Front Page Titles (by Subject) CHAPTER III.: Fallacy of Irrevocable Laws. - The Works of Jeremy Bentham, vol. 2
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CHAPTER III.: Fallacy of Irrevocable Laws. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 2 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 2.
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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.
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.*
[* ]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.
[* ]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.
[a]To Ric. I. inclusive.
[b]John, Ed. I. and II.