The Online Library of Liberty

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• 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.

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.

With reference to any measures having for their object the greatest happiness of the greatest number, the course pursued by the adversaries of such measures has commonly been, in the first instance, to endeavour to repress altogether the exercise of the reasoning faculty, by adducing authority in various shapes as conclusive upon the subject of the measure proposed.

But before any clear view can be given of the deception liable to be produced by the abuse of the species of argument here in question, it will be necessary to bring to view the distinction between the proper and the improper use of it.

In the ensuing analysis of Authority, one distinction ought to be borne in mind;—it is the distinction between what may be termed a question of opinion, or quid faciendum; and what may be termed a question of fact, or quid factum. Since it will frequently happen, that whilst the authority of a person in respect to a question of fact is entitled to more or less regard, it is not so entitled in respect of a question of opinion.

CHAPTER I.

§ 1.

Analysis of Authority.

§ 2. Appeal to Authority, in what cases fallacious.

I. What, on any given occasion, is the legitimate weight or influence of authority, regard being had to the different circumstances in which a person, the supposed declaration of whose opinion constitutes the authority in question, was placed at the time of the delivery of such declaration?

1st, Upon the degree of relative and adequate intelligence on the part of the person whose opinion or supposed opinion constitutes the authority in question,—say of the persona cujus;—2dly, Upon the degree of relative probity on the part of that same person;—3dly, Upon the nearness or remoteness of the relation between the immediate subject of such his opinion and the question in hand;—4thly, Upon the fidelity of the medium through which such supposed opinion has been transmitted (including correctness and completeness:) upon such circumstances, the legitimately persuasive force of the authority thus constituted seems to depend: such are the sources in which any deficiency in respect of such persuasive force is to be looked for.

Deficiency of attention—i. e. intensity and steadiness of attention—with reference to the influencing circumstances on which the opinion, in order to be correct, required to be grounded; deficiency in respect of opportunity or matter of information, with reference to the individual question in hand; distance in point of time from the scene of the proposed measure; distance in point of place:—such, again, are the sources in which, the situation of the person in question being given, any deficiency in respect of relative and adequate intelligence is, it seems, to be looked for.

It is in the character of a cause of deficiency in relative and adequate information, that distance in point of time operates as a cause of deficiency in respect of relative and adequate intelligence; and so in regard to distance in point of place.

As to relative probity, any deficiency referable to this head will be occasioned by the exposure of the persona cujus to the action of sinister interest: concerning which, see Part V. Chapter III.—Causes of the utterance of these fallacies.

The most ordinary and conspicuous deficiency in the article of relative probity, is that of sincerity: the improbity consisting in the opposition or discrepancy between the opinion expressed and the opinion really entertained.

But as not only declaration of opinion, but opinion itself, is exposed to the action of sinister interest,—in so far as this is the case, the deficiency is occasioned in two ways: by the action of the sinister interest, either the relevant means and materials are kept out of the mind; or, if this be not found practicable, the attention is kept from fixing upon them with the degree of intensity proportioned to their legitimately persuasive force.

As to the mass of information received by any person in relation to a given subject, the correctness and completeness of such information, and thence the probability of correctness on the part of the opinion grounded on it, will be in the joint ratio of the sufficiency of the means of collecting such information, and the strength of the motives by which he was urged to the employment of those means.

On both these accounts taken together, at the top of the seale of trustworthiness stands that mass of authority which is constituted by what may be termed scientific or professional opinion: that is, opinion entertained in relation to the subject in question by a person who, by special means and motives attached to a particular situation in life, may with reason be considered as possessed of such means of insuring the correctness of his opinion, as cannot reasonably be expected to have place on the part of a person not so circumstanced.

As to the special motives in question, they will in every case be found to consist of good or evil; profit, for instance, or loss, presenting themselves as eventually likely to befall the personin question—profit or other good in case of the correctness of his opinion—loss or other evil in the event of its incorrectness.

In proportion to the force with which a man’s will is operated upon by the motives in question, is the degree of attention employed in looking out for the means of information, and the use made of them in the way of reflection towards the formation of his opinion.

Thus in the case of every occupation which a man engages in with a view to profit, the hope of gaining his livelihood, and the fear of not gaining it, are the motives by which he is urged to apply his attention to the collection of whatsoever information may contribute to the correctness of the several opinions which he may have occasion to form respecting the most advantageous method of carrying on the several operations by which such profit may be obtained.

1. The legitimately persuasive force of professional authority being taken as the highest term in the scale, the following may be noticed as expressive of so many other species of authority, occupying so many inferior degrees in the same scale:—

2. Authority derived from power. The greater the quantity of power a man has, no matter in what shape, the nearer the authority of his opinion comes to professional authority, in respect of the facility of obtaining the means conducive to correctness of decision.

3. Authority derived from opulence. Opulence—being an instrument of power, and to a considerable extent applicable in a direct way to many or most of the purposes to which power is applicable—seems to stand next after power in the scale of instruments of facility as above.

4. Authority derived from reputation, considered as among the efficient causes of respect. By reputation, understand, on this occasion, general reputation, not special and relative reputation, which would rank the species of authority under the head of professional authority as above.

Note, that of all these four species of authority, it is only in the case of the first that the presumable advantage which is the efficient cause of its legitimately persuasive force extends to the article of motives as well as means. By having the motives that tend to correctness of information, the professional man has the means likewise; since it is to the force of the motives under the stimulus of which he acts, that he is indebted for whatever means he acquires. It is from his having the motives, that it follows that he has the means.

But in those other cases, whatsoever be the means which a man’s situation places within his reach, it follows not that he has the motives—that he is actually under the impulse of any motive sufficient to the full action of that desire and that energy by which alone he can be in an adequate degree put in possession of the means.

On the contrary, in proportion as in the scale of power the man in question rises above the ordinary level, in that same proportion, in respect of motives for exertion (be the line of action what it may,) he is apt to sink below the same level: because, the greater the quantum of the share of the general mass of objects of desire that a man is already in possession of, the greater is the amount of that portion of his desires which is already in a state of saturation, and consequently the less the amount of that portion which, remaining unsatiated, is left free to operate upon his mind in the character of a motive.

Under oriental despotism, the person at whose command the means of information exist in a larger proportion than they do in the instance of any other person whatever, is the despot; but necessary motives being wanting, no use is made by him of these means, and the general result is a state of almost infantine imbecility and ignorance.

Such, in kind, varying only in degree, is the ease with every hand in which power is lodged, unincumbered with obligation; or, in other words, with sense of eventual danger.

In England, the king, the peer, the opulent borough-holding or county-holding country gentleman, should, on the above principle, present an instance of the sort of double scale in question, in which, while means decrease, motives rise.

But so long as he takes any part at all in public affairs, the sense of that weak kind of eventual responsibility to which, notwithstanding the prevailing habits of idolatry, the monarch, as such, stands at all times exposed, suffices to keep his intellectual faculties at a point more or less above the point of utter ignorance; whereas, short of proveable idiotism, there is no degree of imbecility that in either of those two other situations can suffice to render it matter of danger or inconvenience to the possessor, either to leave altogether unexercised the power annexed to such situation, or, without the smallest regard for the public welfare, to exercise it in whatever manner may be most agreeable or convenient to himself.

All this while, it is only on the supposition of perfect relative probity, viz. of that branch of probity that consists of sincerity, as well as absence of all such sources of delusion as to the person in question are liable to produce the effects of insincerity—in a word, it is only on the supposition of the absence of exposure to the action of any sinister interest, operating in such direction as to tend to produce either erroneous opinion, or misrepresentation of a man’s opinion on the subject in question, that, in so far as it depends on the information necessary to correctness of opinion, the title of a man’s authority to regard bears any proportion either to motives or to means of information as above.

On the contrary, if, either immediately or through the medium of the will, a man’s understanding be exposed to the dominion of sinister interest, the more complete as well as correct the mass of relative information is which he possesses, the more completely destitute of all title to regard, i. e. to confidence, unless it be in the opposite direction, will the authority, or pretended or real opinion, be.

Hence it is, that on the question, What is the system of remuneration best adapted to the purpose of obtaining the highest degree of official aptitude throughout the whole field of official service?—the authority of any person, who here or elsewhere, now or formerly, was in possession or expectation of any such situation as that of minister of state, so far from being greater than that of an average man, is not equal to 0, but in the mathematical sense negative, or so much below 0; i. e. so far as it affords a reason for looking upon the opposite opinion as the right and true one.

So, again, as to this question—What, in so far as concerns cognoscibility, or economy and expedition in procedure, the state of the law ought to be?—in the instance of any person who here or elsewhere, recently or formerly, but more particularly in this country, was in possession or expectation of any situation, professional or official, the profitableness of which, in the shape of pecuniary emolument, or in any other shape (such as power, reputation, ease, and occasionally vengeance,) depended upon the incognoscibility, the expensiveness, the dilatoriness, the vexatiousness of the system of judicial procedure—the weight of the authority—the strength of its title to credit on the part of those understandings to which the force of it is applied,—is not merely equal to 0, but in the mathematical sense negative, or so much below 0.

Note, that where, as above, the weight or probative force of the authority in question is spoken of as being not positive but negative (being rendered so by sinister interest,) what is taken for granted is, that the direction in which the authority is offered is the same as that in which the sinister interest acts; for if, the direction in which the sinister interest acts lying one way, the direction in which the opinion acts lies the other way—in such case, the title of the opinion to credit on the part of the understandings to which it is proposed, so far from being destroyed or weakened, is much increased; because the grounds for correctness of opinion, the motives and the means which in that case lead to correctness being more completely within the reach of, and according to probability present to, the minds of this class of men, the forces that tend to promote aberration having by this supposition spent themselves in vain, the chance for correctness is thereby greater.

Accordant with this, and surely enough accordant with experience and common sense, is one of the few rational rules that as yet have received admittance among the technically-established rules of evidence. In a man’s own favour his own testimony is the weakest—in his disfavour, the strongest, evidence.

It is on this account that, wherever a man is in a superior degree furnished as above with means of, and motives for, obtaining relevant information, the stronger the force of the sinister interest under the action of which his opinion is delivered, the stronger is his title to attention. In the way of direct and relevant argument applying to the question in hand in a direct and specific way, if the question be susceptible of any such arguments, in proportion to the efficiency of the motives and means he has for the acquisition of such relevant information, is the probability of his bringing such information to view. If, then, instead of bringing to view any such relevant information, or by way of supplement and support to such relevant information (when weak and insufficient,) the arguments which he brings to view are of the irrelevant sort, the addition of such bad arguments affords a sort of circumstantial evidence, and that of no mean degree of probative force, of the inability of the side thus advocated to furnish any good ones.

Closeness of the relation between the immediate subject in hand, and the subject of the supposed opinion of which the authority is composed, has been mentioned as the third circumstance necessary to be considered in estimating the credit due to authority:—of this, it is evident enough, there cannot be any common and generally applicable measure: it is that sort of quantity, of the amount of which a judgment can only be pronounced in each individual case.

As to the fidelity of the medium through which the opinion constitutive of the authority in question has been, or is supposed to have been, transmitted,—it is only pro memoria that this topic is here brought to view in the list of the circumstances from which the legitimately persuasive force of an opinion constitutive of authority is liable to experience decrease, of its admission into this list the propriety is, on the bare mention, as manifest as it is in the power of reasoning to make it. In this respect, the rule and measure, as well as cause, of such decrease, stand exactly on the same ground as the rule with respect to any other evidence; authority being, to the purpose in question, neither more nor less than an article of circumstantial evidence.

The need for the legitimately persuasive force of authority, i. e. probability of comparatively superior information on the one hand, is in the inverse ratio of information on the part of the person on whom it is designed to operate, on the other. The less the degree in which each man is qualified to form a judgment on any subject on the ground of specific and relevant information—on the ground of direct evidence—the more cogent the necessity he is under of trusting, with a degree of confidence more or less implicit, to that species of circumstantial evidence: and in proportion to the number of the persons who possess, each within himself, the means of forming an opinion on any given subject on the ground of such direct evidence, the greater the number of the persons to whom it ought to be matter of shame to frame and pronounce their respective decision, on no better ground than that of such inconclusive and necessarily fallacious evidence.

Of the truth of this observation, men belonging to the several classes, whose situation in the community has given to them, in conjunction with efficient power, a separate and sinister interest opposite to that of the community in general, have seldom failed to be in a sufficient degree percipient.

In this perception, in the instance of the fraternity of lawyers, may be seen one cause, though not the only one, of the anxiety betrayed, and pains taken, to keep the rule of action in a state of as complete incognoscibility as possible on the part of those whose conduct is professed to be directed by it, and whose fate is in fact disposed of by it.

In this same perception, in the instance of the clergy of old times in the Romish church, may be seen in like manner the cause, or at least one cause, of the pains taken to keep in the same state of incognoscibility the acknowledged rule of action in matters of sacred and supernatural law.

