrown: but he might have added then (if that had been the statesman’s care) and any one may add still, “and with perjury.” The face of this, as of other prostitutions, varies with the time: perjurers in their youth, they become suborners of perjury in their old age.

It should seem that there was once a time, when the persons subjected to this yoke, or some one on their behalf, began to murmur: for, to quiet such murmurs, or at any rate to anticipate them, a practitioner, of a faculty now extinct, but then very much in vogue,—a physician of the soul, a casuist, was called in. His prescription, at the end of every one of these abridged editions of the statutes—his prescription under the title of Epinomis seu explanatio juramenti, &c. stands annexed.† This casuist is kind enough to inform you, that though you have taken an oath indeed, to observe all these statutes—and that without exception, yet, in ninety-nine instances out of a hundred, it amounts to nothing. What, in those instances, you are bound to do is—not to keep your oath, but to take your choice whether you will do that or suffer—not to do what you are bid; but, if you happen to be found out (for this proviso, I take for granted, is to be supplied) to bear the penalty. For—what now do you think your sovereign seriously wishes you to do, when he forbids you to commit murder? that you should abstain from murder at all events? No surely; but that, if you happen to be found out and convicted, you should sit quiet while the halter is fitted to your neck.

Who is this casuist, who by his superior power washes away the guilt from perjury, and controuls the judgments of the Almighty? Is it the legislator himself? By no means: that indeed might make a difference. The sanction of an oath would then not with certainty be violated; it would only with certainty be profaned. It was a Bishop Saunderson, who, in the bosom of a Protestant church, before he was made a bishop, had set up a kind of confessional box, whither tender consciences repaired from all parts to heal their scruples.

This institution, whether it were the fruit of blindness or of a sinister policy, has answered in an admirable degree, some at least of the purposes for which it was probably designed. It has driven the consciences of the greater part of those by whom the efficient parts of government are one day to be filled, into a net, of which the clergy hold the cords. The fear and shame of every young man of sense, of spirit, and reflection, on whom these oaths are imposed, must at one time or other take the alarm. What! says he to himself, am I a perjurer? If he ask his own judgment, it condemns him. What then shall he do? Perjury, were it only for the shame of it, is no light matter: if his education have been ever so loose, he has frequently heard it condemned; if strict and virtuous, he has never heard it mentioned without abhorrence. But, when he thinks of the guilt of it, hell yawns under his feet. What then shall he do? Whither then shall he betake himself? He flies to his reverend instructors in a state of desperation. “These men are older than myself,” says he; “they are more learned, they are therefore wiser: on them rests the charge of my education. My own judgment, indeed, condemns me; but my own judgment is weak and uninformed. Why may not I trust to others? See, their hands are outstretched to comfort me! Where can be the blame in listening to them? in being guided by them? in short, in surrendering my judgment into their hands? Are not they my rulers, my instructors? the very persons whom my parents have appointed to take charge of me, to check my presumption, and to inform my ignorance? What obligation am I under, nay, what liberty have I to oppose my feeble lights to theirs? Do they not stand charged with the direction of my conscience?—charged by whatsoever I ought to hold most sacred? Are they not the ministers of God’s word? the depositaries of our holy religion? the very persons, to whose guidance I vowed, in the person of my godfathers and godmothers, to submit myself, under the name of my spiritual pastors and masters? And are they not able and willing to direct me? In all matters of conscience, then, let me lay down to myself the following as inviolable rules:—not to be governed by my own reason; not to endeavour at the presumptuous and unattainable merit of consistency; not to consider whether a thing is right or wrong in itself, but what they think of it. On all points, then, let me receive my religion at their hands: what to them is sacred, let it to me be sacred; what to them is wickedness, let it to me be wickedness; what to them is truth, let it to me be truth; let me see as they see, believe as they believe, think as they think, feel as they feel, love as they love, fear as they fear, hate as they hate, esteem as they esteem, perform as they perform, subscribe as they subscribe, and swear as they swear. With them is honour, peace, and safety; without them, is ignominy, contention and despair.” Such course must every young man, who is brought up under the rod of a technical religion, distinct from morality, and bestrewed with doubts and dangers, take on a thousand occasions, or run mad. To whom else should he resort for counsel?—to whom else should he repair? To the companions of his own age? They will laugh at him, and call him methodist: for many a one who dreads even hobgoblins alone, laughs at them in company. To their friends and relations who are advanced in life, and who live in the world? The answer they get from them, if they are fortunate enough to get a serious one, is—that in all human establishments there are imperfections; but that innovation is dangerous, and reformation can only come from above: that young men are apt to be hurried away by the warmth of their temper, led astray by partial views of things, of which they are unable to see the whole: that these effusions of self-sufficiency are much better repressed than given way to: that what it is not in our power to correct, it were better to submit to without notice: that prudence commands what custom authorizes—to swim quietly with the stream: that to bring matters of religion upon the carpet, is a ready way to excite either aversion or contempt: that humanity forbids the raising of scruples in the breasts of the weak,—good humour, the bringing up of topics that are austere,—good manners, topics that are disgusting: that policy forbids our offending the incurious with the display of our sagacity, the ignorant with the ostentation of our knowledge, the loose with the example of our integrity, and the powerful with the noise of our complaints: that, with regard to the point in question, oaths, like other obligations, are to be held for sacred or insignificant, according to the fashion: that perjury is no disgrace, except when it happens to be punished: and that, as a general rule, it concerns every man to know and to remember, as he tenders his peace of mind and his hopes of fortune, that there are institutions, which though mischievous are not to be abolished, and though indefensible are not to be condemned.

