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CHAPTER XI.: USES OF THE PRECEDING EXPOSURE. - 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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USES OF THE PRECEDING EXPOSURE.
But of these disquisitions concerning the state and character of the mind of those by whom these instruments of deception are employed, what, it may be asked, is the practical use?
The use is, the opposing such check as it may be in the power of reason to apply, to the practice of employing these poisoned weapons. In proportion as the virtue of sincerity is an object of love and veneration, the opposite vice is held in abhorrence:—the more generally and intimately the public in general are satisfied of the insincerity of him by whom the arguments in question are employed, in that same proportion will be the efficiency of the motives by the force of which a man is withheld from employing these arguments.
Suppose the deceptious and pernicious tendency of these arguments, and thence the improbity of him who employs them, in such sort held up to view as to find the minds of men sufficiently sensible of it—and suppose, that in the public mind in general, virtue in the form of sincerity is an object of respect, vice in the opposite form an object of aversion and contempt,—the practice of this species of improbity will become as rare, as is the practice of any other species of improbity to which the restrictive action of the same moral power is in the habit of applying itself with the same force.
If, on this occasion, the object were to prove the deceptious nature and inconclusiveness of these arguments, the exposure thus given of the mental character of the persons by whom they are employed, would not have any just title to be received into the body of evidence applicable to this purpose. Be the improbity of the persons by whom these arguments are employed ever so glaring, the arguments themselves are exactly what they are—neither better nor worse. To employ as a medium of proof for demonstrating the impropriety of the arguments, the improbity of him by whom they are uttered, is an expedient which stands itself upon the list of fallacies, and which in the foregoing pages has been brought to view.
But on the present occasion, and for the present purpose, the impropriety as well as the mischievousness of these arguments is supposed to be sufficiently established on other, and those unexceptionable, grounds: the object in view now is, to determine by what means an object so desirable as the general disuse of these poisonous weapons may in the completest and most effectual degree be attained.
Now, the mere utterance of these base arguments is not the only—it is not so much as the principal mischief in the case. It is the reception of them in the character of conclusive or influential arguments that constitutes the principal and only ultimate mischief. To the object of making men ashamed to utter them, must therefore be added, the ulterior object of making men ashamed to receive them—ashamed as often as they are observed to see or hear them—ashamed to be known to turn towards them any other aspect than that of aversion and contempt.
But if the practice of insincerity be a practice which a man ought to be ashamed of, so is the practice of giving encouragement to—of forbearing to oppose discouragement to that vice: and to this same desirable and useful end does that man most contribute, by whom the immorality of the practice is held up to view in the strongest and clearest colours.
Nor, upon reflection, will the result be found so hopeless as at first sight might be supposed. In the most numerous assembly that ever sat in either House, perhaps, not a single individual could be found, by whom, in the company of a chaste and well-bred female, an obscene word was ever uttered. And if the frown of indignation were as sure to be drawn down upon the offender by an offence against this branch of the law of probity as by an offence against the law of delicacy, transgression would not be less effectually banished from both those great public theatres, than it is already from the domestic circle.
If, of the fallacies in question, the tendency be really pernicious,—whosoever he be, who by lawful and unexceptionable means of any kind shall have contributed to this effect, will thereby have rendered to his country and to mankind good service.
But whosoever he be, who to the intellectual power adds the moderate portion of pecuniary power necessary, in his power it lies completely to render this good service.
In any printed report of the debates of the assembly in question, supposing any such instruments of deception discoverable, in each instance in which any such instrument is discoverable, let him, at the bottom of the page, by the help of the usual marks of reference, give intimation of it: describing it, for instance, if it be of the number of those which are included in the present list, by the name by which it stands designated in this list, or by any more apt and clearly designative denomination that can be found for it.
The want of sufficient time for adequate discussion, when carried on orally in a numerous assembly, has in no inconsiderable extent been held out by experience in the character of a real and serious evil. To this evil, the table of fallacies furnishes, to an indefinite extent, a powerful remedy.
There are few men of the class of those who read, to whose memory Goldsmith’s delightful novel, the Vicar of Wakefield, is not more or less present. Among the disasters into which the good Vicar is betrayed by his simplicity, is the loss inflicted on him by the craft of Ephraim Jenkins. For insinuating himself into the good opinion and confidence of men of more learning than caution, the instrument he had formed to himself consisted apparently of an extempore sample of recondite learning, in which, in the character of the subject, the cosmogony, and in the character of one of the historians, Sanchoniathon, were the principal figures. On one or two of the occasions on which it was put to use, the success corresponded with the design, and Ephraim remained undetected and triumphant. But at last, as the devil by his cloven foot, so was Ephraim, though in a fresh disguise, betrayed by the cosmogony and Sanchoniathon, to some persons to whose lot it had fallen to receive the same proof of recondite learning, word for word. Immediately the chamber rings, with—“Your servant, Mr. Ephraim!”
In the course of time, when these imperfect sketches shall have received perfection and polish from some more skilful hand, so shall it be done unto him (nor is there need of inspiration for the prophecy)—so shall it be done unto him, who in the tabernacle of St. Stephen’s, or in any other mansion, higher or lower, of similar design and use, shall be so far off his guard, as through craft or simplicity to let drop any of these irrelevant, and at one time deceptious arguments: and instead of, Order! Order! a voice shall be heard, followed, if need be, by voices in scores, crying aloud, “Stale! Stale! Fallacy of authority! Fallacy of distrust!” &c. &c.
The faculty which detection has of divesting deception of her power, is attested by the poet:—
“Quære peregrinum, vicinia rauca reclamat.”
The period of time at which, in the instance of the instruments of deception here in question, this change shall have been acknowledged to have been completely effected, will form an epoch in the history of civilization.
The following papers are now first published in English, from Mr. Bentham’s MSS.; the substance of them has previously been published in French by Dumont.
AN EXAMINATION OF THE DECLARATION OF THE RIGHTS OF THE MAN AND THE CITIZEN DECREED BY THE CONSTITUENT ASSEMBLY IN FRANCE.
“The Representatives of the French people, constituted in National Assembly, considering that ignorance, forgetfulness, or contempt of the Rights of Man, are the only causes of public calamities, and of the corruption of governments, have resolved to set forth in a solemn declaration, the natural, unalienable, and sacred rights of man, in order that this declaration, constantly presented to all the members of the body social, may recall to mind, without ceasing, their rights and their duties; to the end, that the acts of the legislative power, and those of the executive power, being capable at every instant of comparison with the end of every political institution, they may be more respected, and also that the demands of the citizens hereafter, founded upon simple and incontestable principles, may always tend to the maintenance of the constitution and to the happiness of all.”
“In consequence, the National Assembly acknowledges and declares, in the presence and under the auspices of the Supreme Being, the following Rights of the Man and the Citizen.”—
From this preamble we may collect the following positions:—
1. That the declaration in question ought to include a declaration of all the powers which it is designed should thereafter subsist in the State; the limits of each power precisely laid down, and every one completely distinguished from the other.
2. That the articles by which this is to be done, ought not to be loose and scattered, but closely connected into a whole, and the connexion all along made visible.
3. That the declaration of the rights of man, in a state preceding that of political society, ought to form a part of the composition in question, and constitute the first part of it.
4. That in point of fact, a clear idea of all these stands already imprinted in the minds of every man.
5. That, therefore, the object of such a draught is not, in any part of such a draught, to teach the people anything new.
6. But that the object of such a declaration is to declare the accession of the Assembly, as such, to the principles as understood and embraced, as well by themselves in their individual capacity, as by all other individuals in the State.
7. That the use of this solemn adoption and recognition is, that the principles recognised may serve as a standard by which the propriety of the several particular laws that are afterwards to be enacted in consequence, may be tried.
8. That by the conformity of these laws to this standard, the fidelity of the legislators to their trust is also to be tried.
9. That accordingly, if any law should hereafter be enacted, between which, and any of those fundamental articles, any want of conformity in any point can be pointed out, such want of conformity will be a conclusive proof of two things: 1. Of the impropriety of such law; 2. Of error or criminality on the part of the authors and adopters of that law.
It concerns me to see so respectable an Assembly hold out expectations, which, according to my conception, cannot in the nature of things be fulfilled.
An enterprise of this sort, instead of preceding the formation of a complete body of laws, supposes such a work to be already existing in every particular except that of its obligatory force.
No laws are ever to receive the sanction of the Assembly that shall be contrary in any point to these principles. What does this suppose? It supposes the several articles of detail that require to be enacted, to have been drawn up, to have been passed in review, to have been confronted with these fundamental articles, and to have been found in no respect repugnant to them. In a word, to be sufficiently assured that the several laws of detail will bear this trying comparison, one thing is necessary: the comparison must have been made.
To know the several laws which the exigencies of mankind call for, a view of all these several exigencies must be obtained. But to obtain this view, there is but one possible means, which is, to take a view of the laws that have already been framed, and of the exigencies which have given birth to them.
To frame a composition which shall in any tolerable degree answer this requisition, two endowments, it is evident, are absolutely necessary:—an acquaintance with the law as it is, and the perspicuity and genius of the metaphysician: and these endowments must unite in the same person.
I can conceive but four purposes which a discourse, of the kind proposed under the name of a Declaration of Rights, can be intended to answer:—the setting bounds to the authority of the crown;—the setting bounds to the authority of the supreme legislative power, that of the National Assembly;—the serving as a general guide or set of instructions to the National Assembly itself, in the task of executing their function in detail, by the establishment of particular laws;—and the affording a satisfaction to the people.
These four purposes seem, if I apprehend right, to be all of them avowed by the same or different advocates for this measure.
Of the fourth and last of these purposes I shall say nothing: it is a question merely local—dependent upon the humour of the spot and of the day, of which no one at a distance can be a judge. Of the fitness of the end, there can be but one opinion: the only question is about the fitness of the means.
In the three other points of view, the expediency of the measure is more than I can perceive.
The description of the persons, of whose rights it is to contain the declaration, is remarkable. Who are they? The French nation? No; not they only, but all citizens, and all men. By citizens, it seems we are to understand men engaged in political society: by men, persons not yet engaged in political society—persons as yet in a state of nature.
The word men, as opposed to citizens, I had rather not have seen. In this sense, a declaration of the rights of men is a declaration of the rights which human creatures, it is supposed, would possess, were they in a state in which the French nation certainly are not, nor perhaps any other; certainly no other into whose hands this declaration could ever come.
This instrument is the more worthy of attention, especially of the attention of a foreigner, inasmuch as the rights which it is to declare are the rights which it is supposed belong to the members of every nation in the globe. As a member of a nation which with relation to the French comes under the name of a foreign one, I feel the stronger call to examine this declaration, inasmuch as in this instrument I am invited to read a list of rights which belong as much to me as to the people for whose more particular use it has been framed.
The word men, I observe to be all along coupled in the language of the Assembly itself, with the word citizen. I lay it, therefore, out of the question, and consider the declaration in the same light in which it is viewed by M. Turgot, as that of a declaration of the rights of all men in a state of citizenship or political society.
I proceed, then, to consider it in the three points of view above announced:—
1. Can it be of use for the purpose of setting bounds to the power of the crown? No; for that is to be the particular object of the Constitutional Code itself, from which this preliminary part is detached in advance.
2. Can it be of use for the purpose of setting bounds to the power of the several legislative bodies established or to be established? I answer, No.
(1.) Not of any subordinate ones: for of their authority, the natural and necessary limit is that of the supreme legislature, the National Assembly.
(2.) Not of the National Assembly itself:—Why? 1. Such limitation is unnecessary. It is proposed, and very wisely and honestly, to call in the body of the people, and give it as much power and influence as in its nature it is capable of: by enabling it to declare its sentiments whenever it thinks proper, whether immediately, or through the channel of the subordinate assemblies. Is a law enacted or proposed in the National Assembly, which happens not to be agreeable to the body of the people? It will be equally censured by them, whether it be conceived, or not, to bear marks of a repugnancy to this declaration of rights. Is a law disagreeable to them? They will hardly think themselves precluded from expressing their disapprobation, by the circumstance of its not being to be convicted of repugnancy to that instrument; and though it should be repugnant to that instrument, they will see little need to resort to that instrument for the ground of their repugnancy; they will find a much nearer ground in some particular real or imaginary inconvenience.
In short, when you have made such provision, that the supreme legislature can never carry any point against the general and persevering opinion of the people, what would you have more? What use in their attempting to bind themselves by a set of phrases of their own contrivance? The people’s pleasure: that is the only check to which no other can add anything, and which no other can supersede.
In regard to the rights thus declared, mention will either be made of the exceptions and modifications that may be made to them by the laws themselves, or there will not. In the former case, the observance of the declaration will be impracticable; nor can the law in its details stir a step without flying in the face of it. In the other case, it fails thereby altogether of its only object, the setting limits to the exercise of the legislative power. Suppose a declaration to this effect:—no man’s liberty shall be abridged in any point. This, it is evident, would be an useless extravagance, which must be contradicted by every law that came to be made. Suppose it to say—no man’s liberty shall be abridged, but in such points as it shall be abridged in, by the law. This, we see, is saying nothing: it leaves the law just as free and unfettered as it found it.
Between these two rocks lies the only choice which an instrument destined to this purpose can have. Is an instrument of this sort produced? We shall see it striking against one or other of them in every line. The first is what the framers will most guard against, in proportion to their reach of thought, and to their knowledge in this line: when they hit against the other, it will be by accident and unawares.
Lastly, it cannot with any good effect answer the only remaining intention, viz. that of a check to restrain as well as to guide the legislature itself, in the penning of the laws of detail that are to follow.
The mistake has its source in the current logic, and in the want of attention to the distinction between what is first in the order of demonstration, and what is first in the order of invention. Principles, it is said, ought to precede consequences; and the first being established, the others will follow of course. What are the principles here meant? General propositions, and those of the widest extent. What by consequences? Particular propositions, included under those general ones.
That this order is favourable to demonstration, if by demonstration be meant personal debate and argumentation, is true enough. Why? Because, if you can once get a man to admit the general proposition, he cannot, without incurring the reproach of inconsistency, reject a particular proposition that is included in it.
But, that this order is not the order of conception, of investigation, of invention, is equally undeniable. In this order, particular propositions always precede general ones. The assent to the latter is preceded by and grounded on the assent to the former.
If we prove the consequences from the principle, it is only from the consequences that we learn the principle.
Apply this to laws. The first business, according to the plan I am combating, is to find and declare the principles: the laws of a fundamental nature: that done, it is by their means that we shall be enabled to find the proper laws of detail. I say, no: it is only in proportion as we have formed and compared with one another the laws of detail, that our fundamental laws will be exact and fit for service. Is a general proposition true? It is because all the particular propositions that are included under it are true. How, then, are we to satisfy ourselves of the truth of the general one? By having under our eye all the included particular ones. What, then, is the order of investigation by which true general propositions are formed? We take a number of less extensive—of particular propositions; find some points in which they agree, and from the observation of these points form a more extensive one, a general one, in which they are all included. In this way, we proceed upon sure grounds, and understand ourselves as we go: in the opposite way, we proceed at random, and danger attends every step.
No law is good which does not add more to the general mass of felicity than it takes from it. No law ought to be made that does not add more to the general mass of felicity than it takes from it. No law can be made that does not take something from liberty; those excepted which take away, in the whole or in part those laws which take from liberty. Propositions to the first effect I see are true without any exception: propositions to the latter effect I see are not true till after the particular propositions intimated by the exceptions are taken out of it. These propositions I have attained a full satisfaction of the truth of. How? By the habit I have been in for a course of years, of taking any law at pleasure, and observing that the particular proposition relative to that law was always conformable to the fact announced by the general one.
So in the other example. I discerned in the first instance, in a faint way, that two classes would serve to comprehend all laws: laws which take from liberty in their immediate operation, and laws which in the same way destroy, in part or in the whole, the operation of the former. The perception was at first obscure, owing to the difficulty of ascertaining what constituted in every case a law, and of tracing out its operation. By repeated trials, I came at last to be able to show of any law which offered itself, that it came under one or other of those classes.
What follows? That the proper order is—first to digest the laws of detail, and when they are settled and found to be fit for use, then, and not till then, to select and frame in terminis, by abstraction, such propositions as may be capable of being given without self-contradiction as fundamental laws.
What is the source of this premature anxiety to establish fundamental laws? It is the old conceit of being wiser than all posterity—wiser than those who will have had more experience,—the old desire of ruling over posterity—the old recipe for enabling the dead to chain down the living. In the case of a specific law, the absurdity of such a notion is pretty well recognised, yet there the absurdity is much less than here. Of a particular law, the nature may be fully comprehended—the consequences foreseen: of a general law, this is the less likely to be the case, the greater the degree in which it possesses the quality of a general one. By a law of which you are fully master, and see clearly to the extent of, you will not attempt to bind succeeding legislators: the law you pitch upon in preference for this purpose, is one which you are unable to see to the end of.
Ought no such general propositions, then, to be ever framed till after the establishment of a complete code? I do not mean to assert this; on the contrary, in morals as in physics, nothing is to be done without them. The more they are framed and tried, the better: only, when framed, they ought to be well tried before they are ushered abroad into the world in the character of laws. In that character they ought not to be exhibited till after they have been confronted with all the particular laws to which the force of them is to apply. But if the intention be to chain down the legislator, these will be all the laws without exception which are looked upon as proper to be inserted in the code. For the interdiction meant to be put upon him is unlimited: he is never to establish any law which shall disagree with the pattern cut out for him—which shall ever trench upon such and such rights.
Such indigested and premature establishments betoken two things:—the weakness of the understanding, and the violence of the passions: the weakness of the understanding, in not seeing the insuperable incongruities which have been above stated—the violence of the passions, which betake themselves to such weapons for subduing opposition at any rate, and giving to the will of every man who embraces the proposition imported by the article in question, a weight beyond what is its just and intrinsic due. In vain would man seek to cover his weakness by positive and assuming language: the expression of one opinion, the expression of one will, is the utmost that any proposition can amount to. Ought and ought not, can and can not, shall and shall not, all put together, can never amount to anything more. “No law ought to be made, which will lessen upon the whole the mass of general felicity.” When I, a legislator or private citizen, say this, what is the simple matter of fact that is expressed? This, and this only, that a sentiment of dissatisfaction is excited in my breast by any such law. So again—“No law shall be made, which will lessen upon the whole the mass of general felicity.” What does this signify? That the sentiment of dissatisfaction in me is so strong as to have given birth to a determined will that no such law should ever pass, and that determination so strong as to have produced a resolution on my part to oppose myself, as far as depends on me, to the passing of it, should it ever be attempted—a determination which is the more likely to meet with success, in proportion to the influence, which in the character of legislator or any other, my mind happens to possess over the minds of others.
“No law can be made which will do as above. What does this signify? The same will as before, only wrapped up in an absurd and insidious disguise. My will is here so strong, that, as a means of seeing it crowned with success, I use my influence with the persons concerned to persuade them to consider a law which, at the same time, I suppose to be made, in the same point of view as if it were not made; and consequently, to pay no more obedience to it than if it were the command of an unauthorized individual. To compass this design, I make the absurd choice of a term expressive in its original and proper import of a physical impossibility, in order to represent as impossible the very event of the occurrence of which I am apprehensive:—occupied with the contrary persuasion, I raise my voice to the people—tell them the thing is impossible; and they are to have the goodness to believe me, and act in consequence.
A law to the effect in question is a violation of the natural and indefeasible rights of man. What does this signify? That my resolution of using my utmost influence in opposition to such a law is wound up to such a pitch, that should any law be ever enacted, which in my eyes appears to come up to that description, my determination is, to behave to the persons concerned in its enactment, as any man would behave towards those who had been guilty of a notorious and violent infraction of his rights. If necessary, I would corporally oppose them—if necessary, in short, I would endeavour to kill them; just as, to save my own life, I would endeavour to kill any one who was endeavouring to kill me.
These several contrivances for giving to an increase in vehemence, the effect of an increase in strength of argument, may be styled bawling upon paper: it proceeds from the same temper and the same sort of distress as produces bawling with the voice.
That they should be such efficacious recipes is much to be regretted; that they will always be but too much so, is much to be apprehended; but that they will be less and less so, as intelligence spreads and reason matures, is devoutly to be wished, and not unreasonably to be hoped for.
As passions are contagious, and the bulk of men are more guided by the opinions and pretended opinions of others than by their own, a large share of confidence, with a little share of argument, will he apt to go farther than all the argument in the world without confidence: and hence it is, that modes of expression like these, which owe the influence they unhappily possess to the confidence they display, have met with such general reception. That they should fall into discredit, is, if the reasons above given have any force, devoutly to be wished: and for the accomplishing this good end, there cannot be any method so effectual—or rather, there cannot be any other method, than that of unmasking them in the manner here attempted.
The phrases can and can not, are employed in this way with greater and more pernicious effect, inasmuch as, over and above physical and moral impossibility, they are made use of with much less impropriety and violence to denote legal impossibility. In the language of the law, speaking in the character of the law, they are used in this way without ambiguity or inconvenience. “Such a magistrate cannot do so and so,” that is, he has no power to do so and so. If he issue a command to such an effect, it is no more to be obeyed than if it issued from any private person. But when the same expression is applied to the very power which is acknowledged to be supreme, and not limited by any specific institution, clouds of ambiguity and confusion roll on in a torrent almost impossible to be withstood. Shuffled backwards and forwards amidst these three species of impossibility—physical, legal, and moral—the mind can find no resting-place: it loses its footing altogether, and becomes an easy prey to the violence which wields these arms.
The expedient is the more powerful, inasmuch as, where it does not succeed so far as to gain a man and carry him over to that side, it will perplex him and prevent his finding his way to the other: it will leave him neutral, though it should fail of making him a friend.
It is the better calculated to produce this effect, inasmuch as nothing can tend more powerfully to draw a man altogether out of the track of reason and out of sight of utility, the only just standard for trying all sorts of moral questions. Of a positive assertion thus irrational, the natural effect, where it fails of producing irrational acquiescence, is to produce equally irrational denial, by which no light is thrown upon the subject, nor any opening pointed out through which light may come. I say, the law cannot do so and so: you say, it can. When we have said thus much on each side, it is to no purpose to say more; there we are completely at a stand: argument such as this can go no further on either side,—or neither yields,—or passion triumphs alone—the stronger sweeping the weaker away.
Change the language, and instead of cannot, put ought not,—the case is widely different. The moderate expression of opinion and will intimated by this phrase, leads naturally to the inquiry after a reason:—and this reason, if there be any at bottom that deserves the name, is always a proposition of fact relative to the question of utility. Such a law ought not to be established, because it is not consistent with the general welfare—its tendency is not to add to the general stock of happiness. I say, it ought not to be established; that is, I do not approve of its being established: the emotion excited in my mind by the idea of its establishment, is not that of satisfaction, but the contrary. How happens this? Because the production of inconvenience, more than equivalent to any advantage that will ensue, presents itself to my conception in the character of a probable event. Now the question is put, as every political and moral question ought to be, upon the issue of fact; and manking are directed into the only true track of investigation which can afford instruction or hope of rational argument, the track of experiment and observation. Agreement, to be sure, is not even then made certain:—for certainty belongs not to human affairs. But the track, which of all others bids fairest for leading to agreement, is pointed out: a clue for bringing back the travellers, in case of doubt or difficulty, is presented; and, at any rate, they are not struck motionless at the first step.
Nothing would be more unjust or more foreign to my design, than taking occasion, from anything that has been said, to throw particular blame upon particular persons: reproach which strikes everybody, hurts nobody; and common error, where it does not, according to the maxim of English law, produce common right, is productive at least of common exculpation.
A CRITICAL EXAMINATION OF THE DECLARATION OF RIGHTS.
The Declaration of Rights—I mean the paper published under that name by the French National Assembly in 1791—assumes for its subject-matter a field of disquisition as unbounded in point of extent as it is important in its nature. But the more ample the extent given to any proposition or string of propositions, the more difficult it is to keep the import of it confined without deviation, within the bounds of truth and reason. If in the smallest corners of the field it ranges over, it fail of coinciding with the line of rigid rectitude, no sooner is the aberration pointed out, than (inasmuch as there is no medium between truth and falsehood) its pretensions to the appellation of a truism are gone, and whoever looks upon it must recognise it to be false and erroneous,—and if, as here, political conduct be the theme, so far as the error extends and fails of being detected, pernicious.