In this same perception, in the instance of the English clergy of times posterior to those of the Romish church—in this same perception may be seen one cause of the exertions made by so large a proportion of the governing classes of that hierarchy, to keep back, and if possible render abortive the system of invention which has for its object the giving to the exercise of the art of reading the highest degree of universality possible.

To return. Be the subject-matter what it may, to the account of fallacies cannot be placed any mention made of an opinion to such or such an effect, as having been delivered or intimated by such or such a person by name, when the sole object of the reference is to point out a place where relevant arguments adduced on a given occasion may be found in a more complete or perspicuous state than they are on the occasion on which they are adduced.

In the case thus supposed, there is no irrelevancy. The arguments referred to are by the supposition relevant ones; such as, if the person by whom they have been presented to view were altogether unknown, would not lose anything of their weight; the opinion is not presented as constitutive of authority, as carrying any weight of itself, and independently of the considerations which he has brought to view.

Neither is there any fallacy in making reference to the opinion of this or that professional person, in a case to such a degree professional or scientific, with relation to the hearers or readers, that the forming a correct judgment on such relevant and specific arguments as belong to it, is beyond their competence. In matters touching medical science, chemistry, astronomy, the mechanical arts, the various branches of the art of war, &c., no other course could be pursued.

§ 2.

Appeal to Authority, in what cases fallacious.*

The case in which reference to authority is open to the imputation of fallacy, is where, in the course of a debate touching a subject lying in such sort within the comprehension of the debaters, that argument bearing the closest relation to it would be perfectly within the sphere of their comprehension,—authority (a sort of argument in the case here in question not relevant) is employed in the place of such relevant arguments as might have been adduced on one side, or in opposition to irrelevant ones adduced on the other side.

But the case in which the practice of adducing authority in the character of an argument is in the highest degree exposed to the imputation of fallacy, is, where the situation of the debaters being such, that the forming a correct conception of, and judgment on, such relevant arguments as the subject admits, is not beyond their competency, the opinion, real or supposed, of any person who from his profession or other particular situation, derives an interest opposite to that of the public, is adduced in the character of an argument, in lieu of such relevant arguments as the question ought to furnish.—(In an Appendix to this Chapter will be given examples of persons whose declared opinions, on a question of legislation, are in a peculiar degree liable to be tinged with falsity by the action of sinister interest.)

He who, on a question concerning the propriety of any law or established practice with reference to the time being, refers to authority as decisive of the question, assumes the truth of one or other of two positions: viz. that the principle of utility—i. e. that the greatest happiness of the greatest number—is not at the time in question the proper standard for judging of the merits of the question: or, that the practice of other and former times, or the opinion of other persons, ought to be regarded in all cases as conclusive evidence of the nature and tendency of the practice—conclusive evidence, superseding the necessity and propriety of any recourse to reason or present experience.

In the first case, being really an enemy to the community, that he should be esteemed as such by all to whom the happiness of the community is an object of regard, is no more than right and reasonable,—no more than what, if men acted consistently, would uniformly take place.

In the other case, what he does is, virtually to acknowledge himself not to possess any powers of reasoning which he himself can venture to think it safe to trust to: incapable of forming for himself any judgment by which he looks upon it as safe to be determined, he betakes himself for safety to some other man, or set of men, of whom he knows little or nothing, except that they lived so many years ago; that the period of their existence was by so much anterior to his own time—by so much anterior, and consequently possessing for its guidance so much the less experience.

But when a man gives this account of himself—when he represents his own mind as labouring under this kind and degree of imbecility,—what can be more reasonable than that he should be taken at his word?—that he should be considered as a person labouring under a general and incurable imbecility, from whom nothing relevant can reasonably be expected?

He who, in place of reasoning deduced (if the subject be of a practical nature) from the consideration of the end in view, employs authority, makes no secret of the opinion he entertains of his hearers or his readers: he assumes that those to whom he addresses himself are incapable, each of them, of forming a judgment of their own. If they submit to this insult, may it not be presumed that they acknowledge the justice of it?

Of imbecility—at any rate of self-conscious and self-avowed imbecility—proportionable humility ought naturally to be the result;

On the contrary, so far from humility,—of this species of idolatry—of this worshipping of dead men’s bones,—all passions the most opposite to humility—pride, anger, obstinacy, and overbearingness,—are the frequent, not to say the constant, accompaniments.

With the utmost strength of mind that can be displayed in the field of reasoning, no reasonable man ever manifests so much heat, assumes so much, or exhibits himself disposed to bear so little, as these men, whose title to regard and notice is thus given up by themselves.

Whence this inconsistency?—whence this violence? From this alone, that having some abuse to defend—some abuse in which they have an interest and a profit—and finding it on the ground of present public interest indefensible, they fly for refuge to the only sort of argument in which so much as the pretension of being sincere in error can find countenance.

By authority, support, the strength of which is proportioned to the number of the persons joining in it, is given to systems of opinions at once absurd and pernicious—to the religion of Buddh, of Brama, of Foh, of Mahomet.

And hence it may be inferred that the probative force of authority is not increased by the number of those who may have professed a given opinion—unless, indeed, it could be proved that each individual of the multitudes who professed the opinion, possessed in the highest degree the means and motives for ensuring its correctness. Even in such a case, it would not warrant the substitution of the authority for such direct evidence and arguments as any case in debate might be able to supply, supposing the debaters capable of comprehending such direct evidence and arguments: but that, in ordinary cases, no such circumstantial evidence should possess any such legitimately probative force as to warrant the addition, much less the substitution of it, to that sort of information which belongs to direct evidence, will, it is supposed, be rendered sufficiently apparent by the following considerations:—

1. If in theory any the minutest degree of force were ascribed to the elementary monade of the body of authority thus composed, and this theory were followed up in practice, the consequence would be, the utter subversion of the existing state of things:—as for example—if distance in point of time were not sufficient to destroy the probative force of such authority, the Catholic religion would in England be to be restored to the exclusive dominion it possessed and exercised for so many centuries: the toleration laws would be to be repealed, and persecution to the length of extirpation would be to be substituted to whatever liberty in conduct and discourse is enjoyed at present;—and in this way, after the abolished religion had thus been triumphantly restored, an inexorable door would be shut against every imaginable change in it, and thence against every imaginable reform or improvement in it, through all future ages:

2. If distance in point of place were not understood to have the same effect, some other religion than the Christian—the religion or Mahomet for example, or the way of thinking in matters of religion prevalent in China—would have to be substituted by law to the Christian religion.

In authority, defence, such as it is, has been found for every imperfection, for every abuse, for every the most pernicious and most execrable abomination that the most corrupt system of government has ever husbanded in its bosom:—

And here may be seen the mischief necessarily attached to the course of him whose footsteps are regulated by the finger of this blind guide.

What is more, from hence may inferences be deduced—nor those ill-grounded ones—respecting the probity or improbity, the sincerity or insincerity, of him who, standing in a public situation, blushes not to look to this blind guide, to the exclusion of, or in preference to, reason—the only guide that does not begin with shutting his own eyes, for the purpose of closing the eyes of his followers.

As the world grows older, if at the same time it grows wiser (which it will do unless the period shall have arrived at which experience, the mother of wisdom, shall have become barren,) the influence of authority will in each situation, and particularly in parliament, become less and less.

Take any part of the field of moral science, private morality, constitutional law, private law—go back a few centuries, and you will find argument consisting of reference to authority, not exclusively, but in as large a proportion as possible. As experience has increased, authority has been gradually set aside, and reasoning, drawn from facts, and guided by reference to the end in view, true or false, has taken its place.

Of the enormous mass of Roman law heaped up in the school of Justinian—a mass, the perusal of which would employ several lives occupied by nothing else—materials of this description constitute by far the greater part. A throws out at random some loose thought: B, catching it up, tells you what A thinks—at least, what A said: C tells you what has been said by A and B; and thus, like an avalanche, the mass rolls on.

Happily, it is only in matters of law and religion that endeavours are made, by the favour shown and currency given to this fallacy, to limit and debilitate the exercise of the right of private inquiry in as great a degree as possible, though at this time of day the exercise of this essential right can no longer be suppressed in a complete and direct way by legal punishment.

In mechanics, in astronomy, in mathematics, in the new-born science of chemistry—no one has at this time of day either effrontery or folly enough to avow, or so much as to insinuate, that the most desirable state of these branches of useful knowledge, the most rational and eligible course, is to substitute decision on the ground of authority, to decision on the ground of direct and specific evidence.

In every branch of physical art and science, the folly of this substitution or preference is matter of demonstration—is matter of intuition, and as such is universally acknowledged. In the moral branch of science, religion not excluded, the folly of the like receipt for correctness of opinion would not be less universally recognised, if the wealth, the ease, and the dignity attached to and supported by the maintenance of the opposite opinion, did not so steadily resist such recognition.

Causes of the employment and prevalence of this fallacy.

It is obvious that this fallacy, in all its branches, is so frequently resorted to by those who are interested in the support of abuses, or of institutions pernicious to the great body of the people, with the intention of suppressing all exercise of reason. A foolish or untenable proposition, resting on its own support or the mere credit of the utterer, could not fail speedily to encounter detection and exposure;—the same proposition, extracted from a page of Blackstone, or from the page or mouth of any other person to whom the idle and unthinking are in the habit of unconditionally surrendering their understandings, shall disarm all opposition.

Blind obsequiousness, ignorance, idleness, irresponsibility, anti-constitutional dependence, anti-constitutional independence, are the causes which enable this fallacy to maintain such an ascendency in the governing assemblies of the British empire.

First, In this situation one man is on each occasion ready to borrow an opinion of another, because through ignorance and imbecility he feels himself unable, or through want of solicitude unwilling, to form one for himself; and he is thus ignorant, if natural talent does not fail him, because he is so idle. Knowledge, especially in so wide and extensive a field, requires study; study, labour of mind, bestowed with more or less energy, for a greater or less length of time.

But, secondly, In a situation for which the strongest talents would not be more than adequate, there is frequently a failure of natural talent; because in so many instances admission to that situation depends either on the person admitted, or on others to whom, whether he has or has not the requisite talents is a matter of indifference, that no degree of intellectual deficiency, short of palpable idiocy, can have the effect of excluding a man from occupying it.

Thirdly, The sense of responsibility is in the instance of a large proportion of the members wanting altogether; because in so small a proportion are they at any time in any degree of dependence on the people whose face is in their hands, and because, in the instance of the few who are in any degree so dependent, the efficient cause, and consequently the feeling of such dependence, endures during so small a proportion of the time for which they enjoy their situations: because also, while so few are dependent on those on whom they ought to be dependent, so many are dependent on those who ought to be dependent on them—those servants of the crown, on whose conduct they are commissioned by their constituents to act as judges. What share of knowledge, intelligence, and natural talent, is in the House, is thus divided between those who are, and their rivals who hope to be, servants of the crown. The consequence is, that, those excepted in whom knowledge, intelligence, and talent, are worse than useless, the House is composed of men, the furniture of whose minds is made up of discordant prejudices, of which on each occasion they follow that by which the interest or passion of the moment is most promoted.

Then, with regard to responsibility, so happily have matters been managed by the house,—a seat there is not less clear of obligation than a seat in the opera-house: in both, a man takes his seat, then only when he cannot find more amusement elsewhere; for both the qualifications are the same,—a ticket begged or bought: in neither is a man charged with any obligation, other than the negative one of not being a nuisance to the company; in both, the length as well as number of attendances depends on the amusement a man finds, except, in the case of the house, as regards the members dependent on the crown. True it is, that a self-called independent member is not necessarily ignorant and weak: if by accident a man possessed of knowledge and intelligence is placed in the house, his seat will not deprive him of his acquirements. All, therefore, that is meant is, only that ignorance does not disqualify, not that knowledge does. Of the crown and its creatures it is the interest that this ignorance be as thick as possible. Why? Because, the thicker the ignorance, the more completely is the furniture of men’s minds made up of those interest-begotten prejudices, which render them blindly obsequious to all those who, with power in their hands, stand up to take the lead.

But the Emperor of Morocco is not more irresponsible, and therefore more likely to be ignorant and prone to be deceived by the fallacy of authority, than a member of the British Parliament:—the Emperor of Morocco’s power is clear of obligation; so is the member’s:—the emperor’s power, it is true is an integer, and the member’s but a fraction of it; but no ignorance prevents a man from becoming or continuing Emperor of Morocco, nor from becoming or continuing a member:—the emperor’s title is derived from birth; so is that of many a member:—to enjoy his despotism, no fraud, insincerity, hypocrisy, or jargon, is necessary to the emperor; much of all to the member:—by ascending and maintaining his throne, no principle is violated by the emperor; by the member, if a borough-holder, many are violated on his taking and retaining his seat:—by being a despot, the emperor is not an impostor; the member is:—the emperor pretends not to be a trustee, agent, deputy, delegate, representative; lying is not among the accompaniments of his tyranny and insolence; the member does pretend all this, and (if a borough-holder) lies. A trust-holder? Yes; but a trust-breaker;—an agent? Yes; but for himself;—a representative of the people? Yes; but so as Mr. Kemble is of Macbeth;—a deputy? Yes; because it has not been in their power to depute, to delegate anybody else:—deputy,—delegate,—neither title he assumes but for argument, and when he cannot help it; deputation being matter of fact, the word presents an act with all its circumstances—viz. fewness of the electors, their want of freedom, &c.; representation is a more convenient word—the acts, &c. are kept out of sight by it—it is a mere fiction, the offspring of lawyer-craft, and any one person or thing may be represented by any other: by canvass with colours, a man is represented; by a king, the whole people; by an ambassador, the king, and thus the people.