A sort of tacit convention is established: “Give your soul up into my hands—I ensure it from perdition. Surely the terms, on your part, are easy enough: exertion there needs none: all that is demanded of you is—to shut your eyes, ears, lips, and to sit quiet. The topic of religion is surely forbidding enough, as well as a forbidden topic: all that you have to do then, is to think nothing about the matter: look not into, touch not the ark of the Lord, and you are safe.”

(B.)

Book I. Ch. viii. p. 211.

Mischievousness of Reward latent—Exemplifications.

When a reward is groundless, it may be either simply groundless, or positively mischievous: the act, which it is employed to produce, may be either simply useless, or pernicious.

It would be a nugatory lesson to say, that reward should not be applied to produce any act, of which the tendency is acknowledged to be pernicious; and this whether such act have been aggregated to the number of offences or not. The only cases which it can be of any use, in this point of view, to mention, are those in which the mischievousness of the act, or the tendency of the reward to produce it, is apt to lie concealed.

To begin with the cases which come under the former of these descriptions—those in which the mischievousness of the act is apt to lie concealed. One great class of public services, for which rewards have been or might be offered, are those which consist in the extension of knowledge, or, according to the more common, though obscure and imposing phrase, the discovery and propagation of truth. Now there is one way in which rewards offered for the propagation of truth (that is, of what is looked upon, or professed to be looked upon, as truth) cannot but have a pernicious tendency; and that of whatever nature be the proposed truth. A point being proposed, concerning which men in general are thought to be ignorant or divided, if a man sincerely desired that the truth relative to that point should be ascertained, and in consequence of that desire is content to furnish the expense of a reward, the natural course is—to invite men to the inquiry. “How stands the matter? Which of the two contradictory propositions is the true one?” To a question of some such form as this, he requires an answer. The service, then, to which he annexes his reward, is the giving an answer to a question—such an answer as upon examination shall appear to be a true one, or to come nearest to the truth. The tendency of a reward thus offered, to produce the discovery of the truth, is obvious: the tendency of it will at least be to produce the discovery of what to him, who puts in for the reward, shall appear to be truth. What else should it tend to produce? My aim being to establish what to you shall appear to be the truth, what other means have I of doing this, but by advancing what appears to me to be so? Accordingly, thus to apply the reward, is to promote a sincere and impartial inquiry, and to pursue the best, and indeed the only course that by means of artificial reward can be pursued for promoting real knowledge.