In a work of such extreme importance with a view to practice, and which throughout keeps practice so closely and immediately and professedly in view, a single error may be attended with the most fatal consequences. The more extensive the propositions, the more consummate will be the knowledge, the more exquisite the skill, indispensably requisite to confine them in all points within the pale of truth. The most consummate ability in the whole nation could not have been too much for the task—one may venture to say, it would not have been equal to it. But that, in the sanctioning of each proposition, the most consummate ability should happen to be vested in the heads of the sorry majority in whose hands the plenitude of power happened on that same occasion to be vested, is an event against which the chances are almost as infinity to one.
Here, then, is a radical and all-pervading error—the attempting to give to a work on such a subject the sanction of government; especially of such a government—a government composed of members so numerous, so unequal in talent, as well as discordant in inclinations and affections. Had it been the work of a single hand, and that a private one, and in that character given to the world, every good effect would have been produced by it that could be produced by it when published as the work of government, without any of the bad effects which in case of the smallest error must result from it when given as the work of government.
The revolution, which threw the government into the hands of the penners and adopters of this declaration, having been the effect of insurrection, the grand object evidently is to justify the cause. But by justifying it, they invite it: in justifying past insurrection, they plant and cultivate a propensity to perpetual insurrection in time future; they sow the seeds of anarchy broad-cast: in justifying the demolition of existing authorities, they undermine all future ones, their own consequently in the number. Shallow and reckless vanity!—They imitate in their conduct the author of that fabled law, according to which the assassination of the prince upon the throne gave to the assassin a title to succeed him. “People, behold your rights! If a single article of them be violated, insurrection is not your right only, but the most sacred of your duties.” Such is the constant language, for such is the professed object of this source and model of all laws—this self-consecrated oracle of all nations.
The more abstract—that is, the more extensive the proposition is, the more liable is it to involve a fallacy. Of fallacies, one of the most natural modifications is that which is called begging the question—the abuse of making the abstract proposition resorted to for proof, a lever for introducing, in the company of other propositions that are nothing to the purpose, the very proposition which is admitted to stand in need of proof.
Is the provision in question fit in point of expediency to be passed into a law for the government of the French nation? That, mutatis mutandis, would have been the question put in England: that was the proper question to have been put in relation to each provision it was proposed should enter into the composition of the body of French laws.
Instead of that, as often as the utility of a provision appeared (by reason of the wideness of its extent, for instance) of a doubtful nature, the way taken to clear the doubt was to assert it to be a provision fit to be made law for all men—for all Frenchmen—and for all Englishmen, for example, into the bargain. This medium of proof was the more alluring, inasmuch as to the advantage of removing opposition, was added the pleasure, the sort of titillation so exquisite to the nerve of vanity in a French heart—the satisfaction, to use a homely, but not the less apposite proverb, of teaching grandmothers to suck eggs. Hark! ye citizens of the other side of the water! Can you tell us what rights you have belonging to you? No, that you can’t. It’s we that understand rights: not our own only, but yours into the bargain; while you, poor simple souls! know nothing about the matter.
Hasty generalization, the great stumblingblock of intellectual vanity!—hasty generalization, the rock that even genius itself is so apt to split upon!—hasty generalization, the bane of prudence and of science!
In the British Houses of Parliament, more especially in the most efficient house for business, there prevails a well-known jealousy of, and repugnance to, the voting of abstract propositions. This jealousy is not less general than reasonable. A jealousy of abstract propositions is an aversion to whatever is beside the purpose—an aversion to impertinence.
The great enemies of public peace are the selfish and dissocial passions:—necessary as they are—the one to the very existence of each individual, the other to his security. On the part of these affections, a deficiency in point of strength is never to be apprehended: all that is to be apprehended in respect of them, is to be apprehended on the side of their excess. Society is held together only by the sacrifices that men can be induced to make of the gratifications they demand: to obtain these sacrifices is the great difficulty, the great task of government. What has been the object, the perpetual and palpable object, of this declaration of pretended rights? To add as much force as possible to these passions, already but too strong,—to burst the cords that hold them in,—to say to the selfish passions, there—everywhere—is your prey!—to the angry passions, there—everywhere—is your enemy.
Such is the morality of this celebrated manifesto, rendered famous by the same qualities that gave celebrity to the incendiary of the Ephesian temple.
The logic of it is of a piece with its morality:—a perpetual vein of nonsense, flowing from a perpetual abuse of words,—words having a variety of meanings, where words with single meanings were equally at hand—the same words used in a variety of meanings in the same page,—words used in meanings not their own, where proper words were equally at hand,—words and propositions of the most unbounded signification, turned loose without any of those exceptions or modifications which are so necessary on every occasion to reduce their import within the compass, not only of right reason, but even of the design in hand, of whatever nature it may be;—the same inaccuracy, the same inattention in the penning of this cluster of truths on which the fate of nations was to hang, as if it had been an oriental tale, or an allegory for a magazine:—stale epigrams, instead of necessary distinctions,—figurative expressions preferred to simple ones,—sentimental conceits, as trite as they are unmeaning, preferred to apt and precise expressions,—frippery ornament preferred to the majestic simplicity of good sound sense,—and the acts of the senate loaded and disfigured by the tinsel of the playhouse.
In a play or a novel, an improper word is but a word: and the impropriety, whether noticed or not, is attended with no consequences. In a body of laws—especially of laws given as constitutional and fundamental ones—an improper word may be a national calamity:—and civil war may be the consequence of it. Out of one foolish word may start a thousand daggers.
Imputations like these may appear general and declamatory—and rightly so, if they stood alone: but they will be justified even to satiety by the details that follow. Scarcely an article, which in rummaging it, will not be found a true Pandora’s box.
In running over the several articles, I shall on the occasion of each article point out, in the first place, the errors it contains in theory; and then, in the second place, the mischiefs it is pregnant with in practice.
The criticism is verbal:—true, but what else can it be? Words—words without a meaning, or with a meaning too flatly false to be maintained by anybody, are the stuff it is made of. Look to the letter, you find nonsense—look beyond the letter, you find nothing.
Men [all men] are born and remain free, and equal in respect of rights. Social distinctions cannot be founded, but upon common utility.
In this article are contained, grammatically speaking, two distinct sentences. The first is full of error, the other of ambiguity.
In the first are contained four distinguishable propositions, all of them false—all of them notoriously and undeniably false:—
1. That all men are born free.
2. That all men remain free.
3. That all men are born equal in rights.
4. That all men remain (i. e. remain for ever, for the proposition is indefinite and unlimited) equal in rights.
All men are born free? All men remain free? No, not a single man: not a single man that ever was, or is, or will be. All men, on the contrary, are born in subjection, and the most absolute subjection—the subjection of a helpless child to the parents on whom he depends every moment for his existence. In this subjection every man is born—in this subjection he continues for years—for a great number of years—and the existence of the individual and of the species depends upon his so doing.
What is the state of things to which the supposed existence of these supposed rights is meant to bear reference?—a state of things prior to the existence of government, or a state of things subsequent to the existence of government? If to a state prior to the existence of government, what would the existence of such rights as these be to the purpose, even if it were true, in any country where there is such a thing as government? If to a state of things subsequent to the formation of government—it in a country where there is a government, in what single instance—in the instance of what single government, is it true? Setting aside the case of parent and child, let any man name that single government under which any such equality is recognised.
All men born free? Absurd and miserable nonsense! When the great complaint—a complaint made perhaps by the very same people at the same time, is—that so many men are born slaves. Oh! but when we acknowledge them to be born slaves, we refer to the laws in being; which laws being void, as being contrary to those laws of nature which are the efficient causes of those rights of man that we are declaring, the men in question are free in one sense, though slaves in another;—slaves, and free, at the same time:—free in respect of the laws of nature—slaves in respect of the pretended human laws, which, though called laws, are no laws at all, as being contrary to the laws of nature. For such is the difference—the great and perpetual difference, betwixt the good subject, the rational censor of the laws, and the anarchist—between the moderate man and the man of violence. The rational censor, acknowledging the existence of the law he disapproves, proposes the repeal of it: the anarchist, setting up his will and fancy for a law before which all mankind are called upon to bow down at the first word—the anarchist, trampling on truth and decency, denies the validity of the law in question,—denies the existence of it in the character of a law, and calls upon all mankind to rise up in a mass, and resist the execution of it.
Whatever is, is,—was the maxim of Des-Cartes, who looked upon it as so sure, as well as so instructive a truth, that everything else which goes by the name of truth might be deduced from it. The philosophical vortex-maker—who, however mistaken in his philosophy and his logic, was harmless enough at least—the manufacturer of identical propositions and celestial vortices—little thought how soon a part of his own countrymen, fraught with pretensions as empty as his own, and as mischievous as his were innocent, would contest with him even this his favourite and fundamental maxim, by which everything else was to be brought to light. Whatever is, is not—is the maxim of the anarchist, as often as anything comes across him in the shape of a law which he happens not to like.
“Cruel is the judge,” says Lord Bacon, “who, in order to enable himself to torture men, applies torture to the law.” Still more cruel is the anarchist, who, for the purpose of effecting the subversion of the laws themselves, as well as the massacre of the legislators, tortures not only the words of the law, but the very vitals of the language.
All men are born equal in rights. The rights of the heir of the most indigent family equal to the rights of the heir of the most wealthy? In what case is this true? I say nothing of hereditary dignities and powers. Inequalities such as these being proscribed under and by the French government in France, are consequently proscribed by that government under every other government, and consequently have no existence anywhere. For the total subjection of every other government to French government, is a fundamental principle in the law of universal independence—the French law. Yet neither was this true at the time of issuing this Declaration of Rights, nor was it meant to be so afterwards. The 13th article, which we shall come to in its place, proceeds on the contrary supposition: for, considering its other attributes, inconsistency could not be wanting to the list. It can scarcely be more hostile to all other laws than it is at variance with itself.
All men (i. e. all human creatures of both sexes) remain equal in rights. All men, meaning doubtless all human creatures. The apprentice, then, is equal in rights to his master; he has as much liberty with relation to the master, as the master has with relation to him; he has as much right to command and to punish him; he is as much owner and master of the master’s house, as the master himself. The case is the same as between ward and guardian. So again as between wife and husband. The madman has as good a right to confine anybody else, as anybody else has to confine him. The idiot has as much right to govern everybody, as anybody can have to govern him. The physician and the nurse, when called in by the next friend of a sick man seized with a delirium, have no more right to prevent his throwing himself out of the window, than he has to throw them out of it. All this is plainly and incontestably included in this article of the Declaration of Rights: in the very words of it, and in the meaning—if it have any meaning. Was this the meaning of the authors of it?—or did they mean to admit this explanation as to some of the instances, and to explain the article away as to the rest? Not being idiots, nor lunatics, nor under a delirium, they would explain it away with regard to the madman, and the man under a delirium. Considering that a child may become an orphan as soon as it has seen the light, and that in that case, if not subject to government, it must perish, they would explain it away, I think, and contradict themselves, in the case of guardian and ward. In the case of master and apprentice, I would not take upon me to decide: it may have been their meaning to proscribe that relation altogether;—at least, this may have been the case, as soon as the repugnancy between that institution and this oracle was pointed out; for the professed object and destination of it is to be the standard of truth and falsehood, of right and wrong, in everything that relates to government. But to this standard, and to this article of it, the subjection of the apprentice to the master is flatly and diametrically repugnant. If it do not proscribe and exclude this inequality, it proscribes none: if it do not do this mischief, it does nothing.
So, again, in the case of husband and wife. Amongst the other abuses which the oracle was meant to put an end to, may, for aught I can pretend to say, have been the institution of marriage. For what is the subjection of a small and limited number of years, in comparison of the subjection of a whole life? Yet without subjection and inequality, no such institution can by any possibility take place; for of two contradictory wills, both cannot take effect at the same time.
The same doubts apply to the case of master and hired servant. Better a man should starve than hire himself;—better half the species starve, than hire itself out to service. For, where is the compatibility between liberty and servitude? How can liberty and servitude subsist in the same person? What good citizen is there, that would hesitate to die for liberty? And, as to those who are not good citizens, what matters it whether they live or starve? Besides that every man who lives under this constitution being equal in rights, equal in all sorts of rights, is equal in respect to rights of property. No man, therefore, can be in any danger of starving—no man can have so much as that motive, weak and inadequate as it is, for hiring himself out to service.
Sentence 2. Social distinctions cannot be founded but upon common utility.—This proposition has two or three meanings. According to one of them, the proposition is notoriously false: according to another, it is in contradiction to the four propositions that preceded it in the same sentence.
What is meant by social distinctions? what is meant by can? what is meant by founded?
What is meant by social distinctions?—Distinctions not respecting equality?—then these are nothing to the purpose. Distinctions in respect of equality?—then, consistently with the preceding propositions in this same article, they can have no existence: not existing, they cannot be founded upon anything. The distinctions above exemplified, are they in the number of the social distinctions here intended? Not one of them (as we have been seeing,) but has subjection—not one of them, but has inequality for its very essence.
What is meant by can—can not be founded but upon common utility? Is it meant to speak of what is established, or of what ought to be established? Does it mean that no social distinctions, but those which it approves as having the foundation in question, are established anywhere? or simply that none such ought to be established anywhere? or that, if the establishment or maintenance of such dispositions by the laws be attempted anywhere, such laws ought to be treated as void, and the attempt to execute them to be resisted? For such is the venom that lurks under such words as can and can not, when set up as a check upon the laws,—they contain all these three so perfectly distinct and widely different meanings. In the first, the proposition they are inserted into refers to practice, and makes appeal to observation—to the observation of other men, in regard to a matter of fact: in the second, it is an appeal to the approving faculty of others, in regard to the same matter of fact: in the third, it is no appeal to anything, or to anybody, but a violent attempt upon the liberty of speech and action on the part of others, by the terrors of anarchical despotism, rising up in opposition to the laws: it is an attempt to lift the dagger of the assassin against all individuals who presume to hold an opinion different from that of the orator or the writer, and against all governments which presume to support any such individuals in any such presumption. In the first of these imports, the proposition is perfectly harmless: but it is commonly so untrue, so glaringly untrue, so palpably untrue, even to drivelling, that it must be plain to everybody it can never have been the meaning that was intended.
In the second of these imports, the proposition may be true or not, as it may happen, and at any rate is equally innocent: but it is such as will not answer the purpose; for an opinion that leaves others at liberty to be of a contrary one, will never answer the purpose of the passions: and if this had been the meaning intended, not this ambiguous phraseology, but a clear and simple one, presenting this meaning and no other, would have been employed. The third, which may not improperly be termed the ruffian-like or threatening import, is the meaning intended to be presented to the weak and timid, while the two innocent ones, of which one may even be reasonable, are held up before it as a veil to blind the eyes of the discerning reader, and screen from him the mischief that lurks beneath.
Can and can not, when thus applied—can and can not, when used instead of ought and ought not—can and can not, when applied to the binding force and effect of laws—not of the acts of individuals, nor yet of the acts of subordinate authority, but of the acts of the supreme government itself, are the disguised cant of the assassin: after them there is nothing but do him, betwixt the preparation for murder and the attempt. They resemble that instrument which in outward appearance is but an ordinary staff, but which within that simple and innocent semblance conceals a dagger. These are the words that speak daggers—if daggers can be spoken: they speak daggers, and there remains nothing but to use them.
Look where I will, I see but too many laws, the alteration or abolition of which, would in my poor judgment be a public blessing. I can conceive some,—to put extreme and scarcely exampled cases,—to which I might be inclined to oppose resistance, with a prospect of support such as promised to be effectual. But to talk of what the law, the supreme legislature of the country, acknowledged as such, can not do!—to talk of a void law as you would of a void order or a void judgment!—The very act of bringing such words into conjunction is either the vilest of nonsense, or the worst of treasons:—treason, not against one branch of the sovereignty, but against the whole: treason, not against this or that government, but against all governments.
The end in view of every political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.
Sentence 1. The end in view of every political association, is the preservation of the natural and imprescriptible rights of man.
More confusion—more nonsense,—and the nonsense, as usual, dangerous nonsense. The words can scarcely be said to have a meaning: but if they have, or rather if they had a meaning, these would be the propositions either asserted or implied:—
1. That there are such things as rights anterior to the establishment of governments: for natural, as applied to rights, if it mean anything, is meant to stand in opposition to legal—to such rights as are acknowledged to owe their existence to government, and are consequently posterior in their date to the establishment of government.
2. That these rights can not be abrogated by government: for can not is implied in the form of the word imprescriptible, and the sense it wears when so applied, is the cut-throat sense above explained.
3. That the governments that exist derive their origin from formal associations, or what are now called conventions: associations entered into by a partnership contract, with all the members for partners,—entered into at a day prefixed, for a predetermined purpose, the formation of a new government where there was none before (for as to formal meetings holden under the controul of an existing government, they are evidently out of question here) in which it seems again to be implied in the way of inference, though a necessary and an unavoidable inference, that all governments (that is, self-called governments, knots of persons exercising the powers of government) that have had any other origin than an association of the above description, are illegal, that is, no governments at all; resistance to them, and subversion of them, lawful and commendable; and so on.
Such are the notions implied in this first part of the article. How stands the truth of things? That there are no such things as natural rights—no such things as rights anterior to the establishment of government—no such things as natural rights opposed to, in contradistinction to, legal: that the expression is merely figurative; that when used, in the moment you attempt to give it a literal meaning it leads to error, and to that sort of error that leads to mischief—to the extremity of mischief.
We know what it is for men to live without government—and living without government, to live without rights: we know what it is for men to live without government, for we see instances of such a way of life—we see it in many savage nations, or rather races of mankind; for instance, among the savages of New South Wales, whose way of living is so well known to us: no habit of obedience, and thence no government—no government, and thence no laws—no laws, and thence no such things as rights—no security—no property:—liberty, as against regular controul, the controul of laws and government—perfect; but as against all irregular controul, the mandates of stronger individuals, none. In this state, at a time earlier than the commencement of history—in this same state, judging from analogy, we, the inhabitants of the part of the globe we call Europe, were;—no government, consequently no rights: no rights, consequently no property—no legal security—no legal liberty: security not more than belongs to beasts—forecast and sense of insecurity keener—consequently in point of happiness below the level of the brutal race.
In proportion to the want of happiness resulting from the want of rights, a reason exists for wishing that there were such things as rights. But reasons for wishing there were such things as rights, are not rights;—a reason for wishing that a certain right were established, is not that right—want is not supply—hunger is not bread.
That which has no existence cannot be destroyed—that which cannot be destroyed cannot require anything to preserve it from destruction. Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense,—nonsense upon stilts. But this rhetorical nonsense ends in the old strain of mischievous nonsense: for immediately a list of these pretended natural rights is given, and those are so expressed as to present to view legal rights. And of these rights, whatever they are, there is not, it seems, any one of which any government can, upon any occasion whatever, abrogate the smallest particle.
So much for terrorist language. What is the language of reason and plain sense upon this same subject? That in proportion as it is right or proper, i. e. advantageous to the society in question, that this or that right—a right to this or that effect—should be established and maintained, in that same proportion it is wrong that it should be abrogated: but that as there is no right, which ought not to be maintained so long as it is upon the whole advantageous to the society that it should be maintained, so there is no right which, when the abolition of it is advantageous to society, should not be abolished. To know whether it would be more for the advantage of society that this or that right should be maintained or abolished, the time at which the question about maintaining or abolishing is proposed, must be given, and the circumstances under which it is proposed to maintain or abolish it; the right itself must be specifically described, not jumbled with an undistinguishable heap of others, under any such vague general terms as property, liberty, and the like.
One thing, in the midst of all this confusion, is but too plain. They know not of what they are talking under the name of natural rights, and yet they would have them imprescriptible—proof against all the power of the laws—pregnant with occasions summoning the members of the community to rise up in resistance against the laws. What, then, was their object in declaring the existence of imprescriptible rights, and without specifying a single one by any such mark as it could be known by? This and no other—to excite and keep up a spirit of resistance to all laws—a spirit of insurrection against all governments—against the governments of all other nations instantly,—against the government of their own nation—against the government they themselves were pretending to establish—even that, as soon as their own reign should be at an end. In us is the perfection of virtue and wisdom: in all mankind besides, the extremity of wickedness and folly. Our will shall consequently reign without controul, and for ever: reign now we are living—reign after we are dead.
All nations—all future ages—shall be, for they are predestined to be, our slaves.
Future governments will not have honesty enough to be trusted with the determination of what rights shall be maintained, what abrogated—what laws kept in force, what repealed. Future subjects (I should say future citizens, for French government does not admit of subjects) will not have wit enough to be trusted with the choice whether to submit to the determination of the government of their time, or to resist it. Governments, citizens—all to the end of time—all must be kept in chains.
Such are their maxims—such their premises—for it is by such premises only that the doctrine of imprescriptible rights and unrepealable laws can be supported.
What is the real source of these imprescriptible rights—these unrepealable laws? Power turned blind by looking from its own height: self-conceit and tyranny exalted into insanity. No man was to have any other man for a servant, yet all men were forever to be their slaves. Making laws with imposture in their mouths, under pretence of declaring them—giving for laws anything that came uppermost, and these unrepealable ones, on pretence of finding them ready made. Made by what? Not by a God—they allow of none; but by their goddess, Nature.
The origination of governments from a contract is a pure fiction, or in other words, a falsehood. It never has been known to be true in any instance; the allegation of it does mischief, by involving the subject in error and confusion, and is neither necessary nor useful to any good purpose.
All governments that we have any account of have been gradually established by habit, after having been formed by force; unless in the instance of governments formed by individuals who have been emancipated, or have emancipated themselves, from governments already formed, the governments under which they were born—a rare case, and from which nothing follows with regard to the rest. What signifies it how governments are formed? Is it the less proper—the less conducive to the happiness of society—that the happiness of society should be the one object kept in view by the members of the government in all their measures? Is it the less the interest of men to be happy—less to be wished that they may be so—less the moral duty of their governors to make them so, as far as they can, at Mogadore than at Philadelphia?
Whence is it, but from government, that contracts derive their binding force? Contracts came from government, not government from contracts. It is from the habit of enforcing contracts, and seeing them enforced, that governments are chiefly indebted for whatever disposition they have to observe them.
Sentence 2. These rights [these imprescriptible as well as natural rights,] are liberty, property, security, and resistance to oppression.
Observe the extent of these pretended rights, each of them belonging to every man, and all of them without bounds. Unbounded liberty; that is, amongst other things, the liberty of doing or not doing on every occasion whatever each man pleases:—Unbounded property; that is, the right of doing with everything around him (with every thing at least, if not with every person,) whatsoever he pleases; communicating that right to anybody, and withholding it from anybody:—Unbounded security; that is, security for such his liberty, for such his property, and for his person, against every defalcation that can be called for on any account in respect of any of them:—Unbounded resistance to oppression; that is, unbounded exercise of the faculty of guarding himself against whatever unpleasant circumstance may present itself to his imagination or his passions under that name. Nature, say some of the interpreters of the pretended law of nature—nature gave to each man a right to everything; which is, in effect, but another way of saying—nature has given no such right to anybody; for in regard to most rights, it is as true that what is every man’s right is no man’s right, as that what is every man’s business is no man’s business. Nature gave—gave to every man a right to everything:—be it so—true; and hence the necessity of human government and human laws, to give to every man his own right, without which no right whatsoever would amount to anything. Nature gave every man a right to everything before the existence of laws, and in default of laws. This nominal universality and real nonentity of right, set up provisionally by nature in default of laws, the French oracle lays hold of, and perpetuates it under the law and in spite of laws. These anarchical rights which nature had set out with, democratic art attempts to rivet down, and declares indefeasible.
Unbounded liberty—I must still say unbounded liberty;—for though the next article but one returns to the charge, and gives such a definition of liberty as seems intended to set bounds to it, yet in effect the limitation amounts to nothing; and when, as here, no warning is given of any exception in the texture of the general rule, every exception which turns up is, not a confirmation but a contradiction of the rule:—liberty, without any pre-announced or intelligible bounds; and as to the other rights, they remain unbounded to the end: rights of man composed of a system of contradictions and impossibilities.