Remedy against the influence of this fallacy.

For banishing ignorance, for substituting to it a constantly competent measure of useful, appropriate, and general instruction, the proper, the necessary, the only means, he not deep beneath the surface.

The sources of instruction being supposed at command, and the quantity of natural talent given, the quantity of information obtained will in every case be as the quantity of mental labour employed in the collection of it—the quantity of mental labour, as the aggregate strength of the motives by which a man is excited to labour.

In the existing order of things, there is, comparatively speaking, no instruction obtained, because no labour is bestowed: no labour is bestowed, because none of the motives by which men are excited to labour are applied in this direction.

The situation being by the supposition an object of desire, if the case were such, that without labour employed in obtaining instruction, there would be no chance of obtaining the situation, or but an inferior chance;—while, in case of labour so employed, there would be a certainty, or a superior chance:—here, instruction would have its motives;—here, labour applied to the attainment of instruction—here, consequently, instruction itself—would have its probably efficient cause.

The quality—i. e. the relative applicability of the mass of information obtained—is an object not to be overlooked.

The goodness of the quality will depend on the liberty enjoyed in respect of the choice. By prohibitions, with penalties attached to the delivery of alleged information relative to a subject in question, or any part of it, the quality of the whole mass is impaired, and an implied certificate is given of the truth and utility of whatsoever portion is thus endeavoured to be suppressed.

APPENDIX.

Examples of descriptions of persons whose declared opinions upon a question of legislation are peculiarly liable to be tinged with falsity by the action of sinister interest.

1.

Lawyers; oppositeness of their interest to the universal interest.

The opinions of lawyers in a question of legislation, particularly of such lawyers as are or have been practising advocates, are peculiarly liable to be tinged with falsity by the operation of sinister interest. To the interest of the community at large, that of every advocate is in a state of such direct and constant opposition (especially in civil matters,) that the above assertion requires an apology to redeem it from the appearance of trifling: the apology consists in the extensively prevailing propensity to overlook and turn aside from a fact so entitled to notice. It is the people’s interest, that delay, vexation, and expense of procedure, should be as small as possible:—it is the advocate’s, that they should be as great as possible; viz. expense, in so far as his profit is proportioned to it—factitious vexation and delay, in so far as inseparable from the profit-yielding part of the expense. As to uncertainty in the law, it is the people’s interest that each man’s security against wrong should be as complete as possible; that all his rights should be known to him; that all acts, which in the case of his doing them will be treated as offences, may be known to him as such, together with their eventual punishment, that he may avoid committing them, and that others may, in as few instances as possible, suffer either from the wrong, or from the expensive and vexatious remedy. Hence it is their interest, that as to all these matters the rule of action, in so far as it applies to each man, should at all times be not only discoverable, but actually present to his mind. Such knowledge, which it is every man’s interest to possess to the greatest, it is the lawyer’s interest that he possess it to the narrowest, extent, possible. It is every man’s interest to keep out of lawyers’ hands as much as possible—it is the lawyer’s interest to get him in as often, and keep him in as long, as possible,—and thence, that any written expression of the words necessary to keep non-lawyers out of his hand may as long as possible be prevented from coming into existence; and when in existence, may as long as possible be kept from being present to his mind,—and when presented, from staying there.* It is the lawyer’s interest, therefore, that people should continually suffer for the non-observance of laws, which, so far from having received efficient promulgation, have never yet found any authoritative expression in words. This is the perfection of oppression: yet, propose that access to knowledge of the laws be afforded by means of a code, lawyers, one and all, will join in declaring it impossible. To any effect, as occasion occurs, a judge will forge a rule of law: to that same effect, in any determinate form of words, propose to make a law, that same judge will declare it impossible. It is the judge’s interest that on every occasion his declared opinion be taken for the standard of right and wrong—that whatever he declares right or wrong be universally received as such, how contrary soever such declaration be to truth and utility, or to his own declaration at other times:—hence, that within the whole field of law, men’s opinions of right and wrong should be as contradictory, unsettled, and thence as obsequious to him as possible; in particular, that the same conduct which to others would occasion shame and punishment, should, to him and his, occasion honour and reward; that on condition of telling a lie, it should be in his power to do what he pleases, the injustice and falsehood being regarded with complacency and reverence; that as often as by falsehood, money, or advantage in any other shape can be produced to him, it should be regarded as proper for him to employ reward or punishment, or both, for the procurement of such falsehood. Consistently with men’s abstaining from violences, by which the person and property of him and his would be alarmingly endangered, it is his interest that intellectual as well as moral depravation should be as intense and extensive as possible; that transgressions cognizable by him should be as numerous as possible; that injuries and other transgressions committed by him should be reverenced as acts of virtue; that the suffering produced by such injuries should be placed, not to his account, but to the immutable nature of things, or to the wrongdoer, who, but for the encouragement from him, would not have become such. His professional and personal interest being thus adverse to that of the public, from a lawyer’s declaration that the tendency of a proposed law relative to procedure, &c. is pernicious, the contrary inference may not unreasonably be drawn. From those habits of misrepresenting their own opinion (i. e. of insincerity) which are almost peculiar to this in comparison with other classes, one presumption is, that he does not entertain the opinion thus declared;—another, that if he does, he has been deceived into it by sinister interest, and the authority of co-professional men, in like manner deceivers or deceived: in other words, it is the result of interest-begotten prejudice. In the case of every other body of men, it is generally expected that their conduct and language will be for the most part directed by their own interest, that is, by their own view of it. In the case of the lawyer, the ground of this persuasion, so far from being weaker, is stronger than in any other case. His evidence being thus interested evidence, according to his own rules his declaration of opinion on the subject here pointed out would not be so much as hearable. It is true, were those rules consistently observed, judicature would be useless, and society dissolved: accordingly they are not so observed, but observed or broken pretty much at pleasure; but they are not the less among the number of those rules, the excellence and inviolability of which the lawyer is never tired of trumpeting. But on any point such as those in question, nothing could be more unreasonable, nothing more inconsistent with what has been said above, than to refuse him a heariny. On every such point, his habits and experience afford him facilities not possessed by any one else, for finding relevant and specific arguments, when the nature of the case affords any; but the surer he is of being able to find such arguments, if any such are to be found, the stronger the reason for treating his naked declaration of opinion as unworthy of all regard: accompanied by specific arguments, it is useless; destitute of them, it amounts to a virtual confession of their non-existence.

So matters stand on the question, what ought to be law?

On the question what the law is, so long as the rule of action is kept in the state of common, alias unwritten, alias imaginary law, authority, though next to nothing, is everything. The question is, what on a given occasion A (the judge) is likely to think: wait till your fortune has been spent in the inquiry, and you will know; but forasmuch as it is naturally a man’s wish to be able to give a guess what the result will eventually be, before he has spent his fortune, in the view if possible to avoid spending his fortune, and getting nothing in return for it, he applies, through the medium of B (an attorney,) for an opinion to C (a counsel), who, considering what D (a former judge) has, on a subject supposed to be more or less analogous to the one in question, said or been supposed to say, deduces therefrom his guess as to what, when the time comes, judge A, he thinks, will say, and gives it you. A shorter way would be, to put the question at once to A; but, for obvious reasons, this is not permitted.

On many cases, again, as well-grounded a guess might be had of an astrologer for five shillings, as of a counsel for twice or thrice as many guineas, but that the lawyer considers the astrologer as a smuggler, and puts him down.

But Packwood’s opinion on the goodness of his own razors would be a safer guide for judging of their goodness, than a judge’s opinion on the goodness of a proposed law: it is Packwood’s interest that his razors be as good as possible;—the judge’s, that the law be as bad, yet thought to be as good, as possible. It would not be the judge’s interest that his commodity should be thus bad, if, as in the case of Packwood, the customer had other shops to go to; but in this case, even when there are two shops to go to, the shops being in confederacy, the commodity is equally bad in both; and the worse the commodity, the better it is said to be. In the case of the judge’s commodity, no experience suffices to undeceive men; the bad quality of it is referred to any cause but the true one.

Example 2. Churchmen; oppositeness of their interest to the universal interest.

In the lawyer’s case it has been shown, that on the question, what on such or such a point ought to be law,—to refer to a lawyer’s opinion, given without or against specific reasons, is a fallacy—its tendency, in proportion to the regard paid to it, deceptious;—the cause of this deceptious tendency, sinister interest, to the action of which all advocates and (being made from advocates) all judges stand exposed. To the churchman’s case the same reasoning applies: as in the lawyer’s case, the objection does not arise on the question, what law is, but what ought to be law,—so in the churchman’s case, it does not arise as to what in matters of religion is law, but as to what in those matters ought to be law. On a question not connected with religion, reference to a churchman’s opinion as such, as authority, can scarcely be considered as a fallacy, such opinion not being likely to be considered as constitutive of authority. To understand how great would be the probability of deception, if on the question, what in matters of religion ought to be law, the unsupported opinion of a churchman were to be regarded as authority, we must develope the nature and form of the sinister interest by which any declaration of opinion from such a quarter is divested of all title to regard. The sources of a churchman’s sinister interest are as follows:—

1. On entering into the profession, as condition prevedent to advantage from it in the shape of subsistence and all other shapes, he makes of necessity a solemn and recorded declaration of his belief in the truth of 39 articles, framed 262 years ago—the date of which, the ignorance and violence of the time considered, should suffice to satisfy a reflecting mind of the impossibility of their being all of them really believed by any person at present.

2. In this declaration is generally understood to be included an engagement or undertaking, in case of original belief and subsequent change, never to declare, but if questioned, to deny such change.

3. In the institution thus established, he beholds shame and punishment attached to sincerity—rewards in the largest quantity to absurdity and insincerity. Now the presumptions resulting from such an application of reward and punishment, to engage men to declare assent to given propositions, are—1st, That the proposition is not believed by the proposer; 2. Thence, that it is not true; 3. Thence, that it is not believed by the acceptor. It is impossible by reward or punishment to produce real and immediate belief: but the following effects may certainly be produced:—1. The abstaining from any declaration of disbelief; 2. Declaration of belief; 3. The turning aside from all considerations tending to produce disbelief; 4. The looking out for, and fastening exclusive attention to, all considerations tending to produce belief—authority especially, by which a sort of vague and indistinct belief of the most absurd propositions has everywhere been produced.

On no other part of the field of knowledge are reward or punishment now-a-days considered as fit instruments for the production of assent or dissent. A schoolmaster would not be looked upon as same, who, instead of putting Euclid’s Demonstrations into the hands of his scholar, should, without the Demonstrations, put the Propositions into his hand, and give him a guinea for signing a paper declarative of his belief in them, or lock him up for a couple of days without food on his refusal to sign it. And so in chemistry, mechanics, husbandry, astronomy, or any other branch of knowledge. It is true, that in those parts of knowledge in which assent and dissent are left free, the importance of truth may be esteemed not so great as here, where it is thus influenced; but the more important the truth, the more flagrant the absurdity and tyranny of employing, for the propagation of it, instruments, the employment of which has a stronger tendency to propagate error than truth.

4. For teaching such religious truths as men are allowed to teach, together with such religious error as they are thus forced to teach, the churchman sees rewards allotted in larger quantities than are allotted to the most useful services. Of much of the matter of reward thus bestowed, the disposal is in the king’s hands, with the power of applying it, and motives for applying it, to the purpose of parliamentary service, paying for habitual breach of trust, and keeping in corrupt and see et dependence on his agents, those agents of the people whose duty it is to sit as judges over the agents of the king. In Ireland, of nine-tenths of those, on pretence of instructing whom this vast mass of reward is extorted, it is known, that, being by conscience precluded from hearing, it is impossible that they should derive any benefit from such instruction.

In Scotland, where government reward is not employed in giving support to it, Church-of-Englandism is reduced to next to nothing.

The opinions which, in this state of things, interest engages a churchman to support, are—1. That reward to the highest extent has no tendency to promote insincerity, even where practicable, to an unlimited extent, and without chance of detection; 2. Or that money given in case of compliance, refused in case of non-compliance, is not reward for compliance; 3. Or that punishment applied in case of non-compliance, withheld in case of compliance, is not punishment; 4. Or that insincerity is not vice but virtue, and as such ought to be promoted; 5. That it is not merely consistent with, but requisite to, good government to extort money from poor and rich, to be applied as reward for doing nothing, or for doing but a small part of that which is done by others for a small proportion of the same reward, and this on pretence of rendering service, which nine-tenths of the people refuse to receive.