Another course, which has been sometimes taken, is—to assume the truth of the one of two contradictory propositions that may be framed concerning any object of inquiry,—and to make the demonstration of the truth of that proposition the condition of the reward. In this course, the tendency of the reward is pernicious. The habit of veracity is one of the great supports of human society—a virtue which in point of utility ought to be, and in point of fact is, enforced in the highest degree by the moral sanction. To undermine that habit, is to undermine one of the principal supports of human society. The tendency of a reward thus offered is to undermine this virtuous habit, and to introduce the opposite vicious one. The tendency of it may be to produce what is called logical truth, or not, as may happen; but it is, at any rate, to produce ethical falsehood: it may tend to promote knowledge or error, as it may happen; but it tends, at any rate, to promote mendacity. The proposition either is true or it is false: and, be that as it may, men are either agreed about its being true, or they are not. In as far as they are agreed, the reward is useless; in as far as they are not, it tends to make them act as if they were, and is pernicious.

It may be said—No; all that it tends to do, at least all that it is designed to do, is to call forth such, and such only, whose opinion is really in favour of the proposition, and to put them upon giving their reasons for it: it is not to corrupt their veracity, but to overcome their indolence. But whatever may be the design, the former is in fact its tendency. On the one side, they have reward to urge them; on the other, they have impunity to permit them. For, when a man declares that his opinions on a given subject are so and so, who can say that they are otherwise?—who can say with certainty, what are a man’s private opinions? And if the effect be bad, what signifies the intention? Or how, indeed, can the intention be pure, if it be seen that the effect is likely to be a bad one?

Thus would it stand, were it doubtful whether there are any persons or no, whose unbiassed opinions are on the opposite side to that on which the demonstration is sought to be procured. But the case always is, that it is clear there are such persons; that it is the very persuasion of there being such, that is the cause of offering the reward; and that the more numerous they are, the more likely it is to be offered, and the greater it is likely to be. Such, then, is the danger of promoting mendacity: to avoid which danger, it may be laid down in short terms, as a general rule, that reward should be given—not for demonstration, but for inquiry.

More than this, a reward thus applied tends always, in a certain degree, to frustrate its own purpose; and is so far, not only inefficacious, but efficacious on the other side. It does as good as tell mankind, that, in the opinion of him at least by whom the reward is offered, the probability is that men’s opinions are most likely to be on the opposite side; and in so far gives them reason to think that the truth is also on that opposite side. “People in general,” a man will naturally say to himself, “are not of this way of thinking: if they were, what need of all this pains to make them so?” This, then, affords another reason why reward should be given—not for demonstration, but for inquiry.

Such, accordingly, has been the course pursued in relation to almost every branch of science, or supposed science. The science, or supposed science of divinity, furnishes exceptions, which are perhaps the only ones. What should we say to a man who should seek to promote physical knowledge by such devices? What should we say to a man, who instead of setting men honestly and fairly to inquire whether, in regard to living powers, for example, the momentum were in the simple or in the duplicate proportion of the velocity—whether heat were a substance, or only a quality of other substances—whether blunt or pointed conductors of electricity were the safest,—should pay them for endeavouring to prove, that in living forces the momentum is in the simple proportion only, that heat is only a quality, and that blunt conductors are the safest?

In divinity, however, examples of this method of applying reward are frequent.