In vain would it be said, that though no bounds are here assigned to any of these rights, yet it is to be understood as taken for granted, and tacitly admitted and assumed, that they are to have bounds; viz. such bounds as it is understood will be set them by the laws. Vain, I say, would be this apology; for the supposition would be contradictory to the express declaration of the article itself, and would defeat the very object which the whole declaration has in view. It would be self-contradictory, because these rights are, in the same breath in which their existence is declared, declared to be imprescriptible; and imprescriptible, or, as we in England should say, indeteasible, means nothing unless it exclude the interference of the laws.
It would be not only inconsistent with itself, but inconsistent with the declared and sole object of the declaration, if it did not exclude the interference of the laws. It is against the laws themselves, and the laws only, that this declaration is levelled. It is for the hands of the legislator and all legislators, and none but legislators, that the shackles it provides are intended,—it is against the apprehended encroachments of legislators that the rights in question, the liberty and property, and so forth, are intended to be made secure,—it is to such encroachments, and damages, and dangers, that whatever security it professes to give has respect. Precious security for unbounded rights against legislators, if the extent of those rights in every direction were purposely left to depend upon the will and pleasure of those very legislators!
Nonsensical or nugatory, and in both cases mischievous: such is the alternative.
So much for all these pretended indefeasible rights in the lump: their inconsistency with each other, as well as the inconsistency of them in the character of indefeasible rights with the existence of government and all peaceable society, will appear still more plainly when we examine them one by one.
1. Liberty, then, is imprescriptible—incapable of being taken away—out of the power of any government ever to take away: liberty,—that is, every branch of liberty—every individual exercise of liberty; for no line is drawn—no distinction—no exception made. What these instructors as well as governors of mankind appear not to know, is, that all rights are made at the expense of liberty—all laws by which rights are created or confirmed. No right without a correspondent obligation. Liberty, as against the coercion of the law, may, it is true, be given by the simple removal of the obligation by which that coercion was applied—by the simple repeal of the coercing law. But as against the coercion applicable by individual to individual, no liberty can be given to one man but in proportion as it is taken from another. All coercive laws, therefore (that is, all laws but constitutional laws, and laws repealing or modifying coercive laws,) and in particular all laws creative of liberty, are, as far as they go, abrogative of liberty. Not here and there a law only—not this or that possible law, but almost all laws, are therefore repugnant to these natural and imprescriptible rights: consequently null and void, calling for resistance and insurrection, and so on, as before.
Laws creative of rights of property are also struck at by the same anathema. How is property given? By restraining liberty; that is, by taking it away so far as is necessary for the purpose. How is your house made yours? By debarring every one else from the liberty of entering it without your leave. But
2. Property. Property stands second on the list,—proprietary rights are in the number of the natural and imprescriptible rights of man—of the rights which a man is not indebted for to the laws, and which cannot be taken from him by the laws. Men—that is, every man (for a general expression given without exception is an universal one) has a right to property, to proprietary rights, a right which cannot be taken away from him by the laws. To proprietary rights. Good: but in relation to what subject? for as to proprietary rights—without a subject to which they are referable—without a subject in or in relation to which they can be exercised—they will hardly be of much value, they will hardly be worth taking care of, with so much solemnity. In vain would all the laws in the world have ascertained that I have a right to something. If this be all they have done for me—if there be no specific subject in relation to which my proprietary rights are established, I must either take what I want without right, or starve. As there is no such subject specified with relation to each man, or to any man (indeed how could there be?) the necessary inference (taking the passage literally) is, that every man has all manner of proprietary rights with relation to every subject of property without exception: in a word, that every man has a right to every thing. Unfortunately, in most matters of property, what is every man’s right is no man’s right; so that the effect of this part of the oracle, if observed, would be, not to establish property, but to extinguish it—to render it impossible ever to be revived: and this is one of the rights declared to be imprescriptible.
It will probably be acknowledged, that according to this construction, the clause in question is equally ruinous and absurd:—and hence the inference may be, that this was not the construction—this was not the meaning in view. But by the same rule, every possible construction which the words employed can admit of, might be proved not to have been the meaning in view: nor is this clause a whit more absurd or ruinous than all that goes before it, and a great deal of what comes after it. And, in short, if this be not the meaning of it, what is? Give it a sense—give it any sense whatever,—it is mischievous:—to save it from that imputation, there is but one course to take, which is to acknowledge it to be nonsense.
Thus much would be clear, if anything were clear in it, that according to this clause, whatever proprietary rights, whatever property a man once has, no matter how, being imprescriptible, can never be taken away from him by any law: or of what use or meaning is the clause? So that the moment it is acknowledged in relation to any article, that such article is my property, no matter how or when it became so, that moment it is acknowledged that it can never be taken away from me: therefore, for example, all laws and all judgments, whereby anything is taken away from me without my free consent—all taxes, for example, and all fines—are void, and, as such, call for resistance and insurrection, and so forth, as before.
3. Security. Security stands the third on the list of these natural and imprescriptible rights which laws did not give, and which laws are not in any degree to be suffered to take away. Under the head of security, liberty might have been included, so likewise property: since security for liberty, or the enjoyment of liberty, may be spoken of as a branch of security:—security for property, or the enjoyment of proprietary rights, as another. Security for person is the branch that seems here to have been understood:—security for each man’s person, as against all those hurtful or disagreeable impressions (exclusive of those which consist in the mere disturbance of the enjoyment of liberty,) by which a man is affected in his person; loss of life—loss of limbs—loss of the use of limbs—wounds, bruises, and the like. All laws are null and void, then, which on any account or in any manner seek to expose the person of any man to any risk—which appoint capital or other corporal punishment—which expose a man to personal hazard in the service of the military power against foreign enemies, or in that of the judicial power against delinquents:—all laws which, to preserve the country from pestilence, authorize the immediate execution of a suspected person, in the event of his transgressing certain bounds.
4. Resistance to oppression. Fourth and last in the list of natural and imprescriptible rights, resistance to oppression—meaning, I suppose, the right to resist oppression. What is oppression? Power misapplied to the prejudice of some individual. What is it that a man has in view when he speaks of oppression? Some exertion of power which he looks upon as misapplied to the prejudice of some individual—to the producing on the part of such individual some suffering, to which (whether as forbidden by the laws or otherwise) we conceive he ought not to have been subjected. But against everything that can come under the name of oppression, provision has been already made, in the manner we have seen, by the recognition of the three preceding rights; since no oppression can fall upon a man which is not an infringement of his rights in relation to liberty, rights in relation to property, or rights in relation to security, as above described. Where, then, is the difference?—to what purpose this fourth clause after the three first? To this purpose: the mischief they seek to prevent, the rights they seek to establish, are the same; the difference lies in the nature of the remedy endeavoured to be applied. To prevent the mischief in question, the endeavour of the three former clauses is, to tie the hand of the legislator and his subordinates, by the fear of nullity, and the remote apprehension of general resistance and insurrection. The aim of this fourth clause is to raise the hand of the individual concerned to prevent the apprehended infraction of his rights at the moment when he looks upon it as about to take place.
Whenever you are about to be oppressed, you have a right to resist oppression: whenever you conceive yourself to be oppressed, conceive yourself to have a right to make resistance, and act accordingly. In proportion as a law of any kind—any act of power, supreme or subordinate, legislative, administrative, or judicial, is unpleasant to a man, especially if, in consideration of such its unpleasantness, his opinion is, that such act of power ought not to have been exercised, he of course looks upon it as oppression: as often as anything of this sort happens to a man—as often as anything happens to a man to inflame his passions,—this article, for fear his passions should not be sufficiently inflamed of themselves, sets itself to work to blow the flame, and urges him to resistance. Submit not to any decree or other act of power, of the justice of which you are not yourself perfectly convinced. If a constable call upon you to serve in the militia, shoot the constable and not the enemy;—if the commander of a press-gang trouble you, push him into the sea—if a bailiff, throw him out of the window. If a judge sentence you to be imprisoned or put to death, have a dagger ready, and take a stroke first at the judge.
The principle of every sovereignty [government] resides essentially in the nation. No body of men—no single individual—can exercise any authority which does not expressly issue from thence.
Of the two sentences of which this article is composed, the first is perfectly true, perfectly harmless, and perfectly uninstructive. Government and obedience go hand in hand. Where there is no obedience, there is no government; in proportion as obedience is paid, the powers of government are exercised. This is true under the broadest democracy: this is equally true under the most absolute monarchy. This can do no harm—can do no good, anywhere. I speak of its natural and obvious import taken by itself, and supposing the import of the word principle to be clear and unambiguous, as it is to be wished that it were, that is, taking it to mean efficient cause. Of power on the one part, obedience on the other is most certainly everywhere the efficient cause.
But being harmless, it would not answer the purpose, as delivered by the immediately succeeding sentence: being harmless, this meaning is not that which was in view. It is meant as an antecedent proposition, on which the next proposition is grounded in the character of a consequent. No body of men, no individual, can exercise any authority which does not issue from the nation in an express manner. Can—still the ambiguous and envenomed can. What cannot they in point of fact? Cannot they exercise authority over other people, if and so long as other people submit to it? This cannot be their meaning: this cannot be the meaning, not because it is an untrue and foolish one, but because it contributes nothing to the declared purpose. The meaning must be here, as elsewhere, that of every authority not issuing from the nation in an express manner, every act is void: consequently ought to be treated as such—resisted, risen up against, and overthrown. Issuing from the nation in an express manner, is having been conferred by the nation, by a formal act, in the exercise of which the nation, i. e. the whole nation, joined.
An authority issues from the nation in one sense, in the ordinary implied manner, which the nation submits to the exercise of, having been in the habit of submitting to it, every man as long as he can remember, or to some superior authority from which it is derived. But this meaning it was the evident design of the article to put a negative upon; for it would not have answered the disorganizing purpose, all along apparent, and more than once avowed. It is accordingly for the purpose of putting a negative upon it, that the word expressément—in an express way or manner—is subjoined. Every authority is usurped and void, to which a man has been appointed in any other mode than that of popular election; and popular election made by the nation—that is, the whole nation (for no distinction or division is intimated,) in each case.
And this is expressly declared to be the case, not only in France, under the government of France, but everywhere, and under every government whatsoever. Consequently, all the acts in every government in Europe, for example, are void, excepted, perhaps, or rather not excepted, two or three of the Swiss Cantons;—the persons exercising the powers of government in these countries, usurpers—resistance to them, and insurrection against them, lawful and commendable.
The French government itself not excepted:—whatever is, has been, or is to be, the government of France. Issue from the nation: that is, from the whole nation, for no part of it is excluded. Women consequently included, and children—children of every age. For if women and children are not part of the nation, what are they? Cattle? Indeed, how can a single soul be excluded, when all men—all human creatures—are, and are to be, equal in regard to rights—in regard to all sorts of rights, without exception or reserve?
Liberty consists in being able to do that which is not hurtful to another, and therefore the exercise of the natural rights of each man has no other bounds than those which insure to the other members of the society the enjoyment of the same rights. These bounds cannot be determined but by the law.
In this article, three propositions are included:—
Proposition 1. Liberty consists in being able to do that which is not hurtful to another. What! in that, and nothing else? Is not the liberty of doing mischief liberty? If not, what is it? and what word is there for it in the language, or in any language by which it can be spoken of? How childish, how repugnant to the ends of language, is this perversion of language!—to attempt to confine a word in common and perpetual use, to an import to which nobody ever confined it before, or will continue to confine it! And so I am never to know whether I am at liberty or not to do or to omit doing one act, till I see whether or no there is anybody that may be hurt by it—till I see the whole extent of all its consequences? Liberty! What liberty?—as against what power? as against coercion from what source? As against coercion issuing from the law?—then to know whether the law have left me at liberty in any respect in relation to any act, I am to consult not the words of the law, but my own conception of what would be the consequences of the act. If among these consequences there be a single one by which anybody would be hurt, then, whatever the law says to me about it. I am not at liberty to do it. I am an officer of justice, appointed to superintend the execution of punishments ordered by justice:—if I am ordered to cause a thief to be whipped,—to know whether I am at liberty to cause the sentence to be executed, I must know whether whipping would hurt the thief: if it would, then I am not at liberty to whip the thief—to inflict the punishment which it is my duty to inflict.
Proposition 2. And therefore the exercise of the natural rights of each man has no other bounds than those which insure to the other members of the society the enjoyment of those same rights. Has no other bounds? Where is it that it has no other bounds? In what nation—under what government? If under any government, then the state of legislation under that government is in a state of absolute perfection. If there be no such government, then, by a confession necessarily implied, there is no nation upon earth in which this definition is conformable to the truth.
Proposition 3. These bounds cannot be determined but by the law. More contradiction, more confusion. What then?—this liberty, this right, which is one of four rights that existed before laws, and will exist in spite of all that laws can do, owes all the boundaries it has, all the extent it has, to the laws. Till you know what the laws say to it, you do not know what there is of it, nor what account to give of it: and yet it existed, and that in full force and vigour, before there were any such things as laws; and so will continue to exist, and that for ever, in spite of anything which laws can do to it. Still the same inaptitude of expressions—still the same confusion of that which it is supposed is, with that which it is conceived ought to be.
What says plain truth upon this subject? What is the sense most approaching to this nonsense?
The liberty which the law ought to allow of, and leave in existence—leave uncoerced, unremoved—is the liberty which concerns those acts only, by which, if exercised, no damage would be done to the community upon the whole; that is, either no damage at all, or none but what promises to be compensated by at least equal benefit.
Accordingly, the exercise of the rights allowed to and conferred upon each individual, ought to have no other bounds set to it by the law, than those which are necessary to enable it to maintain every other individual in the possession and exercise of such rights as it is consistent with the greatest good of the community that he should be allowed. The marking out of these bounds ought not to be left to anybody but the legislator acting as such—that is, to him or them who are acknowledged to be in possession of the sovereign power: that is, it ought not to be left to the occasional and arbitrary declaration of any individual, whatever share he may possess of subordinate authority.
The word autrui—another, is so loose,—making no distinction between the community and individuals,—as, according to the most natural construction, to deprive succeeding legislators of all power of repressing, by punishment or otherwise, any acts by which no individual sufferers are to be found; and to deprive them beyond a doubt of all power of affording protection to any man, woman, or child, against his or her own weakness, ignorance, or imprudence.
The law has no right to forbid any other actions than such as are hurtful to society. Whatever is not forbidden by the law, cannot be hindered; nor can any individual be compelled to do that which the law does not command.
Sentence 1. The law has no right (n’a le droit) to forbid any other actions than such as are hurtful to society. The law has no right (n’a le droit, not ne peut pas.) This, for once, is free from ambiguity. Here the mask of ambiguity is thrown off. The avowed object of this clause is to preach constant insurrection, to raise up every man in arms against every law which he happens not to approve of. For, take any such action you will, if the law have no right to forbid it, a law forbidding it is null and void, and the attempt to execute it an oppression, and resistance to such attempt, and insurrection in support of such resistance, legal, justifiable, and commendable.
To have said that no law ought to forbid any act that is not of a nature prejudical to society, would have answered every good purpose, but would not have answered the purpose which is intended to be answered here.
A government which should fulfil the expectations here held out, would be a government of absolute perfection. The instance of a government fulfilling these expectations, never has taken place, nor till men are angels ever can take place. Against every government which fails in any degree of fulfilling these expectations, then, it is the professed object of this manifesto to excite insurrection: here, as elsewhere, it is therefore its direct object to excite insurrection at all times against every government whatsoever.
Sentence 2. Whatever is not forbidden by the law, cannot be hindered, nor can any individual be compelled to do what the law does not command.
The effect of this law, for want of the requisite exceptions or explanations, is to annihilate, for the time being and for ever, all powers of command: all power, the exercise of which consists in the issuing and inforcing obedience to particular and occasional commands; domestic power, power of the police, judicial power, military power, power of superior officers, in the line of civil administration, over their subordinates. If I say to my son, Do not mount that horse, which you are not strong enough to manage; if I say to my daughter, Do not go to that pond, where there are young men bathing; they may set me at defiance, bidding me show them where there are anything about mounting unruly horses, or going where there are young men bathing, in the laws. By the same clause, they may each of them justify themselves in turning their backs upon the lesson I have given them; while my apprentice refuses to do the work I have given him; and my wife, instead of providing the meals I had desired her to provide for ourselves and family, tells me she thinks fit to go and dine elsewhere. In the existing order of things, under any other government than that which was here to be organized, whatever is commanded or forbidden in virtue of a power which the law allows of and recognises, is virtually and in effect commanded and forbidden by the law itself, since, by the support it gives to the persons in question in the exercise of their respective authorities, it shows itself to have adopted those commands, and considered them as its own before they are issued, and that, whatever may be the purport of them, so long as they are confined within the limits it has marked out. But all these existing governments being fundamentally repugnant to the rights of man, are null and void, and incapable of filling up this or any other gap in the texture of the new code. Besides, this right of not being hindered from doing anything which the law itself has not forbidden, nor compelled to do anything which it has not commanded, is an article of natural, unalienable, sacred, and imprescriptible right, over which political laws have no sort of power; so that the attempt to fill up the gap, and to establish any such power of commanding or forbidding what is not already commanded and forbidden by the law, would be an act of usurpation, and all such powers so attempted to be established, null and void. How also can any such powers subsist in a society of which all the members are free and equal in point of rights?
Admit, however, that room is given for the creation of the powers in question by the spirit, though not by the letter of this clause—what follows? That in proportion as it is harmless, it is insignificant, and incapable of answering its intended purpose. This purpose is to protect individuals against oppressions, to which they might be subjected by other individuals possessed of powers created by the law, in the exercise or pretended exercise of those powers. But if these powers are left to the determination of succeeding and (according to the doctrine of this code) inferior legislatures, and may be of any nature and to any extent which these legislatures may think fit to give them,—what does the protection here given amount to, especially as against such future legislatures, for whose hands all the restraints which it is the object of the declaration to provide are intended? Mischievous or nugatory is still the alternative.
The employment of the improper word can, instead of the proper word shall, is not unworthy of observation. Shall is the language of the legislator who knows what he is about, and aims at nothing more:—can, when properly employed in a book of law, is the language of the private commentator or expositor, drawing inferences from the text of the law—from the acts of the legislator, or what takes the place of the acts of the legislator—the practice of the courts of justice.
The law is the expression of the general will. Every citizen has the right of concurring in person, or by his representatives, in the formation of it: it ought to be the same for all, whether it protect, or whether it punish. All the citizens being equal in its eyes, are equally admissible to all dignities, public places, and employments, according to their capacity, and without any other distinction than that of their virtues and their talents.
This article is a hodge-podge, containing a variety of provisions, as wide from one another as any can be within the whole circuit of the law: some relating to the constitutional branch, some to the civil, some to the penal; and, in the constitutional department, some relating to the organization of the supreme power, others to that of the subordinate branches.
Proposition 1. The law is the expression of the general will. The law? What law is the expression of the general will? Where is it so? In what country?—at what period of time? In no country—at no period of time—in no other country than France—nor even in France. As to general, it means universal; for there are no exceptions made,—women, children, madmen, criminals—for these being human creatures, have already been declared equal in respect of rights: nature made them so; and even were it to be wished that the case were otherwise, nature’s work being unalterable, and the rights unalienable, it would be to no purpose to attempt it.
What is certain is, that in any other nation at any rate, no such thing as a law ever existed to which this definition could be applied. But that is nothing to the purpose, since a favourite object of this effusion of universal benevolence, is to declare the governments of all other countries dissolved, and to persuade the people that the dissolution has taken place.
But anywhere—even in France—how can the law be the expression of the universal or even the general will of all the people, when by far the greater part have never entertained any will, or thought at all about the matter; and of those who have, a great part (as is the case with almost all laws made by a large assembly) would rather it had not taken place.
Sentence 2. Every citizen has the right of concurring in person, or by his representatives, in the formation of it.
Here the language changes from the enunciation of the supposed practice, to the enunciation of the supposed matter of right. Why does it change? After having said so silly a thing as that there is no law anywhere, but what was the expression of the will of every member of the community, what should have hindered its going on in the same silly strain, and saying that everybody did concur—did join in the formation of it? However, as the idea of right is, in this second sentence at any rate, presented by its appropriate term, the ambiguity diffused by the preceding sentence is dissipated; and now it appears beyond a doubt, that every law in the formation of which any one citizen was debarred from concurring, either in person or by his representatives, is, and ever will be, here and there and everywhere, a void law.
To characterize proxies, the French language, like the English, has two words—representatives and deputies: the one liable to misconstruction, the other not,—to misconstruction, and such misconstruction as to be made expressive of a sense directly opposite to that which appears here to have been intended; the one tainted with fiction as well as ambiguity, the other expressing nothing but the plain truth. Being so superior to imitation—so free to choose—not tied down by usage as people in Britain are—how come they to have taken the English word representatives, which has given occasion to so many quibbles, instead of their own good word deputies, which cannot give occasion to anything like a quibble? The king of Great Britain is acknowledged to be the representative of the British nation, in treating with foreign powers; but does the whole nation ever meet together and join in signing an authority to him so to do? The king of Great Britain is acknowledged, in this instance, to represent the British nation; but, in this instance, is it ever pretended that he has been deputed by it? The parliamentary electors have been said to represent the non-electors; and the members of parliament to represent both; but did anybody ever speak of either members or electors as having been deputed by the non-electors? Using the improper word representatives, instead of the proper word deputies, the French might be saddled with the British constitution, for anything there is in this clause to protect them from so horrible a grievance. Representatives sounded better, perhaps, than deputies. Men who are governed by sounds, sacrifice everything to sound: they neither know the value of precision, nor are able to attain it.
Sentence 3. It [the law] ought to be the same for all, whether it protect or whether it punish—[i. e. as well in respect of the protection it affords, as in respect of the punishment it inflicts.]
This clause appears reasonable in the main, but in respect to certain points it may be susceptible of explanations and exceptions, from the discussion of which it might have been as well if all posterity had not been debarred.
As to protection, English law affords a punishment, which consists in being put out of the protection of the law; in virtue of which a man is debarred from applying for redress from any kind of injury. For my own part, I do not approve of any such punishment: but perhaps they do, who having it in their power to abrogate it, yet retain it. In France, I suppose it is approved of, where, in a much severer form than the English, it has been so much practised. This species of punishment is inhibited for ever, by the letter at least of this clause. As to the spirit of it, one of the ruling features of this composition from end to end is, that the spirit of it is incomprehensible.
Under the English law, heavier damages are given in many instances to the ministers of justice, acting as such, in case of ill-founded prosecutions against them, for supposed injuries to individuals, than would be given to private individuals aggrieved by prosecutions for the same injuries. The notion evidently is, that the servants of the public, not having so strong an interest in defending the rights of the public as individuals have in defending their own, the public man would be apt to be deterred from doing his duty if the encouragement he have to do it were no greater than the encouragement which the individual has to defend his right. These examples, not to plunge further into details, appear sufficient to suggest a reasonable doubt, whether, even in this instance, the smack-smooth equality, which rolls so glibly out of the lips of the rhetorician, be altogether compatible with that undeviating conformity to every bend and turn in the line of utility which ought to be the object of the legislator.
As to punishment, a rule as strictly subordinate to the dictates of utility, as the doctrine of undeviating equality is congenial to the capricious play of the imagination, is, not in any instance to employ more punishment than is necesary to the purpose. Where, as between two individuals, the measure of sensibility is different, a punishment which in name—that is, according to every description which could be given of it in and by the law, would be equal in the two instances—would in effect be widely different. Fifty lashes may, in the estimation of the law, be equal to fifty lashes; but it is what no man can suppose, that the suffering which a hard-working young man, or even a young woman of the hard-working class, would undergo from the application of fifty lashes, could be really equal in intensity to that which must have been endured from the same nominal punishment (were even the instrument and force applied the same) by the Countess Lapuchin, till then the favourite, and one of the finest ornaments of the court of a Russian empress. Banishment would, upon the face of the law, be equal to banishment: but it will not readily be admitted, that to a servant of the public, who happens to have nothing to live upon but a salary, the receipt of which depends upon attendance at his office, it would be no greater punishment than to a sturdy labourer, who in one country as well as in another, may derive an equal livelihood from the labour of his hands.