It is the interest of the persons thus engaged in a course of insincerity, that by the same means perseverance in the same course should be universal and perpetual; for suppose, in case of the reward being withheld, the number annually making the same declaration should be reduced to half: this would be presumptive evidence of insincerity on the part of half of those who made it before.

The more flagrant the absurdity, the stronger is each man’s interest in engaging as many as possible in joining with him in the profession of assent to it; for the greater the number of such co-declarants, the greater the number of those of whose professions the elements of authority are composed, and of those who stand precluded from casting on the rest the imputation of insincerity.

The following, then, are the abuses in the defence of which all churchmen are enlisted: 1. Perpetuation of immorality in the shape of insincerity; 2. Of absurdity in subjects of the highest importance; 3. Extortion inflicted on the many for the benefit of the few; 4. Reward bestowed on idleness and incapacity, to the exclusion of labour and ability; 5. The matter of corruption applied to the purposes of corruption in a constant stream; 6. In one of these kingdoms, a vast majority of the people kept in degradation, avowedly for no other than the above purposes. But whoever is engaged by interest in the support of any one government abuse, is engaged in the support of all, each giving to the others his support in exchange.

It being the characteristic of abuse to need and receive support from fallacy, it is the interest of every man who derives profit from abuse in any shape, to give the utmost currency to fallacy in every shape—viz. as well to those fallacies which render more particular service to others’ abuses, as those which render such service to his own. It being the interest of each person so situated to give the utmost support to abuse, and the utmost currency to fallacy in every shape, it is also his interest to give the utmost efficiency to the system of education by which men are most effectually divested both of the power and will to detect and expose fallacies, and thence to suppress every system of education in proportion as it has a contrary tendency. Lastly, the stronger the interest by which a man is urged to give currency to fallacy, and thus to propagate deception, the more likely is it that such will be his endeavour: the less fit, therefore, will his opinion be to serve in the character of authority, as a standard and model for the opinions of others.

CHAPTER II.

THE WISDOM OF OUR ANCESTORS; OR CHINESE ARGUMENT—(ad verecundiam.)

§ 1.

Exposition.

This argument consists in stating a supposed repugnancy between the proposed measure, and the opinions of men by whom the country of those who are discussing the measure was inhabited in former times; these opinions being collected either from the express words of some writer living at the period of time in question, or from laws or institutions that were then in existence.

“Our wise ancestors”—“The wisdom of our ancestors”—“The wisdom of ages”—“Venerable antiquity”—“Wisdom of old times:”—

Such are the leading terms and phrases of propositions, the object of which is to cause the alleged repugnance to be regarded as a sufficient reason for the rejection of the proposed measure.

§ 2.

Exposure.

This fallacy affords one of the most striking of the numerous instances in which, under the conciliatory influence of custom—that is, of prejudice—opinions the most repugnant to one another are capable of maintaining their ground in the same intellect.

This fallacy, prevalent as it is in matters of law, is directly repugnant to a principle or maxim universally admitted in almost every other department of human intelligence, and which is the foundation of all useful knowledge and of all rational conduct.

“Experience is the mother of wisdom,” is among the maxims handed down to the present and all future ages, by the wisdom, such as it has been, of past ages.

No! says this fallacy, the true mother of wisdom is not experience, but inexperience.

An absurdity so glaring carries in itself its own refutation; and all that we can do is, to trace the causes which have contributed to give to this fallacy such an ascendency in matters of legislation.

Among the several branches of the fallacies of authority, the cause of delusion is more impressive in this than in any other.

1. From inaccuracy of conception arises incorrectness of expression; from which expression, conception, being produced again, error, from having been a momentary cause, comes to be a permanent effect.

In the very denomination commonly employed to signify the portion of time to which the fallacy refers, is virtually involved a false and deceptious proposition, which, from its being employed by every mouth, is at length, without examination, received as true.

What in common language is called old time, ought (with reference to any period at which the fallacy in question is employed) to be called young or early time.

As between individual and individual living at the same time and in the same situation, he who is old possesses, as such, more experience than he who is young;—as between generation and generation, the reverse of this is true, if, as in ordinary language, a preceding generation be, with reference to a succeeding generation, called old, the old or preceding generation could not have had so much experience as the succeeding. With respect to such of the materials or sources of wisdom which have come under the cognizance of their own senses, the two are on a par;—with respect to such of those materials and sources of wisdom as are derived from the reports of others, the later of the two possesses an indisputable advantage.

In giving the name of old or elder to the earlier generation of the two, the misrepresentation is not less gross, nor the folly of it less incontestable, than if the name of old man or old woman were given to the infant in its cradle.

What, then, is the wisdom of the times called old? is it the wisdom of gray hairs? No: it is the wisdom of the cradle.*

The learned and honourable gentlemen of Thibet do homage to superior wisdom—superiority raised to the degree of divinity—in the person of an infant lying and squalling in his cradle.

The learned and honourable gentlemen of Westminster set down as impostors the Lamas of Thibet, and laugh at the folly of the deluded people on whom such imposture passes for sincerity and wisdom.

But the worship paid at Thibet to the infant body of the present day, is, if not the exact counterpart, the type at least of the homage paid at Westminster to the infant minds of those who have lived in earlier ages.

2. Another cause of delusion which promotes the employment of this fallacy, is the reigning prejudice in favour of the dead—a prejudice which in former times contributed more than anything else to the practice of idolatry: the dead were speedily elevated to the rank of divinities; the superstitious invoked them, and ascribed a miraculous efficacy to their relics.

This prejudice, when examined, will be seen to be no less indefensible than pernicious—no less pernicious than indefensible.

By propagating this mischievous notion, and acting accordingly, the man of selfishness and malice obtains the praise of humanity and social virtue. With this jargon in his mouth, he is permitted to sacrifice the real interests of the living to the imaginary interests of the dead. Thus imposture, in this shape, finds in the folly or improbity of mankind a neverfailing fund of encouragement and reward.

De mortuis nil nisi bonum;—With all its absurdity, the adage is but too frequently received as a leading principle of morals. Of two attacks, which is the more barbarous—on a man that does feel it, or on a man that does not? On the man that does feel it, says the principle of utility: on the man that does not, says the principle of caprice and prejudice—the principle of sentimentalism—the principle in which imagination is the sole mover—the principle in and by which feelings are disregarded as not worth notice.

The same man who bepraises you when dead, would have plagued you without mercy when living.

Thus as between Pitt and Fox. While both were living, the friends of each reckoned so many adversaries in the friends of the other. On the death of him who died first, his adversaries were converted into friends. At what price this friendship was paid for by the people, is no secret.† See the Statute Book, see the debates of the times, and see Defence of Economy against Burke and Rose.‡

The cause of this so extensively-prevalent and extensively-pernicious propensity lies not very deep.

A dead man has no rivals,—to nobody is he an object of envy: in whosesoever way he may have stood when living—when dead, he no longer stands in anybody’s way. If he was a man of genius, those who denied him any merit during his life—even his very enemies, changing their tone all at once, assume an air of justice and kindness, which costs them nothing, and enables them, under pretence of respect for the dead, to gratify their malignity towards the living.

Another class of persons habitually exalt the past for the express purpose of depressing and discouraging the present generation.

It is characteristic of the same sort of persons, as well as of the same system of politics, to idolize, under the name of wisdom of our ancestors, the wisdom of untaught inexperienced generations, and to undervalue and cover with every expression of contempt that the language of pride can furnish, the supposed ignorance and folly of the great body of the people.∥

So long as they keep to vague generalities—so long as the two objects of comparison are each of them taken in the lump—wise ancestors in one lump, ignorant and foolish mob of modern times in the other—the weakness of the fallacy may escape detection. Let them but assign for the period of superior wisdom any determinate period whatsoever, not only will the groundlessness of the notion be apparent (class being compared with class in that period and the present one,) but, unless the antecedent period be, comparatively speaking a very modern one, so wide will be the disparity, and to such an amount in favour of modern times, that, in comparison of the lowest class of the people in modern times (always supposing them proficients in the art of reading, and their proficiency employed in the reading of newspapers,) the very highest and best informed class of these wise ancestors will turn out to be grossly ignorant.

Take, for example, any year in the reign of Henry the Eighth, from 1509 to 1546. At that time the House of Lords would probably have been in possession of by far the larger proportion of what little instruction the age afforded: in the House of Lords, among the laity, it might even then be a question whether without exception their Lordships were all of them able so much as to read. But even supposing them all in the fullest possession of that useful art, political science being the science in question, what instruction on the subject could they meet with at that time of day?

On no one branch of legislation was any book extant, from which, with regard to the circumstances of the then present times, any useful instruction could be derived; distributive law, penal law, international law, political economy, so far from existing as sciences, had scarcely obtained a name: in all those departments, under the head of quid faciendum, a mere blank: the whole literature of the age consisted of a meagre chronicle or two, containing short memorandums of the usual occurrences of war and peace, battles, sieges, executions, revels, deaths, births, processions, ceremonies, and other external events; but with scarce a speech or an incident that could enter into the composition of any such work as a history of the human mind—with scarce an attempt at investigation into causes, characters, or the state of the people at large. Even when at last, little by little, a scrap or two of political instruction came to be obtainable, the proportion of error and mischievous doctrine mixed up with it was so great, that whether a blank unfilled might not have been less prejudicial than a blank thus filled, may reasonably be matter of doubt.

It we come down to the reign of James the First, we shall find that Solomon of his time, eminently eloquent as well as learned, not only among the crowned but among uncrowned heads, marking out for prohibition and punishment the practices of devils and witches, and without any the slightest objection on the part of the great characters of that day in their high situations, consigning men to death and torment for the misfortune of not being so well acquainted as he was with the composition of the Godhead.

Passing on to the days of Charles the Second, even after Bacon had laid the foundations of a sound philosophy, we shall find Lord Chief-Justice Hale (to the present hour chief god of the man of law’s idolatry) unable to tell (so he says himself) what theft was; but knowing at the same time too well what witchcraft was; hanging men with the most perfect complacency for both crimes, amidst the applauses of all who were wise and learned in that blessed age.

Under the name of Exorcism, the Catholic liturgy contains a form of procedure for driving out devils:—even with the help of this instrument, the operation cannot be performed with the desired success but by an operator qualified by holy orders for the working of this as so many other wonders.

In our days and in our country the same object is attained, and beyond comparison more effectually, by so cheap an instrument as a common newspaper: before this talisman, not only devils, but ghosts, vampires, witches, and all their kindred tribes, are driven out of the land, never to return again: the touch of holy water is not so intolerable to them as the bare smell of printers’ ink.

If it is absurd to rely on the wisdom of our ancestors, it is not less so to vaunt their probity: they were as much inferior to us in that point as in all others; and the further we look back, the more abuses we shall discover in every department of government. Nothing but the enormity of those abuses has produced that degree of comparative amendment on which at present we value ourselves so highly. Till the human race was rescued from that absolute slavery under which ninetenths of every nation groaned, not a single step could be made in the career of improvement; and, take what period we will in the lapse of preceding ages, there is not one which presents such a state of things as any rational man would wish to see entirely re-established.

Undoubtedly, the history of past ages is not wanting in some splendid instances of probity and self-devotion; but in the admiration which these excite, we commonly overrate their amount, and become the dupes of an illusion occasioned by the very nature of an extensive retrospect. Such a retrospect is often made by a single glance of the mind: in this glance, the splendid actions of several ages (as if for the very purpose of conveying a false estimate of their number and contiguity) present themselves, as it were, in a a lump, leaving the intervals between them altogether unnoticed. Thus groves of trees, which at a distance present the appearance of thick and impenetrable masses, turn out on nearer approach to consist of trunks widely separated from each other.

Would you, then, have us speak and act as if we had never had any ancestors? Would you because recorded experience, and along with it wisdom, increases from year to year, annually change the whole body of our laws? By no means: such a mode of reasoning and acting would be more absurd even than that which has just been exposed; and provisional adherence to existing establishments is grounded on considerations much more rational than a reliance on the wisdom of our ancestors. Though the opinions of our ancestors are as such of little value, their practice is not the less worth attending to; that is, in so far as their practice forms part of our own experience. However, it is not so much from what they did, as from what they underwent (good included, as well as evil,) that our instruction comes. Independently of consequences, what they did, is no more than evidence of what they thought; nor yet, in legislation, is it evidence of what they thought best for the whole community, but only of what the rulers thought would be best for themselves, in periods when every species of abuse prevailed, unmitigated by the existence of either public press or public opinion. From the facts of their times, much information may be derived—from the opinions, little or none. As to opinions, it is rather from those which were foolish, than from those which were well grounded, that any instruction can be derived. From foolish opinions comes foolish conduct; from the most foolish conduct, the severest disaster; and from the severest disaster, the most useful warning. It is from the folly, not from the wisdom of our ancestors, that we have so much to learn; and yet it is to their wisdom, and not to their folly, that the fallacy under consideration sends us for instruction.