It may be said, that an exception ought to be made from the rule, in the cases wherein, on whichever side the truth may be, the utility is clearly on the side thus favoured. Thus there is use, for instance, in the people’s believing in the being and attributes of a God: and that even in a political view, since upon that depends all the assistance which the political can derive from the religious sanction: and that there can be no use in their disbelieving it. That there is use again, in the people’s believing in the truth of the Jewish prophecies; since upon that depends one argument in favour of the truth of that history, the truth of which is one main ground of men’s expectation of the rewards and punishments belonging to that sanction. This observation certainly deserves great attention. It exhibits a reason which there may be for making an exception to the rule. It does not, however, invalidate the arguments adduced, as above, in favour of it: it does not disprove the probability of the mischiefs on the apprehension of which it is grounded. What it does, is to exhibit a benefit to act in balance against these inconveniences. If, then, the interests of religion be at variance with those of virtue, and it be necessary to endanger the one in order to promote the efficacy of the other,—so then it must be.

It is to be observed, that all the advantage which can accrue to the cause from this manœuvre is composed of the difference between what it may derive from these hireling advocates, and what, were there no such artificial encouragement given, it would derive from volunteers. On this head it may be worth considering, whether the calling forth of the one does not contribute to prevent the enlistment of the other. “What need is there for me, a stranger, to give myself the trouble, when there are so many others whose particular business it is, and who are so well paid for it?” Of this sort is the language which a man will very naturally hold with himself on such occasions.

A strange circumstance it would be indeed,—and one which would afford no very favourable presumption either of the truth or of the utility of the cause which it is meant to favour,—if all the unbiassed suffrages of any considerable majority in number or value of the thinking men should, if left to themselves, be on the opposite side. Great, indeed, must be the penury of unbought advocates, that can make it advantageous,—I do not say merely to the cause of truth, but to any cause, however wide of the truth,—to apply to mercenaries for assistance. Of how little weight the suffrages of the latter are in comparison of those of the former, let any one judge, who has observed the superior eclât with which the work of a layman is received, when it happens to be on the side of orthodoxy.

But however the matter may stand with regard to questions of political importance, in which utility is clearly on one side—whatever reason there be for violating the law of impartiality in this case, it ceases altogether when applied to the merely speculative points which form the matter of those articles of faith, to which on a variety of occasions subscriptions or other testimonies of acceptation are required. These will serve as one set of instances of the other branch of the cases, where the mischievous effects of reward are apt to lie concealed; viz. where, in the case of a line of conduct produced by a reward, apparent or no, the tendency of the reward to produce it is apt not to be apparent at first glance—inasmuch as it may escape observation, that the advantage held forth acts to this purpose in the capacity of a reward.

For an emolument to operate in the capacity of a reward, so as to give birth to action of any kind, it is not necessary that it should be designed so to do. Whenever any such connexion is established between emolument on the one part, and a man’s conduct on the other, that by acting in any manner he sees that he acquires an emolument, or chance of emolument, which without acting in such manner he could not have,—the view of such emolument will operate on him in the capacity of a reward. It matters not whether it be the sole act which is to entitle him to the reward, or only one act amongst many. It matters not whether it be the act to which the reward is professedly annexed, or any other act of which no mention is made. It may not be held up to view in that character: it may even be not held up to view at all. In this unconspicuous way an emolument may operate, and in a thousand instances does operate, in the capacity of a reward, on a long and indefinite course of action—in short, on the business of a whole life. Whenever, on the part of the same person, two acts are so connected, that the performance of the one is necessary to his having it in his power to perform the other, a reward annexed to the latter operates eventually as if annexed to the former; and, whether designedly or not, it promotes the production of the one act as much as of the other. In this case, the having performed the prior act is said to be a qualification for the being permitted to perform the posterior. The emolument annexed to the act professedly rewarded, is therefore, in this case, as much a reward for assuming the qualification, as a reward for performing the act, for the performance of which a man is required to qualify himself by the performance of the other.