Those, if any such there are, to whom distinctions such as these would appear consonant to reason and utility, might perhaps regard them as not irreconcilable with the language of this clause. But others might think them either not reasonable, or, though reasonable, not thus reconcilable. And were any such distinctions to be ingrafted into the law by any succeeding legislators, those who did not approve of the alteration would, if at all actuated by any regard to the tenor and spirit of this declaration, raise a cry of aristocracy, and pronounce the alteration void: and then comes resistance and insurrection, and all the evils in their train.
Sentence 4. All the citizens being equal in its eyes, are all of them admissible to all dignities, public places, and employments, according to their capacity, and without any other distinction than that of their virtues and their talents.
This is one of the few clauses, not to say the only one, which does not seem liable to very serious objection: there is nothing to object to in its general spirit and meaning, though perhaps there is something as to the expression. In general, it were to be wished that no class of men should stand incapacitated with regard to any object of competition by any general law: nor can anything be said in favour of those hereditary incapacitations which suggested and provoked this clause. Yet as governments are constituted, and as the current of opinion runs, there may be cases where some sorts of incapacitation in regard to office seem called for by the purpose which operated as the final cause in the institution of the office. It seems hardly decent or consistent, for example, to allow to a Jew the faculty of presenting to a Christian benefice with cure of souls: though, by a judgment of no very ancient date, the law of England was made to lend its sanction to an appointment of this sort. As inconsistent does it appear to admit a Catholic patron to appoint to a Protestant, or a Protestant to a Catholic benefice; at least so long as diversities in matters of religious profession continue to have ill-will for their accompaniment. Ecclesiastical patronage in the hands of individuals, is indeed one of the abuses, or supposed abuses, which it was the object of this code to eradicate: and since then, the maintenance of an ecclesiastical establishment of any kind at the expense of the state, has, in France, been added to the catalogue of abuses. But at the time of the promulgation of this code, the spirit of subversion had not proceeded this length: ecclesiastical offices were still kept up; though, in relation to all these, together with all other offices, the right of nomination was given to assemblies of the people. The incongruity of admitting the professor of a rival religion to the right of suffrage, would therefore be the same in this instance as in the case where the nomination rested in a single breast, though the danger would seldom be of equal magnitude.
Madmen, and criminals of the worst description, are equally protected against exclusion from any office, or the exercise of any political right. As to offices which under this system a man cannot come into possession of but by election, the inconvenience, it may be said, cannot be great; for though not incapable of being elected, there is no danger of their being so. But this is not the case with regard to any or those political privileges which this system gives a man in his own right, and as a present derived from the hands of nature—such as the right of suffrage with regard to offices. Were an assassin, covered with the blood of the murdered person, and ordered for execution on the second of the month—or, which is doubtless esteemed worse, a royalist convicted of adherence to the government under which his country had existed for so many hundred years—to put in his claim for admittance to give his suffrage in the election of a deputy to the convention, or of a mayor of the Paris municipality, I see not how his claim could be rejected without an infringement of this clause. Indeed, if this right, like all the others, be, as we are told over and over again, a present of the goddess Nature, and proof against all attacks of law, what is to be done, and what remedy can be administered by the law? Something, it is true, is said of talents and of virtues; and the madman, it may be said, is deficient in talents, and the criminal in point of virtues. But neither talents nor virtues are mentioned otherwise than as marks of pre-eminence and distinction, recommending the possessors to a proportionable degree of favour and approbation with a view to preference: nothing is said of any deficiency in point of talent or virtue as capable of shutting the door against a candidate: distinction is the word, not exception,—distinction among persons all within the list, not exception excluding persons out of the list.
So far from admitting the exclusion of classes of men, however incompetent, the provision does not so much as admit of the exclusion of individuals from any office. An individual, or a knot of individuals, bent upon affording a constant obstruction to all business, and selected perhaps for that very purpose, might be returned to the supreme assembly, or any other; nor could they be got rid of without a breach of the natural and inviolable rights of man, as declared and established by this clause.
What makes the matter still the clearer is, that the particular provision is given in the character of a consequence of, that is, as being already included in the preceding article, declaring the perfect and unchangeable equality of mankind in respect of all manner of rights:—“The citizens being all of them equal in its sight, are all of them equally admissible,” and so forth. As the general proposition, therefore, admits of no exception to it, no more can this particular application of it have one. Virtues and talents sound prettily, and flatter the imagination, but in point of clearness, had that been the object, the clause, such as it is, would have been all the better had it ended with the words public places and employments; and had all that is said about capacity, and distinction, and virtues, and talents, been left out.
No one can be accused, arrested or detained,but in the cases determined by the law, and according to the forms prescribed by the law. Those who solicit, issue, execute, or cause to be executed, arbitrary orders, ought to be punished; but every citizen, summoned or arrested in virtue of the law, ought to obey that instant: he renders himself culpable by resistance.
Sentence 1. No one can be accused, arrested, or detained, but in the cases determined by the law, and according to the forms prescribed by the law.
Here again we have the improper word can, instead of ought. Here, however, the power of the law is recognized, and passes unquestioned: the clause, therefore, is in so far not mischievous and absurd, but only nugatory, and beside the purpose. The professed object of the whole composition is to tie the hands of the law, by declaring pretended rights over which the law is never to have any power,—liberty, the right of enjoying liberty:—here this very liberty is left at the mercy and good pleasure of the law. As it neither answers the purpose it professes to have in view, so neither does it fulfil the purpose which it ought to have had in view, and might have fulfilled,—the giving the subject, or, to speak in the French style, the citizen, that degree of security which, without attempting to bind the hands of succeeding legislators, might have been given him against arbitrary mandates.
There is nothing in this article which might not be received, and without making any alteration, into the constitutional codes of Prussia, Denmark, Russia, or Morocco. It is or is not law—(no matter which, for I put it so only for supposition sake)—it is law, let us say, in those countries, that upon order signed or issued by any one of a certain number of persons—suppose ministers of state—any individual may be arrested at any time, and detained in any manner and for any length of time, without any obligation on the part of the person issuing the order to render account of the issuing or of the execution of it to anybody but the monarch. If such were the law in these countries respectively, before the establishment of such a law as this clause imports, such may it remain, and that without effecting any abridgment of the powers of the ministers in question, or applying any check to the abuses of those powers, or affording the subject any security or remedy against the abuses of those powers, after the introduction of such article.
The case in which it is determined by the law, that a man may be so arrested and detained, is the case of an order having been issued for that purpose by any one in such a list of ministers; and the form in which the order for that purpose must be conceived, is the wording in the form in which orders to the purpose in question have been in use to be worded, or, in short, any other form which the ministers in question may be pleased to give it. If to this interpretation any objection can be made, it must be grounded on the ambiguity of the word the law—an ambiguity resulting from the definition above given of it in this declaratory code. If the laws are all of them ipso facto void, as this manifesto has, by the preceding article, declared them to be in all countries where the laws are made by other authority than that of the whole body of the people, then indeed the security intended to be afforded is afforded; because in that case no arrest or detention can be legal, till the ground and form of it have been preordained by a law so established. On the contrary, if that article be to be explained away, and countries foreign to France are to be left in possession of their laws, then the remedy and security amounts to nothing, for the reason we have seen. Nugatory or mischievous: such is the option every where else—such is the option here.
Sentence 2. Those who solicit, issue, execute or cause to be executed, arbitrary orders, ought to be punished.
Yes, says a Moullah of Morocco, after the introduction of this article into the Morocco code,—yes, if an order to the prejudice of the liberty of the subject be illegal, it is an arbitrary order, and the issuing of it is an offence against the liberty of the subject, and as such ought to be, and shall be punished. If one dog of an infidel presume to arrest or detain another dog of an infidel, the act of arrest and detention is an arbitrary one, and nothing can be more reasonable than what the law requires, viz. that the presuming dog be well bastinadoed. But if one of the faithful, to every one of whom the sublime emperor, crowned with the sun and moon, has given the command over all dogs, think fit to shut up this or that dog in a strange kennel, what is there of arbitrariness in that? It is no more than what our customs, which are our laws, allow of everywhere, when the true believers have dogs under them.
The security of the individual in this behalf depends, we see, upon the turn given to that part of the law which occupies itself in establishing the powers necessary to be established for the furtherance of justice. Had the penners of this declaration been contented with doing what they might have done consistently with reason and utility, in this view they might have done thus:—they might have warned and instructed them to be particular in the indication of the cases in which they would propose to grant such powers, and in the indication of the forms according to which the powers so granted should be exercised;—for instance, that no man should be arrested but for some one in the list of cases enumerated by the law as capable of warranting an arrest; nor without the specification of that case in an instrument, executed for the purpose of warranting such arrest; nor unless such instrument were signed by an officer of such a description; and so on:—not to attempt to exhibit a code of such importance, extent, and nicety, in the compass of a parenthesis. In doing so, they would have done what would at least have been innocent, and might have had its use:—but in doing so, they would not have prosecuted their declared purpose; which was not only to tutor and lecture their more experienced and consequently more enlightened successors, but to tie their hands, and keep their fellow-citizens in a state of constant readiness to cut their throats.
Sentence 3. But every citizen summoned or arrested in virtue of the law, ought to obey that instant: he renders himself culpable by resistance.
This clause is mighty well in itself:—the misfortune is, that it is nothing to the purpose. The title of this code is the Declaration of Rights; and the business of it is accordingly, in every other part of it, to declare such rights, real or supposed, as are thought fit to be declared. But what is here declared is for once a duty; the mention of which has somehow or other slipt in, as it were through inadvertence. The things that people stand most in need of being reminded of, are, one would think, their duties:—for their rights, whatever they may be, they are apt enough to attend to of themselves. Yet it is only by accident, under a wrong title, and as it were by mistake, and in this single instance, that anything is said that would lead the body of the people to suspect that there were any such things appertaining to them as duties.
He renders himself culpable by resistance: Oh yes—certainly, unless the law for the infringement of which he is arrested, or attempted to be arrested, be an oppresive one: or unless there be anything oppressive in the behaviour of those by whom the arrest or detention is performed. If, for instance, there be anything of the insolence of office in their language or their looks,—if they lay hold of him on a sudden, without leaving him time to run away,—if they offer to pinion his arms while he is drawing his sword, without waiting till he have drawn it,—if they lock the door upon him, or put him into a room that has bars before the window,—or if they come upon him the same night, while the evidences of his guilt are about him and all fresh, instead of waiting on the outside of the door all night till he have destroyed them.* In any of these cases, as well as a thousand others that might be mentioned, can there be any doubts about the oppression? but by Article II. of this same code—an article which has already been established and placed out of the reach of cavil, the right of resistance to oppression is among the number of those rights which nature hath given, and which it is not in the power of man to take away.
The law ought not to establish any other punishments than such as are strictly and evidently necessary; and no one can be punished but in virtue of a law established and promulgated before the commission of the offence, and applied in a legal manner.
Sentence 1. The law ought not to establish any other punishments than such as are strictly and evidently necessary.
The instruction administered by this clause is not great: so far, however, is well, that the purpose declared in this instrument is departed from, and nothing but instruction is here attempted to be given; and which succeeding legislators may be governed by or not as they think fit. It is well, indeed, that penal laws not conforming to this condition are not included in the sentence of nullity so liberally dealt out on other occasions, since, if they were, it would be difficult enough to find a penal law anywhere that would stand the test, from whatever source—pure or impure, democratical, aristocratical, or monarchical—it were derived.
No rules of any tolerable degree of particularity and precision have ever yet been laid down for adjusting either the quantum or the quality of punishments—none such at least could have been in the contemplation of the framers of this code: and supposing such rules laid down, and framed with the utmost degree of particularity and precision of which the nature of the subject is susceptible, it would still be seen in most instances, if not in every instance, that the offence admitted optionally of a considerable variety of punishments, of which no one could be made to appear to be strictly and evidently necessary, to the exclusion of the rest.
As a mere memento, then, of what is fit to be attended to, a clause to this effect may be very well; but as an instruction, calculated to point out in what manner what is so fit to be attended to may be accomplished, nothing can be more trifling or uninstructive:—it is even erroneous and fallacious, since it assumes, and that by necessary implication, that it is possible, in the case of every offence, to find a punishment of which the strict necessity is capable of being made evident,—which is not true. Unfortunately, the existence of a system of punishments of which the absolute necessity is capable of being made evident, with reference to the offences to which they are respectively annexed, is not altogether so clear as the existence of the article by which succeeding legislators are sent in quest of such a system by these their masters and preceptors. One thing is but too evident, that the attention bestowed by the penner of this article, on the subject on which he gives the law to posterity so much at his ease, was anything but strict. It was the Utopia created by the small talk of Paris that was dancing before his eyes, and not the elementary parts of the subject-matter he was treating of—the list of possible punishments, confronted with the list of possible offences. He who writes these observations has bestowed a closer and more minute inquiry into the subject than any body who has been before him—he has laid down a set of rules, by which, as he conceives, the disproportion but too generally prevalent between punishments and offences, may be reduced within bounds greatly more narrow than it occupies anywhere at present in any existing code of laws—and what he would undertake for is, not to make evident any such list of strictly necessary punishments, but the impossibility of its existence.
Sentence 2. No one can be punished but in virtue of a law established and promulgated before the commission of the offence, and applied in a legal manner.
This clause—if instead of the insurrection-inviting word can, the word ought had been employed, as in the preceding clause of this same article—would, as far as it goes, have been well enough. As it is, while on the one hand it not only tends to bring in the everlasting danger of insurrection,—on the other hand, it leaves a considerable part of the danger against which it is levelled, uncovered and unprovided against.
Numerous are the occasions on which sufferings as great as any that, being inflicted with a view to punishment, go under the denomination of punishment, may be inflicted without any such view. These cases a legislator who understood his business would have collected and given notice of, for the purpose of marking out the boundaries and confines of the instruction in question, and saving it from misapplication. Laying an embargo, for instance, is a species of confinement, and, were a man subjected to it with a view to punishment, might in many cases be a very severe punishment: yet if the providence of the legislator happen not to have provided a general law empowering the executive authority to lay an embargo in certain cases, the passing of a special law for that purpose, after the incident which calls for it has taken place, may be a very justifiable, and even necessary measure; for instance, to prevent intelligence from being communicated to a power watching the moment to commence hostilities, or to prevent articles of subsistence or instruments of defence, of which there is a deficiency in the country, from being carried out of it.
Banishment must, in a certain sense, be admitted to be equally penal, whether inflicted for the purpose of punishment, or only by way of precaution,—for the purpose of prevention, and without any view to punishment. Will it be said, that there is no case in which the supreme government of a country ought to be trusted with the power of removing out of it, not even for a time, any persons, not even foreigners, from whom it may see reason to apprehend enterprises injurious to its peace? So in the case of imprisonment, which, though in some instances it may be a severer, may in others be a less severe infliction than banishment. Even death, a suffering which, if inflicted with a view to punishment, is the very extremity of punishment, and which, according to my own conception of the matter, neither need nor ought to be inflicted in any instance for the purpose of punishment, may, in some certain instances perhaps, be highly necessary to be inflicted without any view to punishment—for example, to prevent the diffusion of the plague.
Thus it is, that while the clause passing censure on ex post facto penal laws (a censure in itself, and, while it confines itself to the cases strictly within its declared subject, so highly reasonable) is thus exhibited with the insurrection-inciting can in it, and without the explanations necessary, as we have seen, to guard it against misapplication, the country is exposed to two opposite dangers: one, that an infliction necessary for the purpose of prevention should be resisted and risen up against by individuals, under the notion of its being included in the prohibition given by this clause; the other, that the measure, how necessary soever, should be abstained from by the legislature through apprehension of such resistance.
As to the concluding epithet, and legally applied, it might have been spared without any great injury to the sense. If the law referred to in justification of an act of power have not been legally applied in the exercise of that act of power, the act has not been exercised in virtue of that law.
Every individual being presumed innocent until he have been declared guilty,—if it be judged necessary to arrest him, every act of rigour which is not necessary to the making sure of his person, ought to be severely inhibited by the law.
This article being free from the insurrection-exciting particle, and confining itself to the office of simple instruction, is so far innocent: the object of it is laudable, though the purport of it might have been expressed with more precision.
The maxim it opens with, though of the most consummate triviality, is not the more conformable to reason and utility, and is particularly repugnant to the regulation in support and justification of which it is adduced. That every man ought to be presumed innocent (for “is presumed innocent” is nonsense,) until he have been declared (that is, adjudged) guilty, is very well so long as no accusation has been preferred against him,—or rather, so long as neither that nor any other circumstance appears to afford reason for suspecting the contrary—but very irrational, after that ground for supposing he may have been guilty has been brought to light.
The maxim is particularly misapplied and absurd when applied to the case where it has been judged proper (on sufficient grounds we are to suppose) to put him under arrest, to deprive him of his power of locomotion. Suppose him innocent, and the defalcation made from his liberty is injurious and unwarrantable. The plain truth of the matter is, that the only rational ground for empowering a man to be arrested in such a case, is its not being yet known whether he be innocent or guilty: suppose him guilty, he ought to be punished—suppose him innocent, he ought not to be touched. But plain unsophisticated truth and common sense do not answer the purpose of poetry or rhetoric; and it is from poetry and rhetoric that these tutors of mankind and governors of futurity take their law. A clap from the galleries is their object, not the welfare of the state.
As for the expression, ought to be severely repressed (by punishment I suppose,) it is as well calculated to inflame (the general purpose of this effusion of matchless wisdom) as it is ill calculated to instruct. A rather more simple and instructive way of stating it would have been to say, in relation to every such exercise of rigour which goes beyond what appears necessary to the purpose in question—that of making sure of the person, that not coming within the ground of justification taken from that source, it remains upon the footing of an offence of that description of delinquency, whatever it be, of an injury of the species in question, whatever it may be. The satisfaction and punishment annexed to it will come of course to be of the same nature and extent as for an injury of the same nature and extent having no such circumstance to give occasion to it. Should the punishment in such case be greater or less than the punishment for the same injury would be if altogether divested of the justification which covers the remainder of the unpleasant treatment? Should the punishment of the minister of justice exceeding his authority, be greater or less than that of the uncommissioned individual doing the same mischief without any authority? On some accounts (as would be found upon proper inquiry,) it should be greater: on other accounts, not so great. But these are points of minute detail, which might surely as well have been left to the determination of those who would have had time to give them due examination, as determined upon at random by those who had no such time. The words of this article seem to intimate, that the punishment for the abuse of power by the minister of justice ought to be the greater of the two. But why so? You know better where to meet with the minister of justice than with an offending individual taken at large:—the officer has more to lose than the individual:—and the greater the assurance you have that a delinquent, in case of accusation, will be forth-coming, in readiness to afford satisfaction in the event of his being sentenced to afford it, the less the alarm which his delinquency inspires.
No one ought to be molested [meaning, probably, by government] for his opinions, even in matters of religion, provided that the manisfestation of them does not disturb [better expressed perhaps by saying, except in as far as the manifestation of them disturb, or rather tends to the disturbance of] the public order established by the law.
Liberty of publication with regard to opinions, under certain exceptions, is a liberty which it would be highly proper and fit to establish, but which would receive but a very precarious establishment from an article thus worded. Disturb the public order?—what does that mean? Louis XIV. need not have hesitated about receiving an article thus worded into his code. The public order of things in this behalf, was an order in virtue of which the exercise of every religion but the Catholic, according to his edition of it, was proscribed. A law is enacted, forbidding men to express a particular opinion, or set of opinions, relative to a particular point in religion: forbidding men to express any of those opinions, in the expression of which the Lutheran doctrine, for example, or the Calvinistic doctrine, or the Church of England doctrine consists:—in a prohibition to this effect, consists the public order established by the law. Spite of this, a man manifests an opinion of the number of those which thus stand prohibited as belonging to the religion thus proscribed. The act by which this opinion is manifested, is it not an act of disturbance with relation to the public order thus established? Extraordinary indeed must be the assurance of him who could take upon him to answer in the negative.
Thus nugatory, thus flimsy, is this buckler of rights and liberties, in one of the few instances in which any attempt is made to apply it to a good purpose.
What should it have done, then? To this question an answer is scarcely within the province of this paper: the proposition with which I set out is, not that the Declaration of Rights should have been worded differently, but that nothing under any such name, or with any such design, should have been attempted.
A word or two, however, may be given as a work of supererogation:—that opinions of all sorts might be manifested without fear of punishment; that no publication should be deemed to subject a man to punishment on account of any opinions it may be found to contain, considered as mere opinions; but at the same time, that the plea of manifesting religious opinions, or the practising certain acts supposed to be enjoined or recommended in virtue of certain religious opinions as proper or necessary to be practised, should not operate as a justification for either exercising, or prompting men to exercise, any act which the legislature, without any view or reference to religion, has already thought fit, or may hereafter think fit, to insert into the catalogue of prohibited acts or offences.
To instance two species of delinquency,—one of the most serious, the other of the slightest nature—acts tending to the violent subversion of the government by force—acts tending to the obstruction of the passage in the streets:—An opinion that has been supposed by some to belong to the Christian religion, is, that every form of government but the monarchical is unlawful: an opinion that has been supposed by some to belong to the Christian religion—by some at least of those that adhere to that branch of the Christian religion which is termed the Roman Catholic—is, that it is a duty, or at least a merit, to join in processions of a certain description, to be performed on certain occasions.
What, then, is the true sense of the clause in question, in relation to these two cases? What ought to be the conduct of a government that is neither monarchical nor Catholic, with reference to the respective manifestation of these two opinions?
First, as to the opinion relative to the unlawfulness of a government not monarchical. The falsity or erroneousness which the members of such a government could not but attribute in their own minds to such an opinion, is a consideration which, according to the spirit and intent of the provision in question, would not be sufficient to authorize their using penal or other coercive measures for the purpose of preventing the manifestation of them. At the same time, should such manifestation either have already had the effect of engaging individuals in any attempt to effect a violent subversion of the government by force, or appear to have produced a near probability of any such attempt—in such case, the engagement to permit the free manifestation of opinions in general, and of religious opinions in particular, is not to be understood to preclude the government from restraining the manifestation of the opinion in question, in every such way as it may deem likely to promote or facilitate any such attempt.
Again, as to the opinion relative to the meritoriousness of certain processions. By the principal part of the provision, government stands precluded from prohibiting publications manifesting an opinion in favour of the obligatoriness or meritoriousness of such processions. By the spirit of the same engagement, they stand precluded from prohibiting the performance of such processions, unless a persuasion of a political inconvenience as resulting from such practice—a persuasion not grounded on any notions of their unlawfulness in a religious view—should come to be entertained: as if, for example, the multitude of the persons joining in the procession, or the crowd of persons flocking to observe them, should fill up the streets to such a degree, or for such a length of time, and at intervals recurring with such frequency, as to be productive of such a degree of obstruction to the free use of the streets for the purposes of business, as in the eye of government should constitute a body of inconvenience worth encountering by a prohibitive law.
It would be a violation of the spirit of this part of the engagement, if the government,—not by reason of any view it entertained of the political inconveniences of these processions (for example, as above,) but for the purpose of giving an ascendency to religious opinions of an opposite nature (determined, for example, by a Protestant antipathy to Catholic processions)—were to make use of the real or pretended obstruction to the free use of the streets, as a pretence for prohibiting such processions.
These examples, while they serve to illustrate the ground and degree and limits of the liberty which it may seem proper, on the score of public tranquillity and peace, to leave to the manifestation of opinions of a religious nature, may serve, at the same time, to render apparent the absurdity and perilousness of every attempt on the part of the government for the time being, to tie up the hands of succeeding governments in relation to this or any other spot in the field of legislation. Observe how nice, and incapable of being described beforehand by any particular marks, are the lines which mark the limits of right and wrong in this behalf—which separate the useful from the pernicious—the prudent course from the imprudent!—how dependent upon the temper of the times—upon the events and circumstances of the day!—with how fatal a certainty persecution and tyranny on the one hand, or revolt and civil war on the other, may follow from the slightest deviation from propriety in the drawing of such lines!—and what a curse to any country a legislator may be, who, with the purest intentions, should set about settling the business to all eternity by inflexible and adamantine rules, drawn from the sacred and inviolable and imprescriptible rights of man, and the primeval and everlasting laws of nature!
I give the preference, for the purpose of exemplification, to one of those points of all others, in relation to which it would give me pleasure to see liberty established for ever, as it could be established consistently with security and peace. My persuasion is, that there is not a single point with relation to which it can answer any good purpose to attempt to tie the hands of future legislators; and so, that as there is not a single point, not even of my own choosing, in relation to which I would endeavour to give any such perpetuity to a regulation even of my own framing, it is still less to say—strong as it may appear to say—that were it to depend upon me, I would sooner, were the power of sanctioning in my hands, give my sanction to a body of laws framed by any one else, how bad soever it might appear to me, free from any such perpetuating clause, than a body of laws of my own framing, how well soever I might be satisfied with it, if it must be incumbered with such a clause.
The free examination of thoughts and opinions is one of the most precious rights of man: every citizen may therefore speak, write, and print freely, provided always that he shall be answerable for the abuse of that liberty in the cases determined by the law.
The logic of this composition is altogether of a piece with its policy. When you meet with a therefore—when you meet with a consequence announced as drawn from the proposition immediately preceding it, assure yourself that, whether the propositions themselves, as propositions, are true or false—as ordinances, reasonable or unreasonable, expedient or inexpedient—that the consequent is either in contradiction with the antecedent, or has nothing at all to do with it.
The liberty of communicating opinions is one branch of liberty; and liberty is one of the four natural rights of man, over which human ordinances have no power. There are two ways in which liberty may be violated: by physical or bodily coercion, and by moral coercion or demonstration of punishment;—the one applied before the time for exercising the liberty—the other to be applied after it, in the shape of punishment, in the event or its not producing its intended effect in the shape of prohibition.
What is the boon in favour of the branch of liberty here in question, granted by this article? It saves it from succeeding legislators in one shape—it leaves it at their mercy in the other. Will it be said, that what it leaves exposed to punishment is only the abuse of liberty? Be it so. What then? Is there less of liberty in the abuse of liberty than in the use of it? Does a man exercise less liberty when he makes use of the property of another, than when he confines himself to his own? Then are liberty and confinement the same thing—synonymous and interchangeable terms.
What is the abuse of liberty? It is that exercise of liberty, be it what it may, which a man who bestows that name on it does not approve of. Every abuse of this branch of liberty is left exposed to punishment; and it is left to future legislators to determine what shall be regarded as an abuse of it. What is the security worth, which is thus given to the individual as against the encroachments of government? What does the barrier pretended to be set up against government amount to? It is a barrier which government is expressly called upon to set up where it pleases. Let me not be mistaken:—what I blame these constitution-makers for, is, not the having omitted to tie the hands of their successors tight enough, but the suffering themselves to entertain a conceit so mischievous and so foolish as that of tying them up at all; and in particular for supposing, that were they weak enough to suffer themselves to be so shackled, a phrase or two of so loose a texture could be capable of doing the business to any purpose.
The general notion in regard to offences—a notion so general as to have become proverbial, and even trivial—is, that preventionis better than punishment. Here prevention is abjured and punishment embraced in preference. Once more, let me not be mistaken. In the particular case of the liberty of communicating opinions, there most certainly are reasons, for giving up the object of prevention, and in the choice of the means of repression, confining the repressive operations of the legislator to the application of punishment, which do not apply to other offences. A word or two to this purpose, and to justify the seeming inconsistency, would have been rather more instructive than most of those other instructions of which the authors of this code have been so liberal.
Not only is the consequent of these two propositions, clogged with the proviso at the tail of it, repugnant to the antecedent, but in itself it is much more extensive—it extends a vast way beyond what is intended as a covering for it. The free communication, of thoughts, and of opinions, I presume are here put as synonymous terms: the free communication of opinions, says the antecedent, is one of the most valuable of the rights of man—of those unalienable rights of man. What says the consequent of it? Not only that a man may communicate opinions without the possibility of being prevented, but that he is to be at liberty to communicate what he will, without the possibility of being prevented, and in any manner,—false allegations in matters of fact, and known to be such—for true, false allegations to the prejudice of the reputation of individuals—in a word, slander of all sorts—and that in all manner of ways,—by speech, by writing, and even in the way of printing, without the possibility of stopping his mouth, destroying his manuscript, or stopping the press.
What then? Does it follow, that because a man ought to be left at liberty to publish opinions of all sorts, subject not to previous prevention, but only to subsequent punishment, that therefore he ought to be left at equal liberty to publish allegations of all sorts, false as well as true—allegations known by him to be false, as well as allegations believed by him to be true—attacks which he knows to be false, upon the reputation of individuals, as well as those which he believes to be true? Far is it from my meaning to contend in this place, especially in a parenthesis, much more to take for granted, that the endurance of even these mischiefs, crying as they are, may not be a less evil than the subjecting the press to a previous censure, under any such restrictions on the exercise of that power as could be devised—at any rate, under any such as have ever hitherto been proposed. All I mean to say is, that whether a man ought or ought not to be left at liberty to publish private slander without the application of anything but subsequent punishment to stop the progress of it, it does not follow that it ought to be left in his power to publish such allegations, because it ought to be left in like manner in his power to publish whatever can come under the denomination of opinions. As for the word thoughts, which is put in a line with the word opinions, as if thoughts were something different from opinions, I shall lay it out of the question altogether, till I can find somebody who will undertake to satisfy me, in the first place, that it was meant to denote something in addition to opinions, and in the next place, that that something was meant to include allegations, true and false, in relation to matters of fact.
Is it, or is it not, a matter to be wished, in France for example, that measures were taken by competent authority—whatever authority be deemed competent, to draw the line between the protection due to the useful liberty, and the restraint proper for the pernicious licence of the press? What a precious task would the legislator find set for him by this declaration of sacred, inviolable, and imprescriptible rights! The protectors of reputation on one side of him: the idolators of liberty on the other: each with the rights of man in his mouth, and the dagger of assassination in his hand, ready to punish the smallest departure from the course marked out in his heated imagination for this unbending line.
The guarantee of the rights of the man and of the citizen necessitates a public force: this force is therefore instituted for the advantage of all, and not for the particular utility [advantage] of those to whom it is intrusted.
The general purpose of the whole performance taken together, being mischievous and pestilential, this article has thus much to recommend it, that it is nothing to the purpose—no declaration of inviolable rights—no invitation to insurrection. As it stands, it is a mere effusion of imbecility—a specimen of confused conception and false reasoning. With a little alteration, it might be improved into a common-place memento, as stale, and consequently as useless, as it is unexceptionable: to wit, that the employment given to the public force, maintained as it is at the expense of the public, ought to have for its object the general advantage of the whole body of the public taken together, not the exclusive private advantage of particular individuals.
This article is composed of two distinct propositions. In the first, after throwing out of it as so much surplusage, the obscure part about the guarantee or maintenance of the rights of the man and the citizen, there will remain a clear and intelligible part, a declaration of opinion asserting the necessity of a public force: to this, hooked on in the shape of an inference, of a logical conclusion, a vague assertion of an historical matter of fact, which may have been true in one place, and false in another—the truth of which is incapable of being ascertained in any instance—an operation, the labour of which may be spared with the less loss, from its being nothing to the purpose.
This matter of fact is neither more nor less than the main end in view which happened to be present in the minds of the several persons to whose co-operation the public force was respectively indebted for its institution and establishment in the several political communities in the world, and which officiated in the character of a final cause in every such instance. This final cause, the penner of the article—such is his candour and good opinion of mankind—pronounces without hesitation or exception to have been the pure view of the greatest good of the whole community—public spirit in its purest form, and in its most extensive application. Neither Clovis, Pepin, nor Hugh Capet, had the smallest preferable regard to the particular advantage of themselves or their favourites, when they laid the foundations of the public force in France, nor any other consideration in view than what might be most conducive to the joint and equal advantage of the Franks, Gauls, and Gallo-Romans upon the whole. As little partiality existed in the breast of William the Conqueror, in favour of himself, or any of his Normans, on the occasion of his sharing out England among those Normans, and dividing it into knight’s fees: freemen and villains, barons and yeomen, Normans, Danes, and English, collectively and individually, occupying one equal place in his affections, and engaging one equal portion of his solicitude.
According to this construction, the inference, it must be confessed, may be just enough. All you have to suppose is, that the greatest good of the whole community taken together was in every instance the ruling object of consideration in the breast of the institutors of the public force: the pursuit of that greatest good, in a certain shape not perfectly explained, being the ruling object with these worthy men. As they did institute this public force, it seems to follow pretty accurately that the attainment of that general advantage was the end in view, in each instance, of its being instituted.
Should the two propositions, the antecedent and the consequent, in this their genuine signification, appear too silly to be endurable, the way to defend it may be to acknowledge that the man who penned it knew no difference between a declaration of what he supposed was or is the state of things with regard to this or that subject, and a declaration of what he conceived ought to have been, or ought to be that state of things; and this being the case, it may be supposed that in saying such was the end in view upon the several occasions in question, what he meant was, that such it ought to have been. If this were really his meaning, the propositions are such, both of them, as we may venture to accede to without much danger. A public force is necessary, we may say; and the public is the party for whose advantage that force ought to be employed. The propositions themselves are both of them such, that against neither of them, surely, can any objection be produced: as to the inference by which they are strung together, if the application made of it be not exactly of the clearest nature, you have only to throw it out, and everything is as it should be, and the whole article is rendered unexceptionable.
For the maintenance of the public force, and for the expenses of administration, a common contribution is indispensable: it ought to be equally divided among all the citizens in proportion to their faculties.
In the first part of this article two propositions are contained. One is, that a common contribution is indispensable for the maintenance of the public force. If by this be meant, that raising money upon all, for the maintenance of those whose individual forces are employed in the composition of the public force, is proper, I see no reason to dispute it: if the meaning be, that this is the only possible way of maintaining a public force, it is not true. Under the feudal system, those whose individual forces composed the public force, were maintained, not at the expense of the community at large, but at their own expense.
The other proposition is, that a common contribution is indispensable for the expenses (meaning the other expenses) of administration. Indispensable? Yes, certainly: so far as these other branches of administration cannot be carried on without expense—if they are carried on, the defraying of that expense is indispensable. But are these nameless branches of administration necessary? for if they are not, neither is a common contribution for the defraying of the expense. Are they then necessary?—these unnamed and unindicated branches of administration, which in this mysterious manner are put down on the list of necessary ones, is their title to be there a just one? This is a question to which it is impossible to find an answer: yet, till an answer be found for it, it is impossible to find a sufficient warrant for admitting this proposition to be true. From this proposition, as the matter stands upon the face of it, it should seem that one of these sacred and inviolable and imprescriptible rights of a man consists in the obligation of contributing to an unknown mass of expense employed upon objects not ascertained.
Proposition 3. It (the common contribution in question) ought to be equally divided amongst all the citizens, in proportion to their faculties.
Partly contradiction—a sequel to, or rather repetition of preceding contradictions: partly tyranny under the mask of justice.
By the first article, human creatures are, and are to be, all of them, on a footing of equality in respect to all sorts of rights. By the second article, property is of the number of these rights. By the two taken together, all men are and are to be upon an equal footing in respect of property: in other words, all the property in the nation is and is to be divided into equal portions. At the same time, as to the matter of fact, what is certain is, that at the time of passing this article, no such equality existed, nor were any measures so much as taken for bringing it into existence. This being the case, which of the two states of things is it that this article supposes?—the old and really existing inequality, or the new and imaginary equality? In the first case, the concluding or explanatory clause is in contradiction to the principal one: in the other case, it is tautological and superfluous. In the first case, the explanatory clause is in contradiction to the principal one; for, from unequal fortunes if you take equal contributions, the contributions are not proportional. If from a fortune of one hundred pounds you take a contribution of ten pounds, and from a fortune of two hundred pounds, ten pounds and no more, the proportion is not a tenth in both cases, but a tenth in the one, and only a twentieth in the other.
In the second case—that is, if equality in point of property be the state of things supposed—then, indeed, equality of contribution will be consistent with the plan of equalization, as well as consonant to justice and utility; but then the explanatory clause, in proportion to their faculties, will be tautologous and superfluous, and not only tautologous and superfluous, but ambiguous and perplexing: for proportionality in point of contribution is not consistent with equality in point of contribution, on more than one out of an infinity of suppositions, viz. that of equality in point of fortune: nor, in point of fact, was the one consistent with the other in the only state of things which was in existence at the time.
Men’s faculties too! What does that word mean? This, if the state of things represented as actually existing, as well as always having existed, and for ever about to exist, had been anything more than a sick man’s dream, would have required to be determined, had it been at all a matter of concern to prevent men from cutting one another’s throats, and must have been determined before this theory could have been reduced to practice. In the valuation of men’s faculties, is it meant that their possessions only, or that their respective wants and exigencies, as well as their ways and means, should be taken into account? In the latter case, what endless labour! in the former case, what injustice!
In either case, what tyranny! An inquisition into every man’s exigencies and means,—an inquisition which, to be commensurate to its object, must be perpetual,—an inquisition into every man’s circumstances, one of the foundation stones in this plan of liberty!
To a reader who should put an English construction upon this plan of taxation—(masked by the delusive term contribution, as if voluntary contributions could be a practicable substitute for compulsory,)—to a reader who should collect from the state of things in England the construction to be put upon this plan of taxation, the system here in view would not show itself in half its blackness. To an English reader it might naturally enough appear, that all that was meant was, that the weight of taxation should bear in a loose sense as equally, or rather as equitably—that is, as proportionably, as it could conveniently be made to do;—that taxes, a word which would lead him directly and almost exclusively to taxes upon consumption, should be imposed—for example, upon superfluities in preference to the necessaries of life. Wide indeed would be his mistake. What he little would suspect is, that taxes on consumption, the only taxes from which arise the contributions that in plain truth, and not in a sophistical sense, are voluntary on the part of the contributor, are carefully weeded out of the book of French finance. Deluded by the term indirect, imposed as a sort of term of proscriptiom upon them by a set of muddy-headed metaphysicians—little does he think that the favourite species of taxation in that country of perfect liberty, is a species of imposition and inquisition, which converts every man who has any property into a criminal in the first instance, which sends the tax-gatherer into every nook and corner of a man’s house, which examines every man upon interrogatories, and of which a double or treble tithe would be an improved and mollified modification.
All the citizens have the right to ascertain by themselves, or by their representatives, the necessity of the public contribution—to give their free consent to it—to follow up the aplication of it, and to determine the quantity of it, the objects on which it shall be levied, the mode of levying it and getting it in, and the duration of it.
Supposing the author of this article an enemy to the state, and his object to disturb the course of public business, and set the individual members of the state together by the ears, nothing could have been more artfully or more happily adapted to the purpose. Supposing him a friend, and his object to administer either useful instruction or salutary controul, nothing more silly or childish can be imagined.
In the first place, who is spoken of—who are meant, by all the citizens? Does it mean all, collectively acting in a body, or every citizen, every individual, that is, any one that pleases? This right of mine,—is it a right which I may exercise by myself at any time whenever it happens to suit me, and without the concurrence of anybody else, or which I can only exercise if and when I can get everybody else, or at least the major part of everybody else, to join me in the exercise of it? The difference in a practical view is enormous; but the penners of this declaration, by whom terms expressive of aggregation, and terms expressive of separation, are used to all appearance promiscuously, show no symptoms of their being aware of the smallest difference. If in conjunction with everybody else, I have it already by the sixth article. Laws imposing contributions are laws: I have already, then, a right of concurring in the formation of all laws whatever: what do I get by acquiring the right of concurring in the formation of the particular class of laws which are employed in imposing contributions? As a specification, as an application of the general provision to the particular subject, it might be very well. But it is not given as a specification, but as a distinct article. What marks the distinction the more forcibly, is the jumbling in this instance, and in this instance only, acts of another nature with acts of legislation—the right of examining into the necessity of the operation, and of following up such examination with the right of performing the operation—the right of observing and commenting on the manner in which the powers of government are exercised, with the right of exercising them.
Make what you will of it, what a pretty contrivance for settling matters, and putting an end to doubts and disagreements! This, whatever it is, is one of the things which I am told I have a right to do, that is, either by myself, or by certain persons alluded to under the denomination of my representatives,—either in one way or the other; but in which? This is exactly what I want to know, and this is exactly what I am not told.—Can I do it by myself, or only by my representatives; that is to say, in the latter case by a deputy in whose election I have perhaps had a vote, perhaps not—perhaps given the vote, perhaps not—perhaps voted for, perhaps voted against; and who, whether I voted for or against him, will not do either this, or any one other act whatsoever, at my desire? Have I, an individual—have I in my individual capacity—a right when I please, to ascertain, that is, to examine into the necessity of every contribution established or proposed to be established? Then have I a right to go whenever I please, to any of the officers in the department of the revenue,—to take all the people I find under my command,—to put all the business of the office to a stand,—to make them answer all my questions,—to make them furnish me with as many papers or other documents as I desire to have?—You, my next neighbour, who are as much a citizen as I am, have as much of this right as I have. It is your pleasure to take this office under your command, to the same purpose at the same time. It is my pleasure the people should do what I bid them, and not what you bid them; it is your pleasure they should do what you bid them, and not what I bid them:—which of us is to have his pleasure? The answer is,—he who has the strongest lungs, or if that will not do, he who has the strongest hand. To give everything to the strongest hand is the natural result of all the tutoring, and all the checking and controuling of which this lecture on the principles of government is so liberal: but this is the exact result of that state of things which would have place, supposing there were no government at all, nor any such attempt as this to destroy it, under the notion of directing it.
The right of giving consent to a tax,—the right of giving consent to a measure,—is a curious mode of expression for signifying assent or dissent as a man thinks proper? It is surprising that a man professing and pretending to fix words—to fix ideas—to fix laws—to fix everything—and to fix them to all eternity, should fix upon such an expression, and should say the right of giving consent, instead of the right of giving a vote—the right of giving consent, and consent only, instead of the right of giving consent or dissent, or neither, as a man thinks proper.
Society has a right to demand from every agent of the public, an account of his administration.
Society? What is the meaning—what is the object here? Different, where it ought to be identical—identical, where it ought to be different—ever inexplicit—ever indeterminate, using as interconvertible, expressions which, for the purpose of precision and right understanding, require the most carefully to be set and kept in opposition: such is the language from the beginning of this composition to the end!
Is it, that superiors in office have a right to demand such an account of their subordinates? Not to possess such a right, would be not to be a superior:—not to be subject to the exercise of it, would be not to be a subordinate. In this sense, the proposition is perfectly harmless, but equally nugatory. Is it, that all men not in office have this right with respect to all men, or every man in office? Then comes the question as before—each in his individual capacity, or only altogether in their collective? If in their collective, whatever this article, or any other article drawn up in the same view, does or can do for them, amounts to nothing: whatever it would have them do, it gives them no facilities for doing it, which they did not possess without it. Whatever it would have them do, if one and all rise for the purpose of doing it, bating what hindrance they may receive from one another, there will be nobody to hinder them. But is there any great likelihood of any such rising ever taking place? and if it were to take place, would there be any great use in it?
If the right be of the number of those which belongs to each and every man in his individual capacity, then comes the old story over again of mutual obstruction, and the obstruction of all business, as before.
The right of demanding an account? What means that, too? The right of simply putting the question, or the right of compelling an answer to it—and such an answer as shall afford to him that puts it, the satisfaction he desires? In the former case, the value of the right will not be great; in the latter case, he who has it, and who, by the supposition, is not in office, will in fact be in office; and, as everybody has it, and is to have it, the result is, that everybody is in office; and those who command all men are under the command of every man.
Instead of meaning stark nonsense, was the article meant after all simply to convey a memento to those who are superiors in office, to keep a good look-out after their subordinates? If this be the case, nothing can be more innocent and unexceptionable. Neither the child that is learning wisdom in his horn-book, nor the old woman who is teaching him, need blush to own it. But what has it to do in a composition, the work of the collected wisdom of the nation, and of which the object is, throughout and exclusively, to declare rights?
Silly or pestilential—such, as usual, is here the alternative. In the shape of advice, a proposition may be instructive or trifling, wholesome or insipid. But be it the one or the other, the instant it is converted, or attempted to be converted, into a law, of which those called legislators are to be the objects, and those not called legislators to be the executors, it becomes all sheer poison, and of the rankest kind.
Every society in which the warranty of rights is not assured, [“la garantie des droits n’est pas assurée,”] nor the separation of powers determined, has no constitution.
Here we have an exhibition: self-conceit inflamed to insanity—legislators turned into turkey-cocks—the less important operation of constitution-making, interrupted for the more important operation of bragging. Had the whole human species, according to the wish of the tyrant, but one neck, it would find in this article a sword designed to sever it.
This constitution,—the blessed constitution, of which this matchless declaration forms the base—the constitution of France—is not only the most admirable constitution in the world, but the only one. That no other country but France has the happiness of possessing the sort of thing, whatever it be, called a constitution, is a meaning sufficiently conveyed. This meaning the article must have, if it have any: for other meaning, most assuredly it has none.
Every society in which the warranty of rights is not assured (toute société dans laquelle la garantie des droits n’est pas assurée,) is, it must be confessed, most rueful nonsense; but if the translation were not exact, it would be unfaithful: and if not nonsensical, it would not be exact.
Do you ask, has the nation I belong to such a thing as a constitution belonging to it? If you want to know, look whether a declaration of rights, word for word the same as this, forms part of its code of laws; for by this article, what is meant to be insinuated, not expressed (since by nonsense nothing is expressed,) is the necessity of having a declaration of rights like this set by authority in the character of an introduction at the head of the collection of its laws.
As to the not absolutely nonsensical, but only very obscure clause, about a society’s having “the separation of powers determined,” it seems to be the result of a confused idea of an intended application of the old maxim, Divide et impera: the governed are to have the governors under their governance, by having them divided among themselves. A still older maxim, and supposing both maxims applied to this one subject, I am inclined to think a truer one, is, that a house divided against itself cannot stand.
Yet on the existence of two perfectly independent and fighting sovereignties, or of three such fighting sovereignties (the supposed state of things in Britain seems here to be the example in view,) the perfection of good government, or at least of whatever approach to good government can subsist without the actual adoption in terminis of a declaration of rights such as this, is supposed to depend. Hence, though Britain have no such thing as a constitution belonging to it at present, yet, if during a period of any length, five or ten years for example, it should ever happen that neither House of Commons nor House of Lords had any confidence in the King’s Ministers, nor any disposition to endure their taking the lead in legislation (the House of Commons being all the while, as we must suppose, peopled by universal suffrage,) possibly in such case, for it were a great deal too much to affirm, Britain might be so far humoured as to be allowed to suppose herself in possession of a sort of thing, which, though of inferior stuff, might pass under the name of a constitution, even without having this declaration of rights to stand at its head.
That Britain possesses at present anything that can bear that name, has by Citizen Paine, following, or leading (I really remember not, nor is it worth remembering,) at any rate agreeing with this declaration of rights, been formally denied.
According to general import, supported by etymology, by the word constitution, something established, something already established, something possessed of stability, something that has given proofs of stability, seems to be implied. What shall we say, if of this most magnificent of all boasts, not merely the simple negative, but the direct converse should be true? and if instead of France being the only country which has a constitution, France should be the only country that has none! Yet if government depend upon obedience—the stability of government upon the permanence of the disposition to obedience, and the permanence of that disposition upon the duration of the habit of obedience—this most assuredly must be the case.
Property being an inviolable and sacred right, no one can be deprived of it, unless it be when public necessity, legally established, evidently requires it [i. e. the sacrifice of it,] and under the condition of a just and previous indemnity.
Here we have the concluding article in this pile of contradictions; it does not mismatch the rest. By the first article, all men are equal in respect of all sorts of rights, and so are to continue for evermore, spite of everything which can be done by laws. By the second article, property is of the number of those rights. By this seventeenth and last article, no man can be deprived of his property—no, not of a single atom of it, without an equal equivalent paid—not when the occasion calls for it, for that would not be soon enough, but beforehand; all men are equal in respect of property, while John has £50,000 a-year, and Peter nothing: all men are to be equal in property, and that for everlasting; at the same time that he who has a thousand times as much as a thousand others put together, is not to be deprived of a single farthing of it, without having first received an exact equivalent.
Nonsense and contradiction apart, the topie touched upon here is one of those questions of detail that requires to be settled, and is capable of being settled, by considerations of utility deducible from quiet and sober investigation, to the satisfaction of sober-minded men; but such considerations are far beneath the attention of these creators of the rights of man.
There are distinctions between species of property which are susceptible, and species of property which are not susceptible, of the value of affection; between losses in relation to which the adequacy of indemnification may be reduced to a certainty, and losses in respect of which it must remain exposed to doubt: there may be cases in which a more than equivalent gain to one individual will warrant the subjecting another individual, with or without compensation, to a loss. All these questions are capable of receiving a solution to the satisfaction of a man who thinks it worth his while to be at the pains of comparing the feelings on one side with the feelings on the other, and to judge of regulations by their effect on the feelings of those whom they concern, instead of pronouncing on them by the random application of declamatory epithets and phrases.
Necessity? What means necessity? Does necessity order the making of new streets, new roads, new bridges, new canals? A nation which has existed for so many ages with the stock of water-roads which it received from Nature,—is any addition to that stock necessary to the continuation of its existence? If not, there is an end to all improvement in all these lines. In all changes there are disadvantages on one side, there are advantages on the other: but what are all the advantages in the world, when set against the sacred and inviolable rights of man derived from the unenacted and unrepealable laws of Nature?
On the subject of the fundamental principles of government, we have seen what execrable trash the choicest talents of the French nation have produced.
On the subject of chemistry, Europe has beheld with admiration, and adopted with unanimity and gratitude, the systematic views of the same nation, supported as they were by a series of decisive experiments and conclusive reasonings.
Chemistry has commonly been reckoned, and not altogether without reason, among the most abstruse branches of science. In chemistry, we see how high they have soared above the sublimest knowledge of past times; in legislation, how deep they have sunk below the profoundest ignorance:—how much inferior has the maturest design that could be furnished by the united powers of the whole nation proved, in comparison of the wisdom and felicity of the chance-medley of the British Constitution.
Comparatively speaking, a select few applied themselves to the cultivation of chemistry—almost an infinity, in comparison, have applied themselves to the science of legislation.
In the instance of chemistry, the study is acknowledged to come within the province of science: the science is acknowledged to be an abstruse and difficult one, and to require a long course of study on the part of those who have had the previous advantage of a liberal education; whilst the cultivation of it, in such manner as to make improvements in it, requires that a man should make it the great business of his life; and those who have made these improvements have thus applied themselves.
In chemistry there is no room for passion to step in and to confound the understanding—to lead men into error, and to shut their eyes against knowledge: in legislation, the circumstances are opposite, and vastly different.
What, then, shall we say of that system of government, of which the professed object is to call upon the untaught and unlettered multitude (whose existence depends upon their devoting their whole time to the acquisition of the means of supporting it,) to occupy themselves without ceasing upon all questions of government (legislation and administration included) without exception—important and trivial,—the most general and the most particular, but more especially upon the most important and most general—that is, in other words, the most scientific—those that require the greatest measures of science to qualify a man for deciding upon, and in respect of which any want of science and skill are liable to be attended with the most fatal consequences?
What should we have said, if, with a view of collecting the surest grounds for the decision of any of the great questions of chemistry, the French Academy of Sciences (if its members had remained unmurdered) had referred such questions to the Primary Assemblies?
If a collection of general propositions, put together with the design that seems to have given birth to this performance—propositions of the most general and extensive import, embracing the whole field of legislation—were capable of being so worded and put together as to be of use, it could only be on the condition of their being deduced in the way of abridgment from an already formed and existing assemblage of less general propositions, constituting the tenor of the body of the laws. But for these more general propositions to have been abstracted from that body of particular ones, that body must have been already in existence: the general and introductory part, though placed first, must have been constructed last;—though first in the order of communication, it should have been last in the order of composition. For the framing of the propositions which were to be included, time, knowledge, genius, temper, patience, everything was wanting. Yet the system of propositions which were to include them, it was determined to have at any rate. Of time, a small quantity indeed might be made to serve, upon the single and very simple condition of not bestowing a single thought upon the propositions which they were to include: and as to knowledge, genius, temper, and patience, the place of all these trivial requisites was abundantly supplied by effrontery and self-conceit. The business, instead of being performed in the way of abridgment, was performed in the way of anticipation—by a loose conjecture of what the particular propositions in question, were they to be found, might amount to.
What I mean to attack is, not the subject or citizen of this or that country—not this or that citizen—not citizen Sieyes or citizen anybody else, but all anti-legal rights of man, all declarations of such rights. What I mean to attack is, not the execution of such a design in this or that instance, but the design itself.
It is not that they have failed in their execution of the design by using the same word promiscuously in two or three senses—contradictory and incompatible senses—but in undertaking to execute a design which could not be executed at all without this abuse of words. Let a man distinguish the senses—let him allot, and allot invariably a separate word for each, and he will find it impossible to make up any such declaration at all, without running into such nonsense as must stop the hand even of the maddest of the mad.
Ex uno, disce omnes—from this declaration of rights, learn what all other declarations of rights—of rights asserted as against government in general, must ever be,—the rights of anarchy—the order of chaos.
It is right I should continue to possess the coat I have upon my back, and so on with regard to everything else I look upon as my property, at least till I choose to part with it.
It is right I should be at liberty to do as I please—it would be better if I might be permitted to add, whether other people were pleased with what it pleased me to do or not. But as that is hopeless, I must be content with such a portion of liberty, though it is the least I can be content with, as consists in the liberty of doing as I please, subject to the exception of not doing harm to other people.
It is right I should be secure against all sorts of harm.
It is right I should be upon a par with everybody else—upon a par at least; and if I can contrive to get a peep over other people’s heads, where will be the harm in it?
But if all this is right now, at what time was it ever otherwise? It is now naturally right, and at what future time will it be otherwise? It is then unalterably right for everlasting.
As it is right I should possess all these blessings, I have a right to all of them.
But if I have a right to the coat on my back, I have a right to knock any man down who attempts to take it from me.
For the same reason, if I have a right to be secure against all sorts of harm, I have a right to knock any man down who attempts to harm me.
For the same reason, if I have a right to do whatever I please, subject only to the exception of not doing harm to other people, it follows that, subject only to that exception, I have a right to knock any man down who attempts to prevent my doing anything that I please to do.
For the same reason, if I have a right to be upon a par with everybody else in every respect, it follows, that should any man take upon him to raise his house higher than mine,—rather than it should continue so, I have a right to pull it down about his ears, and to knock him down if he attempt to hinder me.
Thus easy, thus natural, under the guidance of the selfish and anti-social passions, thus insensible is the transition from the language of utility and peace to the language of mischief. Transition, did I say?—what transition?—from right to right? The propositions are identical—there is no transition in the case. Certainly, as far as words go, scarcely any: no more than if you were to trust your horse with a man for a week or so, and he were to return it blind and lame:—it was your horse you trusted to him—it is your horse you have received again:—what you had trusted to him, you have received.
It is in England, rather than in France, that the discovery of the rights of man ought naturally to have taken its rise: it is we—we English, that have the better right to it. It is in the English language that the transition is more natural, than perhaps in most others: at any rate, more so than in the French. It is in English, and not in French, that we may change the sense without changing the word, and, like Don Quixote on the enchanted horse, travel as far as the moon, and farther, without ever getting off the saddle. One and the same word, right—right, that most enchanting of words—is sufficient for operating the fascination. The word is ours,—that magic word, which, by its single unassisted powers, completes the fascination. In its adjective shape, it is as innocent as a dove: it breathes nothing but morality and peace. It is in this shape that, passing in at the heart, it gets possession of the understanding:—it then assumes its substantive shape, and joining itself to a band of suitable associates, sets up the banner of insurrection, anarchy, and lawless violence.
It is right that men should be as near upon a par with one another in every respect as they can be made, consistently with general security: here we have it in its adjective form, synonymous with desirable, proper, becoming, consonant to general utility, and the like. I have a right to put myself upon a par with everybody in every respect: here we have it in its substantive sense, forming with the other words a phrase equivalent to this,—wherever I find a man who will not let me put myself on a par with him in every respect, it is right, and proper, and becoming, that I should knock him down, if I have a mind to do so, and if that will not do, knock him on the head, and so forth.
The French language is fortunate enough not to possess this mischievous abundance. But a Frenchman will not be kept back from his purpose by a want of words: the want of an adjective composed of the same letters as the substantive right, is no loss to him. Is, has been, ought to be, shall be, can,—all are put for one another—all are pressed into the service—all made to answer the same purposes. By this inebriating compound, we have seen all the elements of the understanding confounded, every fibre of the heart inflamed, the lips prepared for every folly, and the hand for every crime.
Our right to this precious discovery, such as it is, of the rights of man, must, I repeat it, have been prior to that of the French. It has been seen how peculiarly rich we are in materials for making it. Right, the substantive right, is the child of law: from real laws come real rights; but from imaginary laws, from laws of nature, fancied and invented by poets, rhetoricians, and dealers in moral and intellectual poisons, come imaginary rights, a bastard brood of monsters, “gorgons and chimæras dire.” And thus it is, that from legal rights, the offspring of law, and friends of peace, come anti-legal rights, the mortal enemies of law, the subverters of government, and the assassins of security.
Will this antidote to French poisons have its effect?—will this preservative for the understanding and the heart against the fascination of sounds, find lips to take it? This, in point of speedy or immediate efficacy at least, is almost too much to hope for. Alas! how dependent are opinions upon sound! Who shall break the chains which bind them together? By what force shall the associations between words and ideas be dissolved—associations coeval with the cradle—associations to which every book and every conversation give increased strength? By what authority shall this original vice in the structure of language be corrected? How shall a word which has taken root in the vitals of a language be expelled? By what means shall a word in continual use be deprived of half its signification? The language of plain strong sense is difficult to learn; the language of smooth nonsense is easy and familiar. The one requires a force of attention capable of stemming the tide of usage and example; the other requires nothing but to swim with it.
It is for education to do what can be done; and in education is, though unhappily the slowest, the surest as well as earliest resource. The recognition of the nothingness of the laws of nature and the rights of man that have been grounded on them, is a branch of knowledge of as much importance to an Englishman, though a negative one, as the most perfect acquaintance that can be formed with the existing laws of England.
It must be so:—Shakespeare, whose plays were filling English hearts with rapture, while the drama of France was not superior to that of Caffraria,—Shakespeare, who had a key to all the passions and all the stores of language, could never have let slip an instrument of delusion of such superior texture. No: it is not possible that the rights of man—the natural, pre-adamitical, ante-legal, and anti-legal rights of man—should have been unknown to, have been unemployed by Shakespeare. How could the Macbeths, the Jaffiers, the Iagos, do without them? They present a cloak for every conspiracy—they hold out a mask for every crime;—they are every villain’s armoury—every spendthrift’s treasury.
But if the English were the first to bring the rights of man into the closet from the stage, it is to the stage and the closet that they have confined them. It was reserved for France—for France in her days of degradation and degeneration—in those days, in comparison of which the worst of her days of fancied tyranny were halcyon ones—to turn debates into tragedies, and the senate into a stage.
The mask is now taken off, and the anarchist may be known by the language which he uses.
He will be found asserting rights, and acknowledging them at the same time not to be recognised by government. Using, instead of ought and ought not, the words is or is not—can or can not.
In former times, in the times of Grotius and Puffendorf, these expressions were little more than improprieties in language, prejudicial to the growth of knowledge: at present, since the French Declaration of Rights has adopted them, and the French Revolution displayed their import by a practical comment,—the use of them is already a moral crime, and not undeserving of being constituted a legal crime, as hostile to the public peace.
DECLARATION OF THE RIGHTS AND DUTIES OF THE MAN AND THE CITIZEN,
The rights of man in society are liberty, equality, security, and property.
Comparing this declaration with its predecessor, we may observe, that it opens with a specimen of legislative shuffling: on the one hand, a sense of the absurdity of its predecessor, and the mischief that had been the fruit of it: on the other hand, a determination not to acknowledge these things.
The sorts of rights which this second declaration, as well as the first, sets out with the intention of declaring, are of two sorts: those of the man, and those of the citizen: those which it immediately proceeds to declare are neither the one nor the other, but something between both,—the Rights of Man in Society.
The difference is not a mere affair of words. The rights declared by the first declaration, were declared to be natural, inalienable, and imprescriptible—such rights, against which all laws that should at any time presume to strike, would become ipso facto void. If no distinction were to be recognised between the rights of the man and the rights of the citizen, one of the expressions must be acknowledged to be unmeaning, and the insertion of it a dangerous impertinence: if a distinction between them be to be recognised, it must be this, that the rights of the man—the rights of the man as existing in a state antecedent to that of political society—antecedent to the state of citizenship—are the only one of the sorts to which the character of inalienable and imprescriptible can be understood to belong:—those of the citizen, growing out of the laws by which the state of citizenship is constituted, are the produce of the law itself, and may be conceived to remain at the disposal of the law which gave them birth, and may continue to depend for their existence on the law from which they received it.
This second declaration,—leaving the doubt in its full force, whether there are or are not a certain description of rights over which laws have no power—a description of rights which, as we have seen, covers the whole field of legislation, shutting the door against everything that can present itself under the name of law?—consequently, whether such laws as they are about to create are or are not capable of possessing any binding force,—varnishes over the ambiguity by a subterfuge. Obliterating the distinction so carefully made, and so recently recognised between the man and the citizen, at the next step they produce, instead of the two, a sort of neutral double man, who is neither one nor the other, or else both in one.
Comparing the list of rights, whoever they belong to, whether to the man or the citizen, or the man in society, we shall find, that between the year 1791 and the year 1795, inalienable as they are, they have undergone a change. Indeed, for a set of inalienable rights they must be acknowledged to have been rather unstable. At the time of the passing the first article of the declaration of 1791, there were but two of them—liberty and equality. By the time the second article of that same declaration was framed, three new ones had started up in addition to liberty; viz. property, security, and resistance to oppression: total, four sorts of rights—not five; for in the same interval an accident had happened to equality, and somehow or other it was not to be found. In the interval between 1791 and 1795, it has been found again: accordingly, in the list of 1795, we may observe equality occupying a station elevated above everything but liberty, with security and property lying at its feet. Looking for resistance against oppression, we shall find it kicked out of doors; but, like the images of the two illustrious Romans mentioned by Tacitus, not the less regarded for not being seen. To account for this exclusion, we must recollect, that between 1791 and 1795—in short, from the moment of his naturalization (for it was in America that he had his birth) Citizen Resistance-against-oppression had been playing strange tricks: he had been constantly flying in the face of the powers in being, whatever they were—he had rendered himself a perfect nuisance, and so great a nuisance, that it was high time for him to be sent to Coventry. Thither he has accordingly been sent, though ready to present himself at the call of patriotism, whenever a king is to be assassinated, or a riot to be kicked up. By the sagacity of the constitutionalist of 1795, he had been at length discovered to be a most dangerous enemy to security, after a four years’ experience of his activity in that line. Two years before his naturalization in France, I had denounced him as such in a book* which found its way into the hands of Condorcet and others; but my denunciation was not heard.
As to the rest, the nonsensicalness and mischievousness of this article has been pointed out in the observations on the corresponding article of the declaration of 1791.
Liberty consists in the power of doing that which hurts not the rights of others.
The same as the commencement of Article IV. in the Declaration of 1791, except as to the insertion of the words—the rights.
Sentence 1. Equality consists in this—that the law is the same for all, whether it protect or whether it punish.
Sentence 2. Equality admits not any distinction of births—any hereditary succession of powers.
In article 6 of the Declaration of 1791, we saw this given in the character of a maxim; in which character the propriety of it has been discussed: the maxim is now turned into a definition of equality. This is equality, certainly, as far as it goes; but is it to be understood as stopping here, or is it to go any further, and how much further? These questions are not answered, apparently because the declaration-makers were afraid to answer them. Thus much is certain, there is nothing in this declaration of rights to stop it: therefore, on it must go in its own course; which course can never have found its end, till it has laid everything smack smooth, not leaving any one stone in the whole fabric of property upon another.*
That equality should leave no hereditary succession of powers, is natural and consistent enough. But how does it contrive to leave any powers at all? Where is the equality between him who has powers, and him who has none? The exclusion of the hereditary succession of powers excepted, it turns out, then, that people are not the more upon a par for the possession of this right; and that, in short, to speak correctly, equality and inequality are the same things.
No distinction of births—no distinction in point of birth? How is that managed? Are all the men in France born of the same father and mother? Will democratic omnipotence prevent the Montmorencies from being descended from a known line of ancestors, beginning under the Capets? or, I forget what other family, from a line beginning under Clovis? What they probably meant to say is, that no distinction in point of rights should be suffered to depend on any distinction in point of birth: but as epigrams are at least as necessary in a French book of legislation as laws, the paradoxical turn of expression was preferred, as being the most natural.
Security results from the concurrence of all in securing the rights of each.
An epigram upon security—a definition imitated from le malade imaginaire. The property which opium has of laying men to sleep, results from its soporific quality. Now, citizen, if you do not know what security is, you deserve to have your house knocked down about your ears.
Concurrence of all on one hand—rights of each on the other. From this antithesis we learn, that whatever security happens to be conferred by the exertions of any number less than all, is no security at all.
Property is the right of enjoying and disposing of one’s goods—of one’s revenues—of the fruit of one’s labour and one’s industry.
Another definition in the soporific style, but perhaps not quite so innocent. Property is the right of enjoyment and disposal. Let a man, then, have ever so much of either right, yet if he have not the other, he has no property. It is perhaps owing to this definition of property, that what the ci-devant clergy of France had to live upon, was not their property, and consequently there was no harm in robbing them of it. In England, tenant for life of a settled estate conceives himself to be a man of property: this article informs him that he knows nothing about the matter. In England, a woman who has an advowson, conceives the advowson to be her property: let her consult these French legislators, they will tell her it is no such thing, since she cannot give herself the living.
Let us pass on to the Declaration of the Duties of Man.
Right being one of the fruits of law, and duty another, it oceurred to the second set of constitution-makers, that a declaration of rights would be but a lop-sided job, without a declaration of duties to match it on the other side. The first declaration of rights having driven the people mad, a declaration of duties, it was hoped, might help to bring them to their senses. Whatever were their notions about the matter, thus much must be admitted to be true, that if poison must be taken, an antidote may have its use; but what would be still better would be, to throw both together, poison and antidote, into the fire. Every medicine that is good for anything, say the physicians, is a poison. The political medicine we have now to analyze, forms no exception to the rule.
What seems to have been no better understood by the second set of constitution-makers than by the first, is, that rights and duties grow on the same bough, and are inseparable; that so sure as rights are created, duties are created too; and that though you may make duties without making rights (which is in fact the result of the alas! but too numerous catalogue of laws by which nobody is the better,) yet to make rights without making duties is impossible. As deep judges of legislative composition as Monsieur Jourdan, who talked prose without knowing it, it seems to have escaped their observation, that in making rights (under pretence of dealing them out ready made) they were making duties without knowing anything about the matter.
Article I., or Preamble.
The Declaration of Rights contains the obligations of legislators:—the maintenance of society requires that those who compose it, know and fulfil equally their duties.
Whether by duties, in the latter part of the sentence, were meant exactly the same things as by obligations in the first, I will not take upon me absolutely to determine:—if it were, it will furnish one amongst so many other proofs, how insensible these masters of legislation are of the value of useful precision, in comparison with fancied elegance.
All the duties of the man and the citizen are derived from these two principles, engraven by nature in all breasts, in the hearts of all men,—
Do not to another that which you would not men should do to you.
Do constantly to others the good which you would receive from men.
The known source of this double-headed precept is the New Testament: “Whatsoever ye would that men should do unto you, do ye even so unto them.” Do as you would be done by, says the abridged expression of it, as given by the English proverb. What improvement the precept has received from the new edition given of it by the anti-christian hand, will presently appear.
A division is here made of it into two branches, a negative and a positive:—the tendency of the negative, placed where it is, is pernicious;—the tendency of the positive branch, worded as it is, absurd, and contrary to the spirit of the original:—the former, for want of the limitations necessary to the application here made of it, is too ample; the latter, by the tail clumsily tacked on to it, is made too narrow.
In what country is it, that it is the wish of accusers to be accused—of judges to be condemned—of guillotiners to be guillotined? In Topsyturvy-land, where cooks are roasted by pigs, and hounds hunted by hares; in that same land, a law thus worded might do no harm; and government might go on as well with it as without it. In France, thus much is clear, that whatsoever individual prosecutes a delinquent—whatsoever judge condemns him—whatsoever subordinate minister of justice executes the sentence of the judge, is a transgressor of this law—this fundamental law—given without reservation or exception—said to be engraven, just as we see it, in all hearts, and placed first in the list of duties.
Morality, not affecting precision, addresses itself to the heart: law, of which precision is the life and soul, addresses itself to the head.
The positive branch of the precept, under the necessity, it should seem, of rounding the period and making the line run well, is so worded as to shut the door against generosity. Do to a man that good. What good? Why, exactly and constantly just that very good which you want him to do to you. And if you happen not to want anything of him, what then? why then let him want, and welcome. There is nothing in this rule of law that can afford him a handle to take hold of, should he be inclined to accuse you of a breach of this fundamental duty. If you want a twopenny loaf, for example, go to the baker, and give him either a twopenny loaf or twopence:—in the first case, you fulfil the letter—in the latter, the spirit of the law. Should you see a man starving for want of such a loaf, let him starve, and welcome:—you want nothing of him, not you,—neither the twopenny loaf nor the twopence: let him starve on; there is nothing he can indict you upon in this law.
No one is a good citizen if he be not a good son, a good father, a good brother, a good friend, a good husband.
Good—as good as any other good thing that has been said a thousand times over in a novel or a play—silly as a law—scarcely reconcilable to the next preceding article, and not altogether reconcilable to the interests of the community at large.
The word civil gives name to one class of duties—the word domestic, to another. Is it impossible to violate one law without violating another? Does a man, by beating his wife, defraud the revenue? Does a man, who smuggles coffee, beat his wife? Brutus—the elder Brutus—who under a government where the father had the powers of life and death over the child, put his sons to death for conspiracy against the government,—he a bad citizen? or does goodness in a father consist in putting his children to death?
A friend of Lord Monteagle’s was engaged with Guy Fawkes and others in a conspiracy for blowing up the legislature. Under this fourth article and the third, what should Monteagle have done? The third bids him discover the plot; for it bids him defend and serve the society and the laws, thus threatened with destruction by the plot:—the fourth bids him say nothing about the matter; for what could he say about it that would not endanger the safety of his friend. If Monteagle had happened to be a wellwisher to the conspiracy, and desirous of concealing it, what could he have desired for his security better than such a clause?
No man is a good man if he be not frankly and religiously an observer of the laws.
Of the laws?—of what laws?—of all laws?—of all laws present and to come, whatsoever they may forbid, whatsoever they may enjoin? A religious observer of the laws which proscribe his religion—the only religion he thinks true—and bid him drag to judicial slaughter those who exercise it? To talk of religion—except in the way of rhetorical flourish—in the style which is here conceived to be the proper style for law, may perhaps be deemed on this occasion an abuse of words. Well, then: the men of September, or, since they are out of power, the men of the 10th of August, or the conquerors of the Bastile were they good men?—were they frank and religious observers of the law, declaring and enacting the inviolability of the king? The question may seem puzzling; but a former passage will help us to a solution. By articles XVIII. and XX. of the Declaration of Rights, a law is no law unless made by democracy run mad—made by men, women, and children,—convicts, madmen, and so on,—mediately or immediately. Here, then, we have a clue:—in a democracy run mad, goodness means submission to the laws: under every other sort of government, goodness means rebellion.