It seems, then, that our ancestors, considering the disadvantages under which they laboured, could not have been capable of exercising so sound a judgment on their interests as we on ours: but as a knowledge of the facts on which a judgment is to be pronounced is an indispensable preliminary to the arriving at just conclusions, and as the relevant facts of the later period must all of them individually, and most of them specifically, have been unknown to the man of the earlier period, it is clear that any judgment derived from the authority of our ancestors, and applied to existing affairs, must be a judgment pronounced without evidence; and this is the judgment which the fallacy in question calls on us to abide by, to the exclusion of a judgment formed on the completest evidence that the nature of each case may admit.

Causes of the propensity to be influenced by this Fallacy.

Wisdom of ancestors being the most impressive of all arguments that can be employed in defence of established abuses and imperfections, persons interested in this or that particular abuse are most forward to employ it.

But their exertions would be of little avail, were it not for the propensity which they find on the part of their antagonists to attribute to this argument nearly the same weight as those by whom it is relied on.

This propensity may be traced to two intimately-connected causes:—1. Both parties having been trained up alike in the school of the English lawyers, headed by Blackstone; and 2. Their consequent inability, for want of practice, to draw from the principle of general utility the justificative reason of everything that is susceptible of justification.

In the hands of a defender of abuse, authority answers a double purpose, by affording an argument in favour of any particular abuse which may happen to call for protection, and by causing men to regard with a mingled emotion of hatred and terror the principle of general utility, in which alone the true standard and measure of right and wrong is to be found.

In no other department of the field of knowledge and wisdom (unless that which regards religion be an exception) do leading men of the present times recommend to us this receipt for thinking and acting wisely. By no gentleman, honourable or right honourable, are we sent at this time of day to the wisdom of our ancestors for the best mode of marshalling armies, navigating ships, attacking or defending towns; for the best modes of cultivating and improving land, and preparing and preserving its products for the purposes of food, clothing, artificial light and heat; for the promptest and most commodious means of conveyance of ourselves and goods from one portion of the earth’s surface to another; for the best modes of curing, alleviating, or preventing disorders in our own bodies, and those of the animals which we contrive to apply to our use.

Why this difference? Only because, in any other part of the field of knowledge, legislation excepted (and religion, in so far as it has been taken for the subject of legislation,) leading men are not affected with that sinister interest which is so unhappily combined with power in the persons of those leading men who conduct governments as they are generally at present established.

Sir H. Davy has never had anything to gain, either from the unnecessary length, the miscarriage, or the unnecessary part of the expenses attendant on chemical experiments; he therefore sends us either to his own experiments, or to those of the most enlightened and fortunate of his contemporaries, and not to the notions of Stahl, Van Helmont, or Paracelsus.

CHAPTER III.

1. Fallacy of Irrevocable Laws.

2. Fallacy of Vows—(ad superstitionem.)

The two fallacies brought to view in this chapter are intimately connected, and require to be considered together: the object in view is the same in both—the difference lies only in the instrument employed; and both of them are in effect the fallacy of the wisdom of our ancestors, pushed to the highest degree of extravagance and absurdity.

The object is to tie up the hands of future legislators by obligations supposed to be indissoluble.

In the case of the fallacy derived from the alleged irrevocable nature of certain laws, or to speak briefly, the fallacy of Irrevocable laws, the instrument employed is a contract—a contract entered into by the ruling powers of the state in question, with the ruling powers of some other party. This other party may be either the sovereign of some other state, or the whole or some part of the people of the state in question.

In the case of the fallacy derived from vows, a supernatural power is called in and employed in the character of guarantee.

Fallacy of Irrevocable Laws.

Exposition.—A law, no matter to what effect, is proposed to a legislative assembly, and, no matter in what way, it is by the whole or a majority of the assembly regarded as being of a beneficial tendency. The fallacy in question consists in calling upon the assembly to reject it notwithstanding, upon the single ground, that by those who in some former period exercised the power which the present assembly is thus called on to exercise, a regulation was made, having for its object the precluding for ever, or to the end of a period not yet expired, all succeeding legislators from enacting a law to any such effect as that now proposed.

What will be tolerably clear to every man who will allow himself to think it so, is—that, notwithstanding the profound respect we are most of us so ready to testify towards our fellow-creatures as soon as the moment has arrived after which it can be of no use to them, the comforts of those who are out of the way of all the comforts we can bestow, as well as of all the sufferings we can inflict, are not the real objects to which there has been this readiness to sacrifice the comforts of present and future generations, and that therefore there must be some other interest at the bottom.

Exposure.—1. To consider the matter in the first place on the ground of general utility.

At each point of time, the sovereign for the time possesses such means as the nature of the case affords, for making himself acquainted with the exigencies of his own time.

With relation to the future, the sovereign has no such means of information; it is only by a sort of vague anticipation—a sort of rough and almost random guess drawn by analogy, that the sovereign of this year can pretend to say what will be the exigencies of the country this time ten years.

Here, then, to the extent of the pretended immutable law, is the government transferred from those who possess the best possible means of information, to those who, by their very position, are necessarily incapacitated from knowing anything at all about the matter.

Instead of being guided by their own judgment, the men of the nineteenth century shut their own eyes, and give themselves up to be led blindfold by the men of the eighteenth century.

The men who have the means of knowing the whole body of the facts, on which the correctness and expediency of the judgment to be formed must turn, give up their own judgment to that of a set of men entirely destitute of any of the requisite knowledge of such facts.

Men who have a century more of experience to ground their judgments on, surrender their intellect to men who had a century less experience, and who, unless that deficiency constitutes a claim, have no claim to preference.

If the prior generation were, in respect of intellectual qualification, ever so much superior to the subsequent generation,—if it understood so much better than the subsequent generation itself, the interest of that subsequent generation,—could it have been in an equal degree anxious to promote that interest, and consequently equally attentive to those facts with which, though in order to form a judgment it ought to have been, it is impossible that it should have been acquainted? In a word, will its love for that subsequent generation be quite so great as that same generation’s love for itself?

Not even here, after a moment’s deliberate reflection, will the assertion be in the affirmative.

And yet it is their prodigious anxiety for the welfare of their posterity that produces the propensity of these sages to tie up the hands of this same posterity for evermore, to act as guardians to its perpetual and incurable weakness, and take its conduct for ever out of its own hands.

If it be right that the conduct of the 19th century should be determined not by its own judgment but by that of the 18th, it will be equally right that the conduct of the 20th century should be determined not by its own judgment but by that of the 19th.

The same principle still pursued, what at length would be the consequence? That in process of time, the practice of legislation would be at an end: the conduct and fate of all men would be determined by those who neither knew nor cared anything about the matter; and the aggregate body of the living would remain for ever in subjection to an inexorable tyranny, exercised, as it were, by the aggregate body of the dead.

This irrevocable law, whether good or bad at the moment of its enactment, is found at some succeeding period to be productive of mischief—uncompensated mischief—to any amount. Now, of this mischief, what possibility has the country of being rid?

A despotism, though it were that of a Caligula or a Nero, might be to any degree less mischievous, less intolerable, than any such immutable law. By benevolence (for even a tyrant may have his moments of benevolence,) by benevolence, by prudence—in a word, by caprice—the living tyrant might be induced to revoke his law, and release the country from its consequences. But the dead tyrant! who shall make him feel? who shall make him hear?

Let it not be forgotten, that it is only to a bad purpose that this and every other instrument of deception will in general be employed.

It is only when the law in question is mischievous, and generally felt and understood to be such, that an argument of this stamp will be employed in the support of it.

Suppose the law a good one, it will be supported, not by absurdity and deception, but by reasons drawn from its own excellence.

But is it possible that the restraint of an irrevocable law should be imposed on so many millions of living beings by a few scores, or a few hundreds, whose existence has ceased?—can a system of tyranny be established, under which the living are all slaves, and a few among the dead, their tyrants?

The production of any such effect in the way of constraint being physically impossible,—if produced in any degree, it must be by force of argument—by the force of fallacy, and not by that of legislative power.

The means employed to give effect to this device may be comprised under two heads; the first of them exhibiting a contrivance not less flagitious than the position itself is absurd.

1. In speaking of a law which is considered as repugnant to any law of the pretended immutable class, the way has been to call it void. But to what purpose call it void? Only to excite the people to rebellion in the event of the legislator’s passing any such void law. In speaking of a law as void, either this is meant or nothing. It is a sophism of the same cast as that expressed by the words rights of man, though played off in another shape, by a different set of hands, and for the benefit of a different class.

Are the people to consider the law void? They are then to consider it as an act of injustice and tyranny under the name of law;—as an act of power exercised by men who have no right to exercise it: they are to deal by it as they would by the command of a robber; they are to deal by those who, having passed it, take upon them to enforce the execution of it, as they would deal, whenever they found themselves strong enough, by the robber himself.*

2. The other contrivance for maintaining the immutability of a given law, is derived from the notion of a contract or engagement. The faithful observance of contracts being one of the most important of the ties that bind society together, an argument drawn from this source cannot fail to have the appearance of plausibility.

But be the parties interested who they may, a contract is not itself an end—it is but a means toward some end; and in cases where the public is one of the parties concerned, it is only in so far as that end consists of the happiness of the whole community, taken in the aggregate, that such contract is worthy to be observed.

Let us examine the various kinds of contract to which statesmen have endeavoured to impart this character of perpetuity:—1. Treaties between state and foreign state, by which each respectively engages its government and people; 2. Grant of privileges from the sovereign to the whole community in the character of subjects; 3. Grant of privileges from the sovereign to a particular class of subjects; 4. New arrangement of power between different portions or branches of the sovereignty, or new declaration of the rights of the community; 5. Incorporative union between two sovereignties having or not having a common head.

Take, then, for the subject and substance of the contract, any one of these arrangements: so long as the happiness of the whole community, taken in the aggregate, is in a greater degree promoted by the exact observance of the contract, than it would be by any alteration, exact ought to be the observance:—on the contrary, if, by any given change, the aggregate of happiness would be in a greater degree promoted than by the exact observance, such change ought to be made.

True it is, that, considering the alarm and danger which is the natural result of every breach of a contract to which the sovereignty is party, in case of any change with respect to such contract, the aggregate of public happiness will be in general rather diminished than promoted, unless, in case of disadvantage produced to any party by the change, such disadvantage be made up by adequate compensation.

Let it not be said that this doctrine is a dangerous doctrine, because the compensation supposed to be stipulated for as adequate, may prove but a nominal, or at best but an inadequate, compensation. Reality and not pretence, probity not improbity, veracity not mendacity, are supposed alike on all sides;—the contract a real contract, the change a real change, the compensation an adequate as well as real compensation. Instead of probity, suppose improbity in the sovereignty; it will be as easy to deny the existence, or explain away the meaning of the contract, or to deny or explain away the change, as, instead of a real to give a nominal, instead of an adequate to give an inadequate, compensation.

To apply the foregoing principles to the cases above enumerated, one by one:—

1. In the case of the contract or treaty between state and foreign state, the dogma of immutability has seldom been productive of any considerable practical inconvenience: the ground of complaint has arisen rather from a tendency to change than a too rigid adherence to the treaty.

However, some commercial treaties between state and state, entered into in times of political ignorance or error, and pernicious to the general interests of commerce, are frequently upheld under a pretence of regard for the supposed inviolability of such contracts, but in reality from a continuance of the same ignorance, error, antipathy or sinister interest, which first occasioned their existence. It can seldom or never happen that a forced direction thus given to the employment of capital can ultimately prove advantageous to either of the contracting parties; and when the pernicious operation of such a treaty on the interests of both parties has been clearly pointed out, there can be no longer any pretence for continuing its existence. Notice, however, of any proposed departure from the treaty, ought to be given to all the parties concerned; sufficient time should be afforded to individuals engaged in traffic, under the faith of the treaty, to withdraw, if they please, their capitals from such traffic, and in case of loss, compensation as far as possible ought to be afforded.

2. Grant of privilege from the sovereign to the whole community in the character of subjects.—If, by the supposed change, privileges to equal value be given in the room of such as are abrogated, adequate compensation is made: if greater privileges are substituted, there is the greater reason for supporting the measure.

3. Grant of privileges from the sovereign to a particular class of subjects.

No such particular privilege ought to have been granted, if the aggregate happiness of the community was likely to be thereby diminished: but, unless in case of a revocation, adequate compensation be here also made, the aggregate happiness of the community will not be increased by the change; the happiness of the portion of the community to be affected by the change, being as great a part of the aggregate happiness as that of any other portion of equal extent.

Under this head are included all those more particular cases in which the sovereign contracts with this or that individual, or assemblage of individuals, for money or money’s worth, to be supplied, or service otherwise to be rendered.

4. New arrangement or distribution of powers, as between different portions or branches of the sovereignty, or new declaration of the rights of the community.

Let the supposition be, that the result will not be productive of a real addition to the aggregate stock of happiness on the part of the whole community,—it ought not to be made: let the supposition be the reverse,—then, notwithstanding the existence of the contract, the change is such as it is right and fitting should be made.

The first of these can never furnish a case for compensation, unless in so far as, without charge or disadvantage to the people, the members of the sovereignty can contrive to satisfy one another; such members of the sovereignty being, as to the rest of the community, not proprietors but trustees.