In England (for I will go no farther) the subscribing a declaration of this sort is made a qualification for many of the principal emoluments to which a man can aspire: for every preferment in the church—for the liberty of engaging in the instruction of youth—for admission to the benefits of that mode of education which is looked upon as most liberal and advantageous, and thereby to the enjoyment, or the chance of the enjoyment of any one of that ample stock of emoluments which have been provided in the view of inducing young persons to put themselves in the way of that favourite mode of education. The articles, or propositions, to which this subscription is required, are termed Articles of Religion. By subscribing to these articles, a man declares that he believes the truth of certain facts which they aver. Among these facts there are many, which, whether true or not (a point which is nothing to the present purpose) are plainly, in a political view, of no sort of importance whatsoever. I say of no importance; since they contribute nothing to the furnishing either of any motive to prompt to action, or of any rule or precept to direct it. Be they true, or be they false,—nothing is to be done in consequence—nothing to be abstained from.

The mischievous tendency, which the giving a reward has in this case, is much more palpable than what it has in the other; because the probability of its giving birth to falsehood is the greater.

1. In the case of demonstrative lectures, all that it is absolutely necessary a man should do, is—simply to state the arguments in favour of the proposition in question: he does not necessarily assert his own belief of the truth of it. “Such are the reasons,” he may say, “which induce other people, and which, if attended to, may perhaps induce you to believe it: whether they are conclusive or not, it lies upon you to judge: as to myself, whether I myself believe it or no, is another matter. I do not tell you—I am not bound to tell you.” In the case of subscription, he directly, plainly, and solemnly says—I believe it.

2. In the next place, the probability of falsehood is much greater in this case than in the other. In the case of demonstrative lectures, men are reasoned with, lest otherwise they should not believe: in the case of subscriptions, men are rewarded for subscribing, because it is known many do not believe. Had men never disbelieved or doubted, they never would have been called upon to subscribe: it would have been useless and needless; nor would any one have thought of it.

Those who are inclined to place in the most favourable point of view the political efficacy of subscriptions to such articles, have called them articles of peace; as if there were nothing more in saying, I believe this proposition, than in saying, I engage not to say anything that tends to express a disbelief of it.

They would have been much better named, had they been termed articles of war.

In regard to speculative opinions, there are but two cases in which men can be said to be at peace: when they think about it, and are of the same opinion; and when they think nothing about the matter: unless we reckon as a third, that of their thinking about it, and differing about it, and not caring about the difference. That the expedient in question has no tendency to promote peace of the first kind, has been already shown: it is equally clear, that it has none to produce peace of either of the two other kinds. The tendency of it is just the contrary. If left to himself, there is not one person in a hundred who would ever trouble himself about the matter. Of this we may be pretty certain. What motive should he have?—what should lead him to it?—what pleasure or what profit is there to be got by it? If left, then, to themselves, the bulk of mankind,—or, to speak more properly, the bulk of those whom it is proposed thus to discipline,—would think nothing about the matter. They would therefore be in a state of the profoundest and most lasting peace. If this should not be granted, at least it will be granted, that it would be possible for them to be so. Subscriptions render it impossible. For making peace between men, subscriptions are just the same sort of recipe that it would be for making peace between two mastiffs, to set a bone before them, and then tie them to the same stake.

When both parties are at liberty, both parties are at their ease, and there is peace between them. But when the stronger party says to the weaker,—“Stand forth and lie in the sight of God, or give up the choicest advantages of society, that we may engross them to ourselves,” what sort of peace is it that can subsist between them? Just that sort of peace which subsists between the housebreaker and the householder, when the one has bound the other hand and foot, and gagged him. It is not to be denied but that there may be some sort of uneasiness between them in the first-mentioned state of things; to wit, where, neither of them being sacrificed, they are both at liberty, and both of them protected. But what sort of uneasiness is this? Just that sort of uneasiness which may perhaps subsist between two neighbours at the thought that neither of them can break into the other’s house. Against this sort of uneasiness, peace, it must be confessed, affords no remedy: but, from the possibility of there subsisting this sort of uneasiness between two neighbours, or two nations, who ever thought of speaking of them as not being at peace?

If this method of insuring peace were good in one case, how should it be otherwise in any other? Religion, or rather the nonsense which has been grafted on it—(for the part that is capable of being made useful is not thus exposed to controversy)—religion, I say, is not the only topic which has given rise to controversy. So long as there is any man whose knowledge falls short of omniscience, and whose faculties are liable to error, men will have their differences: they will differ about matters of judgment, and about matters of taste—about the sciences, about the arts, about the ordinary occurrences of life; in short, about everything which has a name. It would then be making peace among the lovers of music to make them swear before God, that they think the Italian style, or that they think the French style, of music is the more pleasing; among the lovers of heroic poetry, that they think it best in blank verse, or that they think it best in rhyme; among the lovers of dramatic poetry, that the unities of time and place may be dispensed with, or that they must be observed. It would be making peace between an affectionate pair, to question them about every possible point of domestic management, till some slight diversity were found in their opinions, and then force one of them to swear, before God, that he was convinced his own opinion was the wrong one. It would be making peace—But surely by this time, the pacific tendency of this policy must be sufficiently understood.

Another mischievous effect of this policy is the tendency it has to vitiate the understanding. Over a man’s genuine opinion, such forms, it has been shown, can have no influence: either his veracity must give way, or his understanding, or both: he must deceive either himself or others. A deceit of some kind or other he must put on somebody; either on himself or others. There is one thing which a man cannot do; that is, destroy the force of arguments which are actually present to his mind. There is another thing which he is enabled to do in a great measure; that is, keep them from getting there. This, accordingly, is what, if the consciousness of falsehood sit uneasy on him, he will labour to do with all his might. To believe, is not in his power: for, when all the arguments that have ever been urged, or can be devised, in favour of the proposition, are collected and applied to his mind, and make no impression, what help is there? What may perhaps be in his power is, not to disbelieve: and that, if possible, he will do. But thus to shut the right eye, if one may so say, of the understanding, and keep open only the left, is not the work of a minute nor of an hour. He must make many ineffectual attacks, and return as often to the charge: he must wage war against the stubbornness of the understanding—he must bring it under the dominion of the affections—he must debilitate its powers—he must render it incapable of placing, in a clear light, the difference between right and wrong: in a word, he must instil into his mind a settled habit of partiality and bad reasoning—a habit of embracing falsehood with facility, and regarding truth, not with indifference merely, but with suspicion, in the apprehension of being brought by it into trouble.

One might imagine, that it could not have both these bad effects at once; that if it have the one, it cannot have the other: if a man disbelieve, his understanding—if he believe, his morals,—are yet safe. But whoever thinks thus, is led away by words: he does not understand aright the workings of the human mind. He supposes the mind fixed as between two rocks; whereas it is perpetually shaken and tossed about, as by a thousand waves. He supposes a man at all times perfectly conscious of the state of his own mind, and aware of the momenta and directions of the incessantly fluctuating forces that are operating on him. But this is not the case with one man in a million, in any the least degree; nor perhaps with any man in perfection. Thus it is also with hypocrisy and fanaticism: it might naturally be imagined, that the one excludes the other; but repeated experience, and long-continued observation, have at length opened the eyes of most men upon that head: and it seems now to be pretty generally understood, that these two seemingly incompatible bad qualities are found frequently in the same receptacle.

LEADING PRINCIPLES OF A CONSTITUTIONAL CODE, FOR ANY STATE.

by JEREMY BENTHAM.

(first published in the pamphleteer, no. 44, 1823.)

CONSTITUTIONAL CODE, &c. &c.

[* ]“Tu fidem dabis ad observandum omnia statuta, privilegia, et consuetudines hujus universitatis Oxon. Ita te Deus adjuvet, tactis sacro sanctis Christi evangeliis.”—Parecbolæ sive Excerpta e Corpore Statutorum, p. 250, Oxon. 1756.

[* ]“Statuimus,” say these reverend legislators, “idque sub pœna perjurii,” in a multitude of places.

[† ]The title at length is Epinomis, seu Explanatio Juramenti quod de observandis Statutis Universitatis a singulis præstari solet: quatenus scilicet, seu quousque obligare jurantes censendum est.