He who openly violates the law, declares himself in a state of war with society.
More very decent clappable matter for the stage: in a book of law, preciously absurd, and not a little dangerous.
To be in a state of war is to be in that state in which the business of each party is to kill the other.
In kindness to one set of button-makers, we have a silly law in England, condemning the whole country to wear now and for everlasting a sort of buttons they do not like. A more silly law can scarcely be imagined: but laws of a similar stamp are but too plentiful in Great Britain; and France will have good luck indeed, if laws of similar complexion do not, in spite of every exertion of democratic wisdom, find their way into France. In London you may see every day, in any street, men, women, and children, violating these and other such wholesome laws, knowingly or unknowingly, with sufficient openness. Since all these wicked uncivic button-wearers have declared war against society, what say you, Citizen Legal-epigram-maker, the penner of this declaration—what say you to a few four-and-twenty pounders filled with grape-shot, to clear the streets of them?
He who, without openly infringing the laws, eludes them by cunning or address, wounds the interests of all; he renders himself unworthy of their benevolence and their esteem.
As to the truth of this proposition, whether the eluding the observance of a law be or be not prejudicial to anybody, depends upon the nature of the law: if the law be one of those which are of no use to anybody, the eluding of it does no harm to anybody; if it be one of those which are of use to this or that description of persons, and that only, the eluding of it may be a prejudice to them, but does no harm to anybody else.
Were the law of libel, as it stands in England, to be obeyed without infraction, there would be no more liberty of discussion, publication, or discourse on political subjects, in England, than there is on religious subjects in Spain: were it executed in every instance of its being infringed, there would not be a man or a woman in England, who had eyes or ears, out of jail. The law of England, taking it with all its faults, is probably at least as near perfection upon the whole as the law of my other country: at the same time, were any good to come of it, I would engage to find laws in it, by dozens and by scores, any one of which, if generally obeyed, or at least if constantly executed, would be enough to effect the destruction of the country, and render it miserable.
Things being in this state, there seems unhappily no help for it, but that it must be left to each man’s conscience in respect to what laws he shall be forward, and to what backward, to pay obedience, and lend his hand to execute. While matters are in this imperfect state, indiscriminate obedience is no more to be insisted on with regard to laws in any country, than, under a limited monarchy, passive obedience is with regard to kings.
To judge by these three last articles of the Declaration of Duties of the Man and the Citizen, the compositor seems to have been rather hardly put to it to fill up the requisite quantity of paper. Rights of man present themselves in sufficient plenty; but when he comes to duties, it becomes apparent that when a man has said it is your duty to obey the laws, he has said all that is to be said about the matter. Accordingly, the contents of these three articles are not any addition to the list of duties, but observations on the subject, consisting of a string of epigrams and fine speeches fit for plays.
In regard to offences, the great difficulty is, and the great study ought to be, to distinguish them from one another: the business of this article is to confound them. In England, simple disobedience is one thing—rebellion (technically, but rather improperly, called treason) another: the punishment of the one, where no special punishment is appointed, is a slight fine, or a short imprisonment; that of the other, capital. In France, under the auspices of this declaration, these trifling differences are not thought worth noticing:—disobedience and rebellion are discovered to be the same thing. The state of the laws in France must be superior not only to what it has ever been during the revolutionary anarchy, but to what it ever has been during the best times of French history, or of the history of any other country of considerable extent, if there be a single day in any year in which scores of laws have not been transgressed, and that openly, by thousands and tens of thousands of individuals. If this be true, the effect of this single article must be, that after the restoration of peace, and the perfect establishment of the best of all possible constitutions, the habitual state of France will be a state of civil war.
In the codes of other countries, the great end of government is to quiet and repress the dissocial passions: in France, the great study is to inflame and excite them; it is so when declaring rights: it is so when declaring duties. Under this code, to be a true Frenchman, a man must be for ever in a passion:—ever ready to cut either his own or his neighbour’s throat. Whatever may be the subject with which this constitution commences, it ends in anarchy. Under this régime, there appears no difference between a tragedy and a law, in respect to style: fine sentiments, epigrams, chaleur mouvement, are equally indispensable in both. Every tragedy must be levelled at some law—every law must read like a tragedy—every law must end in a tragedy.
On the maintenance of property rests the cultivation of the lands, all the productions, every means of labour, and the whole fabric of social order.
The article, as thus worded, reads bold enough, and if it were less so, it would not be faithful. It presents a striking picture of the penman. His budget of duties emptied, his subject exhausted, and what is more, even his stock of fine speeches, yet he cannot persuade himself to stop. He would fain persuade his fellow-citizens to pay respect to property, by appealing to their love of country work and its productions; and if they have no regard for these things, to their love of work in general, and if labour have no charms for them, as a last resource, to their love of social order.
Every citizen owes his services to his country, to the maintenance of liberty, equality, and property, as often as the law calls upon him to defend them.
This is the last in this list of duty-declaring articles; and the conclusion of this short but superfluous composition is of a piece with the beginning,—full of uncertainty, obscurity, and danger.
Every citizen owes his services to his country, &c. Owes services? What services? for what time? and upon what terms? Military services? for soldier’s pay, and for life? If this were not meant, nothing can be easier than for any legislature—any administration—any administrator—any recruiting sergeant, to give it that meaning. Property we have seen already secured by double and treble tether: Liberty is here secured by a system of universal crimping. In England, pressing is still looked upon as a hardship, though no man is liable to be pressed, who has not voluntarily engaged in a profession which he knows will subject him to it. What should we say in England, were an act of Parliament to be passed, in virtue of which all individuals without exception, all ages and professions, sick and well, married and single, housekeepers and lodgers, lawyers, clergymen, and quakers, were liable to be pressed for soldiers—women perhaps into the bargain?—since in France, women’s necks have been found to fit the guillotine as well as men’s, and in England, thanks to the sages of the law, women make good constables.
Equality also is to be maintained, as well as property. Equality without limitation, and that by everybody, at the call of anybody. The distribution of property being at the time of issuing this declaration, prodigiously unequal—as much at least as in many a monarchy,—how are equality and property to be there at the same time?
The maintenance of both being incompatible,—to choose which of the two shall be maintained, since both cannot be maintained together, seems to be left to the wisdom of the citizens, rich and poor, industrious or idle, full or fasting, as occasion may arise. To a considerable majority, the maintenance of equality will probably be the pleasanter task of the two, as well as the more profitable.
OBSERVATIONS ON PARTS OF THE DECLARATION OF RIGHTS,
One general imperfection runs through the whole of this composition. The terms employed leave it continually in doubt whether it be meant to be prospective merely, or retrospective also,—whether it mean solely to declare what shall be the state of the law after the moment of the enactment of this declaration, or likewise what has been its state previous to that moment. To judge from the words, it should seem almost everywhere to include this retrospect. The objections to such retrospective declaration are—1. That it is notoriously untrue;—2. That the untruth of it is supposed by the very act of enacting the declaration; since if what is there established were already established, there would be no use for establishing it anew;—3. That the declaration of the past existence of the provisions in question would be of no use, though the matter of fact were true.
“Every society cannot but be the free work of a convention entered into between all the associated [members.]”
Hence it appears that there never has yet been such a thing as a society existing in the world. This is the first and most fundamental of all the fundamental truths, for the discovery of which the blind and obstinate world is indebted to Citizen Sieyes. Here live we, somehow or other, in Great Britain. It seems to us that we are living in society; but Citizen Sieyes, who knows everything, and everything in his own way, knows it is no such thing. What sort of a state is it we are living in, if we really do live? To know this, we must wait till a word has been assigned as suited to our wretched condition, adapted to express the miserable state we live in, by the grace and ingenuity of Citizen Sieyes. But do we live, after all? Whether we do or no, is at least as doubtful as whether we are in society; whether the state we are in, living or not living, be a state of society.
Is Citizen Sieyes living? To judge by Bickerstaff’s test, this were matter of serious doubt. The argument, however, does not seem conclusive. A man in Bedlam, or in the French Convention, might be writing such stuff—stuff altogether of a piece with this, and that not only with perfect fluency, but with perfect consistency of character between the composition and the situation that gave birth to it. From a man’s being known to write such stuff, it follows, therefore, not that a man is not living, but that he is living either in Bedlam, or in the French Convention.
A man turned crazy by self-conceit, takes a word in universal use, and determines within himself that he will use it in such a sense as a man never used it in before. With a word thus poisoned, he makes up a proposition,—any one that comes uppermost; and this he calls ingenuity:—this proposition he endeavours to cram down the throats of all those over whom he has or conceives himself to have power or influence—more especially of all legislators—of the legislators of the present and all future times;—and this he calls liberty; and this he call government.
“The object of a political society can be no other than the greatest good of all.”
This article announces a matter of fact in the form of an universal proposition, which, so far from being universally true, is not, nor perhaps ever was true in any instance.
It exhibits the same silly and unnecessary substitution of can not for ought not—the same use of an improper word for a proper one at least equally obvious—of an ambiguous for an unambiguous—unless to the original import of the word can, be here meant to be added, or rather substituted, its mischief-making, and anarchy-exciting import,—and that in consequence every society in which, on any point, any notion or notions of the public good were entertained different from those of Citizen Sieyes, shall on every such occasion be regarded as ipso facto in a state of dissolution.
One thing may be learned from the order given to the two articles—that happiness in society is an article but of secondary account. A matter of superior importance is—that the society should have been got together upon the never-exemplified and physically-impossible plan of an original and universal contract.
“Every man is sole proprietor of his own person, and this property is inalienable.”
More nonsense—more mischievous nonsense,—tendencies of the most mischievous kind, wrapped up under the cover of a silly epigram: as if a man were one thing, the person of the same man another thing; as if a man kept his person, when he happened to have one, as he does his watch, in one of his pockets. While the sentence means nothing, it is as true as other nonsense: give it a meaning, any meaning whatsoever that the words are capable of bearing, according to any import ever given to them, and it is false. If by the property in question, it is meant to include all the uses that can be made of the proprietary subject, the proposition is not self-contradictory and nonsensical: it is only a nugatory proposition of the identical kind.
If each individual be the only individual that is to be allowed to make any use whatsoever of the faculties of all kinds, active and passive, mental and corporal, of that individual, and this be meant by being the proprietor of the person of an individual, then true it is, that the person of each individual can have but one proprietor:—but if the case be, in any instance, that while the individual himself, and he alone, is permitted to make use to certain purposes of the faculties of that individual for a certain time, some other—any other—is permitted to make use of the faculties of the same individual to other purposes for the same time, then the proposition, that no individual can have a property in the person of another individual, is false:—the proposition that no man shall be suffered to have any property in the person of another, would be a mischievous one, and mischievous to a degree of madness.
In what manner is the legal relation of the husband to the wife constituted, but by giving him a right for a certain time, to the use of certain faculties of her’s—by giving him, in so far, a property in her person?—and so with respect to the legal relations of the father to the child under age, and of the master to the apprentice or other servant, whatever be the nature of the service.
The present tense is, is absurdly put for the future shall be. Injustice, and of the most cruel kind, lurks under this absurdity. The effect of the future would only be to cut up domestic power, and thence domestic society, for the future: the effect of the present is to cut it up at the instant, and, by necessary inference, as to the past, and to put every past exercise of such power upon the footing of a crime; in a word, to have the retroactive effect disclaimed by the constitution of 1795. If no individual have at this present time any property, however limited, in the person of any other individual, it must be in virtue of some cause which has prevented his ever having had any such property in any past period of time: it must be, in a word, in virtue of some such cause as this, viz. its being contrary to the eternal, as well as inalienable and natural rights of man to possess any such property. If it be a crime in a man now to send his servant on an errand with a bundle on his back—to dip his ailing infant in a cold bath—or to exercise the rights supposed to be given him by marriage on his wife—it must have always been a crime, and a crime of equal dye, punishable at the mercy of such judges as Citizen Sieyes.
To make the matter worse—the mischief greater—the absurdity more profound,—this property, such as it is, whatever it be—all the property that any individual has in his own person—is to be considered as inalienable. No individual is to be suffered to give any other individual a right to make use of his person, his faculties, his services, in any shape. No man shall let himself out to service—no man shall put himself or his son out to serve as an apprentice—no man shall appoint a guardian to his child—no woman shall engage herself to a man in marriage.
Will it be said, that there is no such thing as alienation for a time? Or will it be said, in justification of the citizen, that the citizen did not know what he was talking about, and that though he spoke of alienation in general, alienation for all manner of terms, the only sort of alienation he really meant to interdict, in respect of the property in question, was alienation during life? and that the meaning of the citizen was not absolutely to forbid marriage—that he meant to allow of marriage for limited terms of years, and meant only to prohibit marriage for life?
But supposing even this to have been the purpose, and that purpose ever so good a one, the provision is still a futile one, and inadequate to that purpose. To what purpose forbid an alienation for life, if you admit of it for years, without restricting it to such a number of years as shall ensure it against possessing a duration co-extensive with at least the longest ordinary term of life? No such limitation has the citizen vouchsafed to give:—possibly as not finding it altogether easy to put any such limitation in years and figures into the mouth of Queen Nature, whose prime minister Citizen Sieyes, like so many other citizens, has been pleased to make himself.
The article seems to be levelled at negro slavery; but I do not see what purpose it is capable of answering in that view. Does it mean to announce what has been the state of the law hitherto, or what shall be the state of the law in future? In the first case, its truth is questionable, and, true or false, it is of no use. In the latter sense, does it mean to declare, that no person shall have the right of exacting personal service of any other, or producing physical impressions on his passive faculties, without his consent? It reprobates all rights to services of any kind, and all powers of punishment. Does it declare that no such powers shall exist without limitation?—It does not so much as provide against negro slavery, even where the conditions on which it is established are most indefensible; for nowhere has the power of the master over the slave subsisted without limitations.
Does this article mean to set at perfect liberty all negro slaves at once? This would be not more irreconcilable with every idea of justice with regard to the interest of the present master, than with every idea of prudence with regard to the interest of the slaves themselves.
“Every author may publish, or cause his productions to be published, and he may cause them to circulate freely, as well by the post as by any other way, without having ever to fear any abuse of confidence.”
I shall make no observations upon the dangers arising from this unlimited liberty; but I cannot refrain from pointing out the silliness of the expression. The author intended to have said, that every abuse of confidence ought to be treated as an offence: but what he has said is, that the offence is impossible, so impossible that there is no reason to fear it; as if this declaration would be sufficient to deprive government and individuals of the power to commit an abuse of confidence.
“Letters, in particular, ought to be considered as sacred by all the intermediate persons who may be found between the person who writes, and him to whom they are written.”
What does this word sacred mean? Is this the manner in which a legislator ought to speak?
What! if a calumny—a plan of conspiracy—a project of assassination—be put into a letter, is that letter to be sacred? Will the opening it be sacrilege? This crime, if it be one, will be ranked in that class of crimes which have commonly been considered the most enormous offences against religion—offences against God himself.
Whilst as to the act itself, is it for the public good that government should open the letters? That is the question. If the law prohibit it, the post would become a terrible engine in the hands of malefactors and conspirators. With the intention of protecting the communications of individuals, this law would expose the public to the greatest dangers. There are some crimes so mischievous, that no means ought to be neglected for their prevention or detection. Will it be said, that the fear of having their letters opened will restrain honest correspondents in the communications of commerce, or the effusions of friendship?
It is true, that if the simple communication of opinions between individuals should be constituted a crime, the opening of letters might become a terrible engine of tyranny. But it is here that the precautions against abuse should be placed. It is this which is done in England, where the secretary of state may open letters upon his responsibility, though it be not allowed to any one else.
“Every man is equally at liberty to go or stay, to enter or to go out, and even to leave the kingdom and to return into it, as shall seem good to him.”
This article has reference not to the citizen alone, but to every man, to every stranger, as well as every Frenchman. All are at liberty to go or stay, to enter or to go out, to leave the kingdom or to return into it, as shall seem good to them. Absurdity cannot go farther. Is there to be no police? Cannot intercourse be interdicted—may not public edifices be closed—may not access to fortifications he prevented, &c.? With this unlimited right, how would it be possible to advise the construction of prisons for the detention of malefactors? How could the author of this declaration tolerate the laws against emigrants? Were not these laws a formal denial of the rights of man?
I do not impute these extravagant intentions to the author of the article: he had concluded the preceding article by the words—“The law alone can mark the limits which ought to be given to this liberty as well as every other;” and I suppose that the words in the same manner, at the head of this, announce that the liberty of going and coming is subject to the same restriction. But then the proposition which seems to say much, would have said nothing—“You may do everything except what the laws prohibit.” Dangerous or insignificant, such is the alternative which is without ceasing found in this declaration.
“In short, every man is at liberty to dispose of his wealth, of his property, and to regulate his expense as he thinks proper.”
Here there is no legal restriction: the proposition is unlimited. If by disposing of his wealth, the author intend that he may do whatever he likes, the proposition is absurd in the extreme. Are there no necessary limits to the employment of his property? Ought a man to have the right of establishing after his death, either religious or anti-religious foundations at the expense of his family? Ought not the law to hinder an individual from disinheriting his children without cause assigned?
“To regulate his expense as he thinks proper,” is a good housekeeping expression. A master may speak in this manner to his steward; but is this the style of a legislator? Minors, madmen, prodigals, ought to be placed under positive restrictions as to their expenses. There are cases in which certain sumptuary laws may be suitable. There may be good reasons for prohibiting games of hazard, lotteries, public entertainments, donations after the manner of the Romans, and a thousand other species of expense.
“The law has for its object the common interest; it cannot grant any privilege to any one.”
The first proposition is false in fact. The law ought only to have for its object the common interest: this is what is true. This error perpetually recurs in this little work.
But is the consequence which is drawn from this principle just? May there not be some privileges founded upon the common interest?
In one sense, all powers are privileges; in another sense, all social distinctions are so also. A title of honour, an honorary decoration, an order of knighthood—these are all privileges. Ought the legislature to be interdicted from the employment of these means of remuneration?
There is one species of privilege certainly very advantageous: the patents which are granted in England for a limited time, for inventions in arts and manufactures. Of all the methods of exciting and rewarding industry, this is the least burthensome, and the most exactly proportioned to the merit of the invention. This privilege has nothing in common with monopolies, which are so justly decried.
“And if privileges are established, they ought to be instantly abolished, whatever may be their origin.”
Here is the most unjust, the most tyrannical, the most odious principle. Instantly abolished! This is the order of the despot, who will listen to nothing, who will make everything bend to his will, who sacrifices everything to his caprice.
There are some privileges and rights which have been purchased at great price. Their sudden abolition would throw a great number of families into despair: it would strip them of their property—it would produce the same wrong to them as if a multitude of strangers were admitted to share their revenues, and that instantly.
There are some magisterial offices held by hereditary title. The possessors would be deprived of them without regard to their circumstances, to their welfare, or even to the interests of the state itself—and that instantly.
There are some commercial societies to which the law has granted monopolies. These monopolies are abolished, without regard to the ruin of the associates, to the advances they have made, to the engagements they have formed—and that instantly.
One great merit in a good administration is, that it proceeds gently in the reform of abuses—that it does not sacrifice existing interests—that it provides for the enjoyments of individuals—that it gradually prepares for good institutions—that it avoids all violent changes in condition, establishment, and fortune.
Instantly, is a term suitable to the meridians of Algiers and Constantinople. Gradually, is the language of justice and prudence.
“If men are not equal in means,—that is to say, in wealth, in mind, in strength, &c.—it does not follow that they ought not all to be equal in rights.”
Certainly the wife is not equal in rights to her husband; neither is the child under age equal to his father, nor the apprentice to his master, nor the soldier to his officer, nor the prisoner to the jailer, unless the duty of obedience should be exactly equal to the right of commanding. Difference in rights is precisely that which constitutes social subordination. Establish equal rights for all, there will be no more obedience, there will be no more society.
He who possesses property possesses rights—exercises rights—which the non-proprietor does not possess and does not exercise.
If all men are equal in rights, there will not exist any rights; for if all have the same right to a thing, there will no longer be any right for any one.
“Every citizen who is unable to provide for his own wants, has a right to the assistance of his fellow-citizens.”
To have a right to the assistance of his fellow-citizens, is to have a right to their assistance in their individual or their collective capacity.
To give to every poor person a right to the assistance of every individual who is not equally poor, is to overturn every idea of property; for as soon as I am unable to provide for my subsistence, I have right to be supported by you: I have a right to what you possess—it is my property as well as yours; the portion which is necessary to me is no longer yours—it is mine; you rob me if you keep it from me.
It is true that there are difficulties in its execution. I am poor: to which of my fellow-citizens ought I to address myself, to make him give me what I want? Is it to Peter rather than to Paul? If you confine yourself to declaring a general right, without specifying how it is to be executed, you do nothing at all: I may die of hunger before I can find out who ought to supply me with food.
What the author has said, is not what he meant to say: his intention was to declare that the poor should have a right to the assistance of the community. But then it is necessary to determine how this assistance ought to be levied and distributed: it is necessary to organize the administration which ought to assist the poor—to create the officers who ought to inquire into their necessities, and to regulate the manner in which the poor ought to proceed in availing themselves of their right.
The relief of indigence is one of the noblest branches of civilization. In a state of nature, when we can form any idea of it, those who cannot procure food, die of hunger. There must exist a superfluity for a numerous class of the society, before it is possible to apply a part of it to the maintenance of the poor. But it is possible to suppose such a state of poverty—such a famine—that it would no longer be possible to supply bread to all who want it. How, then, can we convert this duty of benevolence into an absolute right? This would be to give the indigent class the most false and dangerous ideas: it would not only destroy all gratitude on the part of the poor towards their benefactors—it would put arms in their hands against all proprietors.
I am aware that the author would defend himself against all the consequences which so clearly spring from his principles, by the clause which he has inserted, “That no one has the right to injure another,” and that the law may put bounds to the exercise of all the branches of liberty. But this clause reduces all his rights to nothing; for if the law may put bounds to them, till these are known, what knowledge can I have of my rights?—what use can I make of them? Nothing can be more fallacious than a declaration which gives me with one hand, what it authorizes the taking from me with the other. Thus cut down, this declaration might be propounded at Morocco or Algiers, and do neither good nor harm.
PRINCIPLES OF INTERNATIONAL LAW.
(now first published from the original manuscripts.)
OBJECTS OF INTERNATIONAL LAW.
If a citizen of the world had to prepare an universal international code, what would he propose to himself as his object? It would be the common and equal utility of all nations: this would be his inclination and his duty. Would or would not the duty of a particular legislator, acting for one particular nation, be the same with that of the citizen of the world? That moderation, which would be a virtue in an individual acting for his own interests, would it become a vice, or treason, in a public man commissioned by a whole nation? Would it be sufficient for him to pursue in a strict or generous manner their interests as he would pursue his own?—or would it be proper, that he should pursue their interests as he would pursue his own, or ought he so to regulate his course in this respect as they would regulate theirs, were it possible for them to act with a full knowledge of all circumstances? And in this latter case, would the course he would pursue be unjust or equitable? What ought to be required of him in this respect?
Whatever he may think upon these questions—how small soever may be the regard which it may be wished that he should have for the common utility, it will not be the less necessary for him to understand it. This will be necessary for him on two accounts: In the first place, that he may follow this object in so far as his particular object is comprised in it;—secondly, that he may frame according to it, the expectations that he ought to entertain, the demands he ought to make upon other nations. For, in conclusion, the line of common utility once drawn, this would be the direction towards which the conduct of all nations would tend—in which their common efforts would find least resistance—in which they would operate with the greatest force—and in which the equilibrium once established, would be maintained with the least difficulty.
Let us take, for example, the famous law with respect to prizes, adopted by so many nations at the suggestion of Catherine II. of Russia. How formidable soever may have been the initiating power, there is no reason to think that it was fear which operated upon so many nations, together so powerful, and some of them so remote: it must have been its equity, that is to say, its common utility, or, what amounts to the same thing, its apparent utility, which determined their acceptance of it. I say real or apparent; for it will be seen that this is not the place to decide without necessity upon a question so delicate and complex.
But ought the sovereign of a state to sacrifice the interests of his subjects for the advantage of foreigners? Why not?—provided it be in a case, if there be such an one, in which it would have been praiseworthy in his subjects to make the sacrifice themselves.
Probity itself, so praiseworthy in an individual, why should it not be so in a whole nation? Praiseworthy in each one, how can it be otherwise in all? It may have been true that Charles the Second did well in selling Dunkirk: he would not have done less well, had he not put the price in his own pocket.
It is the end which determines the means. Here the end changes (or at least appears to change;) it is therefore necessary that the means should change or appear to change also.
The end of the conduct which a sovereign ought to observe relative to his own subjects,—the end of the internal laws of a society,—ought to be the greatest happiness of the society concerned. This is the end which individuals will unite in approving, if they approve of any. It is the straight line—the shortest line—the most natural of all those by which it is possible for a sovereign to direct his course. The end of the conduct he ought to observe towards other men, what ought it to be, judging by the same principle? Shall it again be said, the greatest happiness of his own subjects? Upon this footing, the welfare, the demands of other men, will be as nothing in his eyes: with regard to them, he will have no other object than that of subjecting them to his wishes by all manner of means. He will serve them as he actually serves the beasts, which are used by him as they use the herbs on which they browse—in short, as the ancient Greeks, as the Romans, as all the models of virtue in antiquity, as all the nations with whose history we are acquainted, employed them.
Yet in proceeding in this career, he cannot fail always to experience a certain resistance—resistance similar in its nature and in its cause, if not always in its certainty and efficacy, to that which individuals ought from the first to experience in a more restricted career; so that, from reiterated experience, states ought either to have set themselves to seek out—or at least would have found, their line of least resistance, as individuals of that same society have already found theirs; and this will be the line which represents the greatest and common utility of all nations taken together.
The point of repose will be that in which all the forces find their equilibrium, from which the greatest difficulty would be found in making them to depart.
Hence, in order to regulate his proceedings with regard to other nations, a given sovereign has no other means more adapted to attain his own particular end, than the setting before his eyes the general end—the most extended welfare of all the nations on the earth. So that it happens that this most vast and extended end—this foreign end—will appear, so to speak, to govern and to carry with it the principal, the ultimate end; in such manner, that in order to attain to this, there is no method more sure for a sovereign than so to act, as if he had no other object than to attain to the other;—in the same manner as in its approach to the sun, a satellite has no other course to pursue than that which is taken by the planet which governs it.
For greater simplicity, let us therefore substitute everywhere this object to the other:—and though unhappily there has not yet been any body of law which regulates the conduct of a given nation, in respect to all other nations on every occasion, as if this had been, or say rather, as if this ought to be, the rule,—yet let us do as much as is possible to establish one.
1. The first object of international law for a given nation:—Utility general, in so far as it consists in doing no injury to the other nations respectively, saving the regard which is proper to its own well-being.
2. Second object:—Utility general, in so far as it consists in doing the greatest good possible to other nations, saving the regard which is proper to its own well-being.
3. Third object:—Utility general, in so far as it consists in the given nation not receiving any injury from other nations respectively, saving the regard due to the well-being of these same nations.
4. Fourth object:—Utility general, in so far as it consists in such state receiving the greatest possible benefit from all other nations, saving the regard due to the well-being of these nations.
It is to the two former objects that the duties which the given nation ought to recognise may be referred. It is to the two latter that the rights which it ought to claim may be referred. But if these same rights shall in its opinion be violated, in what manner, by what means shall it apply, or seek for satisfaction? There is no other mode but that of war. But war is an evil—it is even the complication of all other evils.
5. Fifth object:—In case of war, make such arrangements, that the least possible evil may be produced, consistent with the acquisition of the good which is sought for.
Expressed in the most general manner, the end that a disinterested legislator upon international law would propose to himself, would therefore be the greatest happiness of all nations taken together.
In resolving this into the most primitive principles, he would follow the same route which he would follow with regard to internal laws. He would set himself to prevent positive international offences—to encourage the practice of positively useful actions.
He would regard as a positive crime every proceeding—every arrangement, by which the given nation should do more evil to foreign nations taken together, whose interests might be affected, than it should do good to itself. For example, the seizing a port which would be of no use except as the means of advantageously attacking a foreign nation;—the closing against other nations, or another nation, the seas and rivers, which are the highways of our globe;—the employing force or fraud for preventing a foreign nation from carrying on commerce with another nation. But by their reciprocity, injuries may compensate one another.
In the same manner, he would regard as a negative offence every determination, by which the given nation should refuse to render positive services to a foreign nation, when the rendering of them would produce more good to the last-mentioned nation, than it would produce evil to itself. For example, if the given nation, without having reason to fear for its own preservation (occupying two countries of which the productions were different,) should obstinately prohibit commerce with them and a foreign nation:—or if when a foreign nation should be visited with misfortune, and require assistance, it should neglect to furnish it:—or, in conclusion, if having in its own power certain malefactors who have malâ fide committed crimes to the prejudice of the foreign nation, it should neglect to do what depends upon it to bring them to justice.
War is, as has been said, a species of procedure by which one nation endeavours to enforce its rights at the expense of another nation. It is the only method to which recourse can be had, when no other method of obtaining satisfaction can be found by complainants, who have no arbitrator between them sufficiently strong, absolutely to take from them all hope of resistance. But if internal procedure be attended by painful ills, international procedure is attended by ills infinitely more painful—in certain respects in point of intensity, commonly in point of duration, and always in point of extent. The counterpart of them will, however, be found in the catalogue of offences against justice.
The laws of peace would therefore be the substantive laws of the international code: the laws of war would be the adjective laws of the same code.
The thread of analogy is now spun; it will be easy to follow it. There are, however, certain differences.
A nation has its property—its honour—and even its condition. It may be attacked in all these particulars, without the individuals who compose it being affected. Will it be said that it has its person? Let us guard against the employment of figures in matter of jurisprudence. Lawyers will borrow them, and turn them into fictions, amidst which all light and common sense will disappear; then mists will rise, amidst the darkness of which they will reap a harvest of false and pernicious consequences.
Among nations, there is no punishment. In general, there is nothing but restitution, to the effect of causing the evil to cease;—rarely, indemnification for the past; because among them there can scarcely be any mauvaise foi. There is but too much of it too often among their chiefs; so that there would be no great evil if, at the close of his career, every conqueror were to end his days upon the rack—if the justice which Thomyris executed upon Cyrus were not deemed more striking, and his head were not thrown into a vessel of blood,—without doubting that the head of Cyrus was most properly thrown there. But however dishonest the intention of their chiefs may be, the subjects are always honest. The nation once bound—and it is the chief which binds it—however criminal the aggression may be, there is properly no other criminal than the chief:—individuals are only his innocent and unfortunate instruments. The extenuation which is drawn from the weight of authority, rises here to the level of an entire exemption.
The suffrages of the principle of antipathy are here found in accord with the principle of utility: on the one part, vengeance wants a suitable object; on the other hand, every punishment would be unnecessary, useless, expensive, and inefficacious.
As to the third and fourth objects, it is scarcely necessary to insist on them:—nations, as well as men, sovereigns as well as individuals, pay sufficient attention to their own interests—there is scarcely any need to seek to lead them to it. There remain the two first and the last.
To actions by which the conduct of an individual tends to swerve from the end which internal laws ought to propose to themselves, I have given, by way of anticipation, the name of offences:—by a similar anticipation, we may apply the same appellation to actions by which the conduct of a whole nation swerves from the object which international laws ought to propose to themselves.
Among sovereigns, as well as among individuals, there are some offences de bonne foi; there are others de mauvaise foi. One must be blind to deny the latter—one must be much more sadly blind to deny the others. People sometimes think to prove their discernment by referring everything to the latter head, or to prove it equally by referring everything to the former. It is in this manner they proceed in judging of men, and especially of sovereigns: they grant to them an intelligence without limits, rather than recognise in them a grain of probity; they are believed never to have blushed at folly, provided that it has had malignity for its companion. So much has been said of the injustice of sovereigns, that I could wish a little consideration were given to the still more common injustice of their detractors; who, whilst they preserve their concealment, revenge themselves upon the species in general, for the adulation which in public they lavish upon individuals.
The following are among the causes of offences de bonne foi, and of wars:—
1. Uncertainty of the right of succession with regard to vacant thrones claimed by two parties.
2. Intestine troubles in neighbouring states. These troubles may also have for their cause an uncertainty of the same kind as the preceding, or a dispute concerning constitutional law in the neighbouring state, either between the sovereign and his subjects, or between different members of the sovereign body.
3. Uncertainty with respect to limits, whether actual or ideal. The object of these limits may be to keep separate either goods, or persons, or causes.
4. Uncertainty as to the limits of new discoveries made by one party or another.*
5. Jealousies caused by forced cessions, more or less recent.
6. Disputes or wars, from whatsoever cause they may arise, among circumjacent states.
7. Religious hatred.
Means of Prevention.
1. Homologation of unwritten laws which are considered as established by custom.
2. New conventions—new international laws to be made upon all points which remain unascertained; that is to say, upon the greater number of points in which the interests of two states are capable of collision.
3. Perfecting the style of the laws of all kinds, whether internal or international. How many wars have there been, which have had for their principal, or even their only cause, no more noble origin than the negligence or inability of a lawyer or a geometrician!
OF SUBJECTS, OR OF THE PERSONAL EXTENT OF THE DOMINION OF THE LAWS.
Coextensive to dominion is jurisdiction: dominion the right of the sovereign; jurisdiction of the judge. Not that it is necessary that there should be any one judge or set of judges whose jurisdiction should be coextensive with the dominion of the sovereign—only that for every particle of dominion there should be a correspondent particle of jurisdiction in the hands of some judge or other: correspondent to one field of dominion there may be many fields of jurisdiction.
What is dominion? It is either the power of contrectation, or else that of imperation, for there are no others. But the power of contrectation is a sort of power which, in a settled government, it scarcely ever becomes either necessary or agreeable to the sovereign, as such, to exercise; so that under the head of the power of imperation is comprised all the power which the sovereign is accustomed to exercise: and the same observation may be applied to the power of the judge.
Of the power of imperation, or the power of issuing mandates, the amplitude will be as the amplitude of the mandates which may be issued in virtue of it: the amplitude and quality of the mandates will be as the amplitude and quality of the persons who are their agible subjects—the persons who are their passible subjects—the things, if any, which are their passible subjects, and the acts which are their objects in place and time.
The persons who are their agible subjects are the persons whose acts are in question—the persons whose acts are the objects of the mandate.
A sovereign is styled such, in the first instance, in respect of the persons whom he has the right or power to command. Now, the right or legal power to command may be co-extensive with the physical power of giving force and effect to the command: that is, by the physical power of hurting—the power of hyper-physical contrectation employed for the purpose of hurting. But by possibility, every sovereign may have the power of hurting any or every person whatsoever, and that not at different times only, but even at one and the same time.
According to this criterion, then, the sphere of possible jurisdiction is to every person the same; but the problem is to determine what persons ought to be considered as being under the dominion of one sovereign, and what others under the dominion of another;—in other words, what persons ought to be considered as the subjects of one sovereign, and what as the subjects of another.
The object of the present essay is to determine, upon the principle of utility, what persons ought, in the several cases that may present themselves, to be considered as the subjects of the law of the political state in question, as subject to the contrectative or imperative power of that law.
Proceeding as usual upon the exhaustive plan, I shall examine—
1. Over what persons the law can in point of possibility exercise dominion; what persons in point of possibility may be the subject of it; what persons in point of possibility it may treat as upon the footing of its subjects with effect; over what persons the law has possible dominion and jurisdiction; over what persons the law may have dominion and jurisdiction in point of force.
2. Over other persons than these, it is plain that it can never be right to say, the law ought upon the principle of utility to exercise jurisdiction. Why? Because it is idle to say of the lawgiver, as of anybody else, that he ought to do that which by the supposition is impossible.
The next inquiry is, then,—the persons over whom the law may in point of possibility exercise dominion being given, over what sort of persons in that number ought the law in point of utility to exercise dominion? what persons of that number ought to be looked upon as subject to it? over what persons of that number it has jurisdiction in point of right? taking general utility as the measure of right, as usual, where positive law is out of the question.
3. It will then be another, and that a distinct question, over what sort of persons, and in what cases, the law in any given state does actually exercise dominion? and over what sort of persons, and in what cases, the law has dominion in point of exercise?
Dominion, then, may be distinguished into—1. Dominion potential, or in point of force; 2. Dominion actual, or dominion in point of exercise; 3. Jurisdiction rightful or rather approveable, or jurisdiction in point of moral right.
The nature of the present design is to determine in what cases, if actual dominion were established, it would be rightful: in other words, in what cases it is the moral right, and at the same time the moral duty,—in what cases the moral right, without being the moral duty,—of the given sovereign, as towards other sovereigns, to cause jurisdiction to be exercised over persons who are subject to his physical power? How far, and in what points, sovereigns, in the jurisdiction which they cause to be exercised over such persons as are within their reach, ought to yield or be aiding to each other?
An individual can be subject to a sovereign no farther than the physical power which that sovereign has of hurting him, or his afflictive power, as it may be called, extends. The question is, the cases in which the sovereign has the power of hurting him being given, in which of them ought he, upon the principle of utility, to exercise that power?—in which of them ought other sovereigns, who may think their power concerned, to acquiesce in his exercising such power?
In every state, there are certain persons who are in all events, throughout their lives, and in all places, subject to the sovereign of that state—it is out of the obedience of these that the essence of sovereignty is constituted: these may be styled the standing or ordinary subjects of the sovereign or the state; and the dominion over them may be styled fixed or regular. There are others who are subject to him only in certain events, for a certain time, while they are at a certain place: the obedience of these constitutes only an accidental appendage to his sovereignty: these may be termed his occasional or extraordinary subjects, or subjects pro re natis; and the dominion he has over them may be styled occasional.*
His afflictive power being the limit of his actual as well as of his rightful dominion, his standing subjects will be those over whom he has the most afflictive power—over whom his afflictive power is the strongest: over his occasional subjects, his afflictive power will not be so strong. Now the points in which a man can be hurt are all of them comprised, as we have seen, under these four, viz. his person, his reputation, his property, and his condition. Of these four points, that in respect of which he can be made to suffer most is his person: since that includes not only his liberty, but his life. The highest jurisdiction therefore, is that of which the subject is a man’s person. According to this criterion, then, the standing subjects of a sovereign should be those individuals whose persons are in his power.
This criterion would be a perfectly clear and eligible one, were the case such, that in the ordinary tenor of human affairs, the persons of the same individuals were constantly under the physical power, or, as we say, within the reach of the same sovereign. But this is not the case. The different interests and concerns of the subject, the interest even of the sovereign himself, requires the subject to transport himself necessarily to various places, where, according to the above criterion, he would respectively become the subject of so many sovereigns. But the question is, to what sovereign a given individual is subject, in a sense in which he is not subject to any other? This question, it is plain, can never be determined by a criterion which determines him to be the subject of one sovereign, in the same sense in which he may be subject to any number of other sovereigns. According to this criterion, a sovereign might have millions of subjects one day, and none at all the next.
Some circumstance, therefore, more constant and less precarious, must be found to ground a claim of standing dominion upon, than that of the present facility of exercising an afflictive power over the person of the supposed subject: a facility which, in truth, is no more than might be possessed not only by an established sovereign, but by any, the most insignificant oppressor. Any man may, at times, have the power of hurting any other man. The circumstance of territorial dominion—dominion over land—possesses the properties desired. It can seldom happen that two sovereigns can, each of them, with equal facility, the other being unwilling, traverse the same tract of land. That sovereign then who has the physical power of occupying and traversing a given tract of land, insomuch that he can effectually and safely traverse it in any direction at pleasure,—at the same time, that against his will another sovereign cannot traverse the same land with equal facility and effect,—can be more certain of coming at the individual in question, than such other sovereign can be, and therefore may be pronounced to have the afflictive power over all such persons as are to be found upon that land—and that a higher afflictive power than any other sovereign can have. And hence, the maxim dominion over person depends upon dominion over land.
But even this indicium, this mark, is not a ground of sufficient permanence whereon to found the definition of standing sovereignty: for the same individual who is one day on land, which is under the dominion of a given sovereign, may another day be on land which is not under his dominion: from this circumstance, therefore, no permanent relation can be derived. But, that the relation should be a permanent one, is requisite on various grounds, upon the principle of utility—that each subject may know what sovereign to resort to, principally for protection,—that each sovereign may know what subjects to depend upon for obedience,—and that each sovereign may know when to insist, and when to yield in any contest which he might have with any other sovereign, who might lay a claim to the obedience of the same subjects.
The circumstance, then, which is taken for the indicium of sovereignty on the one part, and subjection on the other, should be not a situation, which at any time may change, but an event: this event should be one which must have happened once—which cannot have happened more than once—and which, having happened once, cannot be in the condition of one which has not happened; in short, an event which is past, necessary, and unicurrent. Such an event is that found in the event of a man’s birth—which must have happened for the man to exist—which cannot happen a second time, and which, being over, cannot but have happened—which must have happened in some district of the earth; so that at that period the man must have been within the physical power of the sovereign within whose territory he was born.
Yet still it is not birth that is the immediate ground of jurisdiction: the immediate ground is presence—presence with reference to the locus of the territorial dominion: if birth be the ground of dominion, it is only in virtue of the presumption which it affords of the other circumstance. In every state, almost, there are some who emigrate from the dominion within which they were born. But in every state almost, it is otherwise with by far the greater number. In civilized nations the greater part of mankind are glebæ ascriptitii, fixtures to the soil on which they are born. With nations of hunters and shepherds—with tribes of American savages, and hordes of Tartars or Arabians, it is otherwise. But with these we have no business here.
Thus it is that dominion over the soil confers dominion de facto over the greater part of the natives, its inhabitants; in such manner, that such inhabitants are treated as owing a permanent allegiance to the sovereign of that soil: and, in general, there seems no reason why it should not be deemed to do so, even de jure, judging upon the principle of utility. On the one hand, the sovereign, on his part, naturally expects to possess the obedience of persons who stand in this sort of relation to him: possessing it at first, he naturally expects to possess it—he is accustomed to reckon upon it: were he to cease to possess it, it might be a disappointment to him: any other sovereign having even begun to possess the allegiance of the same subject, has not the same cause for expecting to possess it; not entertaining any such expectation, the not possessing it is no disappointment: for subjects, in as far as their obedience is a matter of private benefit to the sovereign, may, without any real impropriety (absit verbo invidia,) be considered as subjects of his property. They may be considered as his property, just as any individual who owes another a service of any kind, may, pro tanto, be considered as his property. We speak of the service as being his property (such is the turn of the language,) that is, as being the object of his property; but a service being but a fictitious entity, can be but a fictitious object of property,—the real, and only real object, is the person from whom the service is due.
On the other hand, let us consider the state of mind and expectations of the subject. The subject having been accustomed from his birth to look upon the sovereign as his sovereign, continues all along to look upon him in the same light: to be obedient to him is as natural as to be obedient to his own father. He lives, and has all along been accustomed to live under his laws. He has some intimation (I wish the universal negligence of sovereigns, in the matter of promulgation, would permit me to say anything more than a very inaccurate and general intimation,) some intimation he has, however, of the nature of them. When occasion happens, he is accustomed to obey them. He finds it no hardship to obey them, none at least in comparison with what it would be were they altogether new to him; whereas, those of another sovereign, were they in themselves more easy, might, merely on account of their novelty, appear, and therefore be, harder upon the whole.
Thus much as to the more usual case where a man continues to inhabit, as his parents did before him, the country in which he was born. But what if his parents, being inhabitants of another country, were sojourners only, or mere travellers in the country in which he was born, and he, immediately after his birth, carried out of it never to see it again? The manners and customs, the religion, the way of thinking, the laws, of the one country opposite to those of the other? The sovereign of the one, at war with the sovereign of the other? If regard be paid to birth, something surely is due to lineage: an Englishwoman, travelling with her husband from Italy through France, is delivered of a son in France:—shall the son, when he grows up, be punished as a traitor, if taken in battle when fighting against the king of France? or, on the other hand, supposing it to be right and politic for the king of France to refuse to strangers born out of his dominion any of the rights enjoyed by his native subjects, would it be right that this man, who has never looked upon the French as his countrymen, nor the king of France as his sovereign, should partake of privileges which are denied to the subjects of the most favoured foreign nation? Shall the offspring of English protestants, born at Cadiz, be reclaimed as a fugitive from the inquisition? or the offspring of Spanish catholics, born in London, undergo the severity of the English laws, for being reconciled to the Church of Rome? Shall the Mahometan, born at Gibraltar, be punished for polygamy or wine drinking?
Nor would it, it should seem, be an adequate remedy to these inconveniences to take the birth-place of the parents, or, in case of their birth-places being different, that of the father, for example, as the indicium, to determine the allegiance of the child: the circumstances of their birth might have been accompanied by a similar irregularity. During a man’s education, his parents may have lived half their time in one country, half in another; what external mark can there be to determine to which of the two countries, if to either, his affections are attached?
The best way, therefore, seems to be, to refer the solution of the question to those alone who are in a condition to give it: and to refer the option of his country, in the first instance, to the parents or guardian provisionally, while the child is incapable of judging for himself; afterwards to himself, as soon as he is judged capable; so that when he comes to a certain age he shall take his choice.
A man may, therefore, be a member of a community either permanently or occasionally.
* A man may be permanently a member of a community:—1. By lineage, as the paternal grandson of an Englishman is an Englishman, wherever born; 2. By birth; 3. By naturalization.
A man may be occasionally the member of a community:—1. By fixed residence; 2. By travelling.
Jurisdiction may be distinguished into—1. Potential; 2. Rightful; 3. Actual.
The first principle with regard to its exercise, is regard for the interest of one’s own state.
This must however be controuled in point of volition and act, by the consideration of what will be endured by other states.
The next consideration is, in what cases jurisdiction may be assumed for the sake of foreign states.
Over the natives of a foreign state, jurisdiction may be exercised:—1. For its own sake; 2. For the sake of the native’s state; 3. For the sake of some other state; 4. For the sake of mankind at large.
For the same reasons, it may be exercised over its own subjects for offences committed in foreign states.
For its own sake it ought to punish all injurious offences committed for lucre, although committed abroad by foreigners.
The following considerations may restrain the state proposed from punishing offences committed out of its dominions:—
1. The difficulty of getting evidence, since foreigners cannot be compelled to appear.
Supposing the difficulty of procuring evidence to be got over, there is another difficulty,—the insuring the veracity of the evidence. If perjury should be detected, and even proofs obtained after the foreigner is gone back to his own country, he could not be punished.
This difficulty might be overcome by a commission to examine foreign witnesses abroad, touching any particular fact, application being made to the sovereign abroad for his sanction to corroborate the powers of the commissioners; or the commission might be given to his own subjects to execute,—it being left to the judgment of the judges in each case, whether the evidence alleged be the whole, or if not the whole, whether sufficient evidence.
Such a concurrence and communication is no more visionary and impracticable in all cases, than in admiralty causes concerning captures.
2. The fear of giving umbrage to foreign powers.
The former consideration applies equally to offences committed by citizens as by foreigners. The latter scarcely at all to offences committed by citizens, or at least not so strongly, as to offences committed by foreigners—citizens of the State by which it is feared umbrage may be taken.
The following considerations may impel the State proposed, to punish offences committed out of its dominion:—
1. Regard for the interest of the citizens.
2. Regard for the interests of foreigners,—viz. the foreign state or individual injured by the offence.
OF WAR, CONSIDERED IN RESPECT OF ITS CAUSES AND CONSEQUENCES.
War is mischief upon the largest scale. It might seem at first sight, that to inquire into the causes of war would be the same thing as to inquire into the causes of criminality, and that in the one case as in the other, the source of it is to be looked for in the nature of man,—in the self-regarding, the dissocial, and now and then, in some measure, in the social affections. A nearer view, however, will show in several points considerable difference,—these differences turn on the magnitude of the scale. The same motives will certainly be found operating in the one case as in the other; but in tracing the process from the original cause to the ultimate effect, a variety of intermediate considerations will present