The frame or constitution of the several American United States, so far from being declared immutable or imprescriptible, contains an express provision, that a convention shall be holden at intervals for the avowed object of revising and improving the constitution, as the exigencies of succeeding times may require. In Europe, the effect of declaring this or that article in a new distribution of powers, or in the original frame of a constitution, immutable, has been to weaken the sanction of all laws. The article in question turns out to be mischievous or impracticable; instead of being repealed, it is openly or covertly violated; and this violation affords a precedent or pretext for the non-observance of arrangements clearly calculated to promote the aggregate happiness of the community.

5. Case of an incorporative union between two sovereignties, having or not having a common head.

Of all the cases upon the list, this is the only one which is attended with difficulty.

This is the case in which, at the same time that a contract with detailed clauses is at once likely and fit to be insisted on, compensation, that compensation without which any change would not be consistent with general utility in the shape of justice or in any other shape, is an operation attended with more difficulty than in any other of these cases.

Distressing indeed would be the difficulty, were it not for one circumstance which happily is interwoven in the very nature of the case.

At the time of the intended union, the two states (not to embarrass the case by taking more than two at a time) are, with relation each to the other, in a greater or less degree foreign and independent states.

Of the two uniting states, one will generally be more, the other less, powerful. If the inequality be considerable, the more powerful state, naturally speaking, will not consent to the union, unless, after the union, the share it possesses in the government of the new-framed compound state be greater by a difference bearing some proportion to the difference in prosperity between the two states.

On the part of the less powerful state, precautions against oppression come of course.

Wherever a multitude of human beings are brought together, there is but too much room for jealousy, suspicion, and mutual ill-will.

In the apprehension of each, the others, if they obtain possession of the powers exercised by the common government, will be supposed to apply them unjustly. In men or in money, in labour or in goods, in a direct way or in some indirect one, it may be the study of the new compound government, under the influence of that part of the quondam government which is predominant in it, to render the pressure of the contributions proportionably more severe upon the one portion of the new compounded state than upon the other, or to force upon it new customs, new religious ceremonies, new laws.

Let the hands of the new government remain altogether loose: one of the two compound nations may be injured and oppressed by the other.

Tie up the hands of the government in such degree as is requisite to give to each nation a security against injustice at the hands of the other: sooner or later comes the time in which the inconveniences resulting from the restriction will become intolerable to one or other, or to both.

But sooner or later the very duration of the union produces the natural remedy.

Sooner or later, having for such or such a length of time been in the habit of acting in subjection to one government, the two nations will have become melted into one, and mutual apprehensions will have been dissipated by conjunct experience.

All this while, in one or both of the united states, the individuals will be but too numerous and too powerful, who by sinister interest and interest-begotten prejudice will stand engaged to give every possible countenance and intensity to those fears and jealousies—to oppose to the entire composure of them every degree of retardation.

If in either of the united communities, at the time of the union, there existed a set of men more or less numerous and powerful, to whom abuse or imperfection in any shape was a source of profit; whatsoever restrictions may have been expressed in the contract, these restrictions will of course be laid hold of by the men thus circumstanced, and applied as far as possible to the giving protection and continuance to a state of things agreeable or beneficial to themselves.

At the time of the union between England and Scotland, the Tory party, of whom a large proportion were Jacobites, and all or most of them high-churchmen, had acquired an ascendant in the House of Commons.

Here, then, a favourable occasion presented itself to these partisans of Episcopacy, for giving perpetuity to the triumph they had obtained over the English Presbyterians, by the Act of Uniformity proclaimed in the time of Charles the Second.*

In treaties between unconnected nations, where an advantage in substance is given to one, for the purpose of saving the honour of the other, it has been the custom to make the articles bear the appearance of reciprocity upon the face of them; as if, the facilitating the vent of French wines in England being the object of a treaty, provision were made in it that wine of the growth of either country might be imported into the other, duty free.

By the combined astutia of priestcraft and lawyercraft, advantage was taken of this custom to rivet for ever those chains of ecclesiastical tyranny which, in the precipitation that attended the restoration, had been fastened upon the people of England. For securing the 45 Scotch members from being outnumbered by the 513 English ones, provision had been made in favour of the church of Scotland: therefore, on the principle of reciprocity, for securing the 513 English members from being outnumbered by the 45 Scotch ones, like provision was made in favour of the church of England.

Blackstone avails himself of this transaction for giving perpetuity to whatever imperfections may be founded in the ecclesiastical branch of the law, and the official establishment of England.

On a general account which he has been giving,† of the articles and act of union, he grounds three observations:—

1. “That the two kingdoms are now so inseparably united, that nothing can ever disunite them again, except the mutual consent of both, or the successful resistance of either, upon apprehending an infringement of those points which, when they were separate and independent nations, it was mutually stipulated should be “fundamental and essential conditions” of the union.

2. “That, whatever else may be deemed fundamental and essential conditions,” the preservation of the two churches of England and Scotland, in the same state that they were in at the time of the union, and the maintenance of the acts of uniformity which establish our common prayer, are expressly declared so to be.

3. “That therefore any alteration in the constitution of either of those churches, or in the liturgy of the church of England (unless with the consent of the respective churches collectively or representatively given,) would be an infringement of these “fundamental and essential conditions,” and greatly endanger the union.”

On the original device, an improvement has, we see, been made by the ingenuity of the orthodox and learned commentator. If—as for example, by the alteration of any of the 39 articles—if, by the abolition of any of the English ecclesiastical sinecures, or by any efficient measure for ensuring the performance of duty in return for salary, the ecclesiastical branch of the English official establishment were brought so much the nearer to what it is in Scotland, the Scotch, fired by the injury done to them, would cry out, A breach of faith! and call for a dissolution of the union.

To obviate this danger—a great one he denominates it—his ingenuity, in concert with his piety, has however furnished us with an expedient:—“The consent of the church, collectively or representatively given,” is to be taken; by which is meant, if anything, that by the revival of the convocation, or some other means, the clergy of England are to be erected into a fourth estate.

What is evident is, that unless the sinister influence of the Crown could be supposed to become felo de se, and employ itself in destroying a large portion of itself, nothing but a sincere persuasion of the utility of a change in relation to any of the points in question, and that entertained by a large proportion of the English members in each House, could ever be productive of any such change;—that, in any attempt to force the discipline of the church of Scotland upon the church of England, the 45 Scotch members in the House of Commons, supposing them all unanimous, would have to outnumber, or somehow or other to subdue, the 513 English ones;—that in the House of Lords, the 16 Scotch members, supposing all the lay lords indifferent to the fate of the church of England, would in like manner have to outnumber the 26 bishops and archbishops.

But the Tories, who were then in vigour, feared that they might not always be so, and seized that opportunity to fetter posterity by an act which should be deemed irrevocable.

The “administration of justice in Scotland.”* This forms the subject of the 19th article, which has for its avowed object the securing the people of Scotland against any such encroachments as might otherwise be made by the lawyers of England, by the use of those fictions and other frauds, in the use of which they had been found so expert. But throughout the whole course of this long article, the most rational and uniform care is taken to avoid all such danger as that of depriving the people of Scotland of such benefit as, from time to time, they might stand a chance of receiving at the hands of the united parliament, by improvements in the mode of administering justice: “subject to such regulations as shall be made by the parliament of Great Britain,” is a clause over and over again repeated.

It would have been better for Scotland, if on the subject of the next article, viz. “heritable offices,” including “heritable jurisdictions,” the like wisdom had presided. By that short article, those public trusts, together, with others therein mentioned, are, on the footing of “rights of property,” reserved to the owners; yet still without any expression of that fanatic spirit which, on the field of religion, had in the same statute occupied itself in the endeavour to invest the conceits of mortal man with the attribute of immortality.

Nine-and-thirty years after, came the act† for abolishing these same heritable jurisdictions. Here was an act made in the very teeth of the act of union.

Mark now the sort of discernment, or of sincerity, that is to be learnt from Blackstone.

In a point-blank violation of the articles of union, in the abolition of those heritable jurisdictions which it was the declared object of one of its articles (20) to preserve, he saw nothing to “endanger the union.”

But suppose any such opinion to prevail, as that it is not exactly true, that by the mere act of being born, every human being merits damnation‡ (if by damnation be meant everlasting torment, or punishment in any other shape,) and a corresponding alteration were made in the set of propositions called the thirty-nine articles, the union would be “greatly endangered.”

Between twenty and thirty years afterwards, at the suggestion of an honest member of the Court of Session, came upon the carpet, for the first time, the idea of applying remedies to some of the most flagrant imperfections in the administration of Scottish justice; and thereupon came out a pamphlet from James Boswell, declaiming, in the style of schoolboy declamation, on the injury that would be done to the people of Scotland by rendering justice, or what goes by that name, a little less inaccessible to them, and the breach that would be made in the faith plighted by that treaty, which, to judge from what he says of it, he had never looked at.

Again, in 1806, when another demonstration was made of applying a remedy to the abuses and imperfections of the system of judicature in Scotland, everything that could be done in that way was immediately reprobated by the Scotch lawyers as an infringement of that most sacred of all sacred bonds—the union: nor, for the support of the brotherhood on the other side of the Tweed, was a second sight of the matter in the same point of view wanting in England.

As to any such design as that of oppressing their fellow-subjects in Scotland, nothing could be further from the thoughts of the English members; neither for good nor for evil uses, was any expense of thought bestowed upon the matter: the ultimate object, as it soon became manifest, was the adding an item or two to the list of places.

Upon the whole, the following is the conclusion that seems to be dictated by the foregoing considerations. Every arrangement by which the hands of the sovereignty for the time being are attempted to be tied up, and precluded from giving existence to a fresh arrangement, is absurd and mischievous; and, on the supposition that the utility of such fresh arrangement is sufficiently established, the existence of a prohibitive clause to the effect in question ought not to be considered as opposing any bar to the establishment of it.

True it is, that all laws, all political institutions, are essentially dispositions for the future; and the professed object of them is, to afford a steady and permanent security to the interests of mankind. In this sense, all of them may be said to be framed with a view to perpetuity; but perpetual is not synonymous with irrevocable; and the principle on which all laws ought to be, and the greater part of them have been, established, is that of defeasible perpetuity; a perpetuity defeasible only by an alteration of the circumstances and reasons on which the law is founded.

To comprise all in one word—reason, and that alone, is the proper anchor for a law, for everything that goes by the name of law. At the time of passing his law, let the legislator deliver, in the character of reasons, the considerations by which he was led to the passing of it.*

This done, so long as in the eyes of the succeeding legislators the state of facts on which the reasons are grounded appears to continue without material change, and the reasons to appear satisfactory, so long the law continues: but no sooner do the reasons cease to appear satisfactory, or the state of the facts to have undergone any such change as to call for an alteration in the law, than an alteration in it, or the abrogation of it, takes place accordingly.

A declaration or assertion that this or that law is immutable, so far from being a proper instrument to insure its permanency, is rather a presumption that such law has some mischievous tendency.

The better the law, the less is any such extraneous argument likely to be recurred to for the support of it; the worse the law, and thence the more completely destitute of all intrinsic support, the more likely is it that support should be sought for it from this extraneous source.

But though it is the characteristic tendency of this instrument to apply itself to bad laws in preference to good ones, there is another, the tendency of which is to apply itself to good ones in preference to bad: this is what may be termed justification; the practice of annexing to each law the considerations by which, in the character of reasons, the legislator was induced to adopt it;† a a practice which, if rigidly pursued, must at no distant interval put an exclusion on all bad laws.

To the framing of laws, so constituted, that, being good in themselves, an accompaniment of good and sufficient reasons should also be given for them, there would be requisite, in the legislator, a probity not to be diverted by the action of sinister interest, and intelligence adequate to an enlarged comprehension and close application of the principle of general utility: in other words, the principle of the greatest happiness of the greatest number.

But to draw up laws without reasons, and laws for which good reasons are not in the nature of the case to be found, requires no more than the union of will and power.

The man who should produce a body of good laws with an accompaniment of good reasons, would feel an honest pride at the prospect of holding thus in bondage a succession of willing generations: his triumph would be to leave them the power, but to deprive them of will, to escape. But to the champions of abuse, by whom, amongst other devices, the conceit of immutable laws is played off against reform, in whatever shape it presents itself, every use of reason is as odious as the light of the sun to moles and burglars.

2.

Vows or Promissory Oaths.

The object in this fallacy is the same as in the preceding: but to the absurdity involved in the notion of tying up the hands of generations yet to come, is added, in this case, that which consists in the use sought to be made of supernatural power: the arm pressed into the service is that of the invisible and supreme ruler of the universe.

The oath taken, the formularies involved in it being pronounced,—is or is not the Almighty bound to do what is expected of him? Of the two contradictory propositions, which is it that you believe?

If he is not bound, then the security, the sanction, the obligation, amounts to nothing.

If he is bound, then observe the consequence:—the Almighty is bound; and by whom bound? Of all the worms that crawl about the earth in the shape of men, there is not one who may not thus impose conditions on the supreme ruler of the universe.

And to what is he bound? To any number of contradictory and incompatible observances which legislators, tyrants, or madmen, may, in the shape of an oath, be pleased to assign.

Eventual, it must be acknowledged, and no more, is the power thus exercised over, the task thus imposed upon, the Almighty. So long as the vow is kept, there is nothing for him to do. True: but no sooner is the vow broken, than his task commences—a task which consists in the inflicting on him by whom the vow is broken, a punishment which, when it is inflicted, is of no use in the way of example, since nobody ever sees it.

The punishment, it may be said, when inflicted, will be such exactly, as in the judgment of the almighty and infallible judge, will be best adapted to the nature of the offence.

Yes: but what offence? Not the act which the oath was intended to prevent, for that act may be indifferent, or even meritorious; and, if criminal, ought to be punished independently of the oath: the only offence peculiar to this case, is the profanation of a ceremony; and the profanation is the same, whether the act by which the profanation arises be pernicious or beneficial.

It is in vain to urge, in this or that particular instance, in proof of the reasonableness of the oath, the reasonableness of the prohibition or command which it is thus employed to perpetuate.

The objection is to the principle itself: to any idea of employing an instrument so unfit to be employed.

No sort of security is given, or can be given, for the applying it to the most beneficial purpose, rather than to the most pernicious.

On the contrary, it is more likely to be applied to a pernicious than to a beneficial purpose;

Because, the more manifestly and undeniably beneficial the observance of the prohibition in question would be in the eyes of future generations, the more likely is the prohibition to be observed, independently of the oath: as, on the other hand, the more likely the prohibition is not to be observed otherwise, the greater is the demand for a security of this extraordinary complexion to enforce the observance.

We come now to the instance in which, by the operation of the fallacy here in question, the ceremony of an oath has been endeavoured to be applied to the perpetuation of misrule.

Among the statutes passed in the first parliament of William and Mary, is one entitled “An Act for establishing the Coronation Oath.”*

The form in which the ceremony is performed is as follows:—By the archbishop or bishop, certain questions are put to the monarch; and it is of the answers given to these questions that the oath is composed.

Of these questions, the third is as follows—“Will you, to the utmost of your power, maintain the laws of God, the true profession of the Gospel, and the protestant reformed religion established by law? And will you preserve unto the bishops and clergy of this realm, and to the churches committed to their charge, all such rights and privileges as by law do or shall appertain unto them, or any of them?”

Answer: “All this I promise to do.”

After this, anno 1706, comes the Act of Union, in the concluding article of which it is said, “That after the demise of her Majesty . . . . the sovereign next succeeding to her Majesty in the royal government of the kingdom of Great Britain, and so for ever hereafter, every king or queen succeeding and coming to the royal government of the kingdom of Great Britain, at his or her coronation, shall in the presence,” &c. “take and subscribe an oath to maintain and preserve inviolably the said settlement of the church, and the doctrine, worship, discipline and government thereof, as by law established, within the kingdoms of England and Ireland, the dominion of Wales, and town of Berwick-upon-Tweed, and the territories thereunto belonging.”†

A notion was once started, and upon occasion may but too probably be broached again, that by the above clause in the coronation oath, the king stands precluded from joining in the putting the majority of the Irish upon an equal footing with the minority, as well as from affording to both together relief against the abuses of the ecclesiastical establishment of that country.

In relation to this notion, the following propositions have already, it is hoped, been put sufficiently out of doubt:—

1. That it ought not to be in the power of the sovereignty to tie up its own hands, or the hands of its successors.

2. That, on the part of the sovereignty, no such power can have existence, either here or anywhere else.

3. That, therefore, all attempts to exercise any such power are, in their own nature, to use the technical language of lawyers, null and void.

4. Another, which will, it is supposed, appear scarcely less clear, is, that no such anarchical wish or expectation was entertained by the framers of the oath.

The proposition maintained is, that to any bills, to the effect in question, the monarch is, by this third and last clause in the oath, precluded from giving his assent: if so, he is equally precluded from giving his assent to any bills, to any proposed laws whatever.

It is plainly in what is called his executive, and not in his legislative capacity, that the obligation in question was meant to attach upon the monarch.

So loose are the words of the act, that if they were deemed to apply to the monarch in his legislative capacity, he might find in them a pretence for refusing assent to almost anything he did not like.

If by this third clause he stands precluded from consenting to any bill, the effect of which would be to abolish or vary any of the “rights” or “privileges” appertaining to the bishops or clergy, or “any of them,” then by the first clause he stands equally precluded from giving his concurrence to any law, the effect of which would be to abolish or change any other rights. For by this first clause he is made “solemnly” to “promise and swear to govern the people . . . . according to the statutes in parliament agreed on, and the laws and customs of the same.” After this, governing according to any new law, he could not govern according to the old law abrogated by it.

If, by any such ceremony, misrule in this shape could be converted into a duty or a right, so might it in any other.

If Henry VIII. at his coronation had sworn to “maintain” that Catholic “religion,” which for so many centuries was “established by law,” and by fire and sword to keep out the Protestant religion, and had been considered bound by such oath, he could never have taken one step towards the Reformation, and the religion of the state must have been still Catholic.

But would you put a force upon the conscience of your sovereign? By any construction, which in your judgment may be the proper one, would you preclude him from the free exercise of his?

Most assuredly not—even were it as completely within as it is out of my power.

All I plead for is, that on so easy a condition as that of pronouncing the word conscience, it may not be in his power either to make himself absolute, or in any shape to give continuance to misrule.

Let him but resign his power, conscience can never reproach him with any misuse of it.

It seems difficult to say what can be a misuse of it, if it be not a determinate and persevering habit of using it in such a manner as in the judgment of the two houses is not “conducive,” but repugnant “to the utility of the subjects,” with reference to whom, and whose utility alone, either laws or kings can be of any use.

According to the form in which it is conceived, any such engagement is in effect either a check or a licence:—a licence under the appearance of a check, and for that very reason but the more efficiently operative.

Chains to the man in power? Yes: but such as he figures with on the stage—to the spectators as imposing, to himself as light as possible. Modelled by the wearer to suit his own purposes, they serve to rattle, but not to restrain.

Suppose a king of Great Britain and Ireland to have expressed his fixed determination, in the event of any proposed law being tendered to him for his assent, to refuse such assent, and this not on the persuasion that the law would not be “for the utility of the subjects,” but that by his coronation oath he stands precluded from so doing,—the course proper to be taken by parliament, the course pointed out by principle and precedent would be, a vote of abdication—a vote declaring the king to have abdicated his royal authority, and that, as in case of death or incurable mental derangement, now is the time for the person next in succession to take his place.

In the celebrated case in which a vote to this effect was actually passed, the declaration of abdication was in lawyer’s language a fiction,—in plain truth a falsehood,—and that falsehood a mockery; not a particle of his power was it the wish of James to abdicate, to part with; but to increase it to a maximum, was the manifest object of all his efforts.

But in the case here supposed, with respect to a part, and that a principal part, of the royal authority, the will and purpose to abdicate is actually declared: and this, being such a part, without which the remainder cannot, “to the utility of the subjects,” be exercised, the remainder must of necessity be, on their part and for their sake, added.*

CHAPTER IV.

NO-PRECEDENT ARGUMENT—(ad verecundiam.)

Exposition.—“The proposition is of a novel and unprecedented complexion: the present is surely the first time that any such thing was ever heard of in this house.”

Whatsoever may happen to be the subject introduced, above is a specimen of the infinite variety of forms in which the opposing predicate may be clothed.

To such an observation there could be no objection, if the object with which it were made was only to fix attention to a new or difficult subject: “Deliberate well before you act, as you have no precedent to direct your course.”

Exposure.—But in the character of an argument, as a ground for the rejection of the proposed measure, it is obviously a fallacy.

Whether or no the alleged novelty actually exists, is an inquiry which it can never be worth while to make.

That it is impossible that it should in any case afford the smallest ground for the rejection of the measure,—that the observation is completely irrelevant in relation to the question, whether or no it is expedient that such a measure should be adopted,—is a proposition to which it seems difficult to conceive how an immediate assent can be refused. If no specific good is indicated as likely to be produced by the proposed measure, this deficiency is itself sufficient to warrant the rejection of it. If any such specific good is indicated, it must be minute indeed, if an observation of this nature can afford a sufficient ground for the rejection of the measure.

If the observation presents a conclusive objection against the particular measure proposed, so it would against any other that ever was proposed, including every measure that ever was adopted, and therein every institution that exists at present. If it proves that this ought not to be done, it proves that nothing else ought ever to have been done.

It may be urged, that if the measure had been a fit one, it would have been brought upon the carpet before. But there are several obstacles, besides the inexpediency of a measure, which, for any length of time, may prevent its being brought forward:—

1. If, though beyond dispute promotive of the interest of the many, there be anything in it that is adverse to the interests, the prejudices, or the humours of the ruling few, the wonder is, not that it should not have been brought forward before, but that it should be brought forward even now.

2. If in the complexion of it there be anything which it required a particular degree of ingenuity to contrive and adapt to the purpose, this would of itself be sufficient to account for the tardiness of its appearance.

In legislation, the birth of ingenuity is obstructed and retarded by difficulties beyond any which exist in other matters. Besides the more general sinister interest of the powerful few in whose hands the functions of government are lodged, the more particular sinister interest affecting the body of lawyers, is one to which any given measure, in proportion to the ingenuity displayed in it, is likely to be adverse.

Measures which come under the head of indirect legislation, and in particular those which have the quality of executing themselves, are the measures which, as they possess most efficiency when established, so they require greater ingenuity in the contrivance. Now, in proportion as laws execute themselves—in other words, are attended with voluntary obedience—in that proportion are they efficient; but it is only in proportion as they fail of being efficient, that to the man of law they are beneficial and productive; because it is only in proportion as they stand in need of enforcement, that business makes its way into the hands of the man of law.

CHAPTER V.

1. Self-assumed Authority—(ad ignorantiam; ad verecundiam.)

2. The Self-trumpeter’s fallacy.

This fallacy presents itself in two shapes:—1. An avowal made with a sort of mock modesty and caution by a person in exalted station, that he is incapable of forming a judgment on the question in debate, such incapacity being sometimes real, sometimes pretended; 2. Open assertion, by a person so situated, of the purity of his motives and integrity of his life, and the entire reliance which may consequently be reposed on all he says or does.

I. The first is commonly played off as follows:—An evil or defect in our institutions is pointed out clearly, and a remedy proposed, to which no objection can be made; up starts a man high in office, and, instead of stating any specific objection, says, “I am not prepared” to do so and so, “I am not prepared to say,” &c. The meaning evidently intended to be conveyed is, “If I, who am so dignified, and supposed to be so capable of forming a judgment, avow myself incompetent to do so, what presumption, what folly, must there be in the conclusion formed by any one else!” In truth, this is nothing else but an indirect way of browbeating—arrogance under a thin veil of modesty.

If you are not prepared to pass a judgment, you are not prepared to condemn, and ought not, therefore, to oppose: the utmost you are warranted in doing, if sincere, is to ask for a little time for consideration.

Supposing the unpreparedness real, the reasonable and practical inference is—say nothing, take no part in the business.

A proposition for the reforming of this or that abuse in the administration of justice, is the common occasion for the employment of this fallacy.

In virtue of his office, every judge, every law-officer, is supposed and pronounced to be profoundly versed in the science of the law.

Yes; of the science of the law as it is, probably as much as any other man: but law as it ought to be, is a very different thing; and the proposal in question has for its avowed, and commonly for its real object, the bringing law as it is, somewhat nearer to law as it ought to be. But this is one of those things for which the great dignitary is sure to be at all times unprepared,—unprepared to join in any such design, everything of this sort, having been at all times contrary to his interest,—unprepared so much as to form any judgment concerning the conduciveness of the proposed measure to such its declared object: in any such point of view it has never been his interest to consider it.

A mind that, from its first entrance upon this subject, has been applying its whole force to the inquiry as to what are the most effectual means of making its profit of the imperfections of the system,—a mind to which, of consequence, the profit from these sources of affliction has been all along an object of complacency, and the affliction itself, at best, but an object of indifference,—a mind which has, throughout the whole course of its career, been receiving a correspondent bias, and has in consequence contracted a correspondent distortion,—cannot with reason be expected to exert itself with much alacrity or facility in a track so opposite and so new.

For the quiet of his conscience, if, at the outset of his career, it were his fortune to have one, he will naturally have been feeding himself with the notion, that if there be anything that is amiss, in practice it cannot be otherwise; which being granted, and, accordingly, that suffering to a certain amount cannot but take place, whatsoever profit can be extracted from it, is fair game, and as such belongs of right to the first occupant among persons duly qualified.

The wonder would not be great if an officer of the military profession should exhibit, for a time at least, some awkwardness if forced to act in the character of a surgeon’s mate: to inflict wounds requires one sort of skill—to dress and heal them requires another. Telephus is the only man upon record who possessed an instrument by which wounds were with equal dispatch and efficiency made and healed. The race of Telephus is extinct; and as to his spears, if ever any of them found their way into Pompeii or Herculaneum, they remain still among the ruins.

Unfortunately, in this case, were the ability to form a judgment ever so complete, the likelihood of co-operation would not be increased. None are so completely deaf as those who will not hear—none are so completely unintelligent as those who will not understand.

Call upon a chief-justice to concur in a measure for giving possibility to the recovery of a debt,—the recovery of which is in his own court rendered impossible by costs which partly go into his own pocket,—as well might you call upon the Pope to abjure the errors of the church of Rome. If not hard pressed, he will maintain a prudent and easy silence; if hard pressed, he will let fly a volley of fallacies—he will play off the argument drawn from the imputation of bad motives, and tell you of the profit expected by the party by whom the bill was framed, and petition procured, to form a ground for it. If that be not sufficient, he will transform himself in the first place into a witness giving evidence upon a committee; in the next place, after multiplying himself into the number of members necessary to hear and report upon that evidence, he will make a report accordingly.

He will report in that character, that when in any town a set of tradesmen have, on their petition, obtained a judicatory in which the recovery of a debt under 40s. or £5 is not attended with that obstruction of accumulated expense by which the relief which his judicatory professes to afford is always accompanied, it has been with no other effect than that of giving in the character of judges effect to claims which in the character of witnesses it was originally their design, and afterwards their practice, to give support to by perjury.

II. The second of these two devices may be called the self-trumpeter’s fallacy.

By this name it is not intended to designate those occasional impulses of vanity which lead a man to display or overrate his pretensions to superior intelligence. Against the self-love of the man whose altar to himself is raised on this ground, rival altars, from every one of which he is sure of discouragement, raise themselves all around.

But there are certain men in office, who in discharge of their functions arrogate to themselves a degree of probity which is to exclude all imputations and all inquiry; their assertions are to be deemed equivalent to proof; their virtues are guarantees for the faithful discharge of their duties; and the most implicit confidence is to be reposed in them on all occasions. If you expose any abuse, propose any reform, call for securities, inquiry, or measures to promote publicity, they set up a cry of surprise, amounting almost to indignation, as if their integrity were questioned, or their honour wounded. With all this, they dexterously mix up intimations that the most exalted patriotism, honour, and perhaps religion, are the only sources of all their actions.

Such assertions must be classed among fallacies, because—1. They are irrelevant to the subject in discussion; 2. The degree in which the predominance of motives of the social or disinterested cast is commonly asserted or insinuated, is, by the very nature of man, rendered impossible; 3. The sort of testimony thus given affords no legitimate reason for regarding the assertion in question to be true, for it is no less completely in the power of the most profligate than in that of the most virtuous of mankind; nor is it in a less degree the interest of the profligate man to make such assertions. Be they ever so completely false, not any the least danger of punishment does he see himself exposed to, at the hands either of the law or of public opinion.

For ascribing to any one of these self-trumpeters the smallest possible particle of that virtue which they are so loud in the profession of, there is no more rational cause, than for looking upon this or that actor as a good man, because he acts well the part of Othello, or bad, because he acts well the part of Iago.

4. On the contrary, the interest he has in trying what may be done by these means, is more decided and exclusive than in the case of the man of real probity and social feeling. The virtuous man, being what he is, has that chance for being looked upon as such; whereas the self-trumpeter in question, having no such ground of reliance, beholds his only chance in the conjunct effect of his own effrontery, and the imbecility of his hearers.

These assertions of authority, therefore, by men in office, who would have us estimate their conduct by their character, and not their character by their conduct, must be classed among political fallacies. If there be any one maxim in politics more certain than another, it is, that no possible degree of virtue in the governor can render it expedient for the governed to dispense with good laws and good institutions.*

CHAPTER VI.

LAUDATORY PERSONALITIES—(ad amicitiam.)

Personalities of this class are the opposites, and in some respects the counterparts, of vituperative personalities, which will be treated of next in order, at the commencement of the ensuing Book.

Laudatory personalities are susceptible of the same number of modifications as will be shown to exist in the case of vituperative personalities: but in this case the argument is so much weaker than in the other, that the shades and modifications of it are seldom resorted to, and are therefore not worth a detailed exposition. The object of vituperative personalities is to effect the rejection of a measure, on account of the alleged bad character of those who promote it; and the argument advanced is—“The persons who propose or promote the measure, are bad; therefore the measure is bad, or ought to be rejected.” The object of laudatory personalities is to effect the rejection of a measure on account of the alleged good character of those who oppose it; and the argument advanced is—“The measure is rendered unnecessary by the virtues of those who are in power; their opposition is a sufficient authority for the rejection of the measure.”

The argument indeed is generally confined to persons of this description, and is little else than an extension of the self-trumpeter’s fallacy. In both of them, authority derived from the virtues or talents of the persons lauded, is brought forward as superseding the necessity of all investigation.

“The measure proposed implies a distrust of the members of his Majesty’s government; but so great is their integrity, so complete their disinterestedness, so uniformly do they prefer the public advantage to their own, that such a measure is altogether unnecessary:—their disapproval is sufficient to warrant an opposition: precautions can only be requisite where danger is apprehended; here, the high character of the individuals in question is a sufficient guarantee against any ground of alarm.”

The panegyric goes on increasing in proportion to the dignity of the functionary thus panegyrized.

Subordinates in office are the very models of assiduity, attention, and fidelity to their trust; ministers, the perfection of probity and intelligence: and as for the highest magistrate in the state, no adulation is equal to describe the extent of his various merits.

There can be no difficulty in exposing the fallacy of the argument attempted to be deduced from these panegyrics:—

1. They have the common character of being irrelevant to the question under discussion. The measure must have something extraordinary in it, if a right judgment cannot be founded on its merits, without first estimating the character of the members of the government.

2. If the goodness of the measure be sufficiently established by direct arguments, the reception given to it by those who oppose it will form a better criterion for judging of their character, than their character (as inferred from the places which they occupy) for judging of the goodness or badness of the measure.

3. If this argument be good in any one case, it is equally good in every other; and the effect of it, if admitted, would be to give to the persons occupying for the time being the situation in question, an absolute and universal negative upon every measure not agreeable to their inclinations.

4. In every public trust, the legislator should, for the purpose of prevention, suppose the trustee disposed to break the trust in every imaginable way in which it would be possible for him to reap, from the breach of it, any personal advantage. This is the principle on which public institutions ought to be formed; and when it is applied to all men indiscriminately, it is injurious to none. The practical inference is, to oppose to such possible (and what will always be probable) breaches of trust every bar that can be opposed, consistently with the power requisite for the efficient and due discharge of the trust. Indeed, these arguments, drawn from the supposed virtues of men in power, are opposed to the first principles on which all laws proceed.

5. Such allegations of individual virtue are never supported by specific proof—are scarce ever susceptible of specific disproof; and specific disproof, if offered, could not be admitted, viz. in either House of Parliament. If attempted elsewhere, the punishment would fall, not on the unworthy trustee, but on him by whom the unworthiness had been proved.

[* ]“An unquestionable maxim,” it is said, is this:—“Reason, and not authority, should determine the judgment:” Said? and by whom? even by a bishop; and by what bishop? even Bishop Warburton: and this is not in one work only, but in two. The above words are from his Div. Legat. ii. 302; and in his Alliance, &c. is a passage to the same effect: here, then, we have authority against authority.

[* ]A considerable proportion of what is termed the common law of England is in this oral and unwritten state. The cases in which it has been clothed with words—that is, in which it has been framed and pronounced—are to be found in the various collections of reported decisions. These decisions, not having the sanction of a law passed by the legislature, are confirmed or overruled at pleasure by the existing judges; so that, except in matters of the most common and daily occurrence, they afford no rule of action at all.

[* ]No one will deny that preceding ages have produced men eminently distinguished by benevolence and genius; it is to them that we owe in succession all the advances which have hitherto been made in the career of human improvement: but as their talents could only be developed in proportion to the state of knowledge at the period in which they lived, and could only have been called into action with a view to then-existing circumstances, it is absurd to rely on their authority, at a period and under a state of things altogether different.

[† ]For the payment of Mr. Pitt’s creditors was voted £40,000 of the public money:—to Mr. Fox’s widow, £1500 a-year.

[‡ ]Vol. V. p. 278, et seq.

[† ]A “Burdett mob,” for example.

[* ]See Chap. II. Of Publicity.

[* ]13 & 14 Ch. II. c. 4.

[† ]Vol. I. 97, 9.

[* ]5 Ann, c. 8. art. 19, anno 1708.

[† ]“Abolishing the heritable jurisdictions in Scotland” are so many words that stand in the title of it. Anno 1747, 20 Geo. II. c. 43.

[‡ ]Art. 9.

[* ]For a specimen, see Essay on the Promulgation of Laws, Vol. I. p. 155, et seq.

[† ]See Vol. I. p. 155, et seq.; and Papers on Codification, and Letters to the United States, in Vol. IV.

[* ]1 W. & M. c. 6, anno 1688.

[† ]5 Ann, c. 8, art. 25, § 8.

[* ]The variety of the notions entertained at different periods, in different stages of society, respecting the duration of laws, presents a curious and not uninstructive picture of human weakness.

1. At one time we see, under the name of king, a single person, whose will makes law, or at any rate, without whose will no law is made; and when this lawgiver dies, his laws die with him.

Such was the state of things in Saxon times,—such even continued to be the state of things for several reigns after the Norman conquest.a

2. Next to this comes a period in which the duration of the law, during the lifetime of the monarch to whom it owed its birth, was unsettled and left to chance.b

3. In the third place comes the period in which the notions respecting the duration of the law concur with the dictates of reason and utility—not so much from reflection, as because no occasion of a nature to suggest and urge any attempt so absurd as that of tyrannizing over futurity, had as yet happened to present itself.

4. Lastly, upon the spur of an occasion of the sort in question, comes the attempt to give eternity to human laws.

Provisional and eventual perpetuity is an attribute which, in that stage of society at which laws have ceased to expire with the individual legislator, is understood to be inherent in all laws in which no expression is found to the contrary.

But if a particular length of time be marked out, during which, in the enactment of a law, it is declared that that law shall not be liable to suffer abrogation or alteration, the determination to tie up the hands of succeeding legislators is expressed in unequivocal terms.

Such, in respect of their constitutional code, was the pretension set up by the first assembly of legislators brought together by the French revolution.

A position not less absurd in principle, but, by the limitation in point of time, not pregnant with anything like equal mischief, was before that time acted upon, and still continues to be acted upon, in English legislation.

In various statutes, a clause may be found by which the statute is declared capable of being altered or repealed in the course of the same session. In this clause is contained, in the way of necessary implication, that a statute in which no such clause is inserted is not capable of being repealed or altered during the session,—no, not by the very hands by which it was made.

[* ]Madame de Stael says, that in a conversation which she had at Petersburgh with the Emperor of Russia, he expressed his desire to better the condition of the peasantry, who are still in a state of absolute slavery; upon which the female sentimentalist exclaimed, “Sire, your character is a constitution for your country, and your conscience is its guarantee.” His reply was, “Quand cela serait, je ne serais jamais qu’un accident heureux.”—Dix années d'Exil, p. 313.

[* ]The variety of the notions entertained at different periods, in different stages of society, respecting the duration of laws, presents a curious and not uninstructive picture of human weakness.

1. At one time we see, under the name of king, a single person, whose will makes law, or at any rate, without whose will no law is made; and when this lawgiver dies, his laws die with him.

Such was the state of things in Saxon times,—such even continued to be the state of things for several reigns after the Norman conquest.a

2. Next to this comes a period in which the duration of the law, during the lifetime of the monarch to whom it owed its birth, was unsettled and left to chance.b

3. In the third place comes the period in which the notions respecting the duration of the law concur with the dictates of reason and utility—not so much from reflection, as because no occasion of a nature to suggest and urge any attempt so absurd as that of tyrannizing over futurity, had as yet happened to present itself.

4. Lastly, upon the spur of an occasion of the sort in question, comes the attempt to give eternity to human laws.

Provisional and eventual perpetuity is an attribute which, in that stage of society at which laws have ceased to expire with the individual legislator, is understood to be inherent in all laws in which no expression is found to the contrary.

But if a particular length of time be marked out, during which, in the enactment of a law, it is declared that that law shall not be liable to suffer abrogation or alteration, the determination to tie up the hands of succeeding legislators is expressed in unequivocal terms.

Such, in respect of their constitutional code, was the pretension set up by the first assembly of legislators brought together by the French revolution.

A position not less absurd in principle, but, by the limitation in point of time, not pregnant with anything like equal mischief, was before that time acted upon, and still continues to be acted upon, in English legislation.

In various statutes, a clause may be found by which the statute is declared capable of being altered or repealed in the course of the same session. In this clause is contained, in the way of necessary implication, that a statute in which no such clause is inserted is not capable of being repealed or altered during the session,—no, not by the very hands by which it was made.

[a]To Ric. I. inclusive.

[b]John, Ed. I. and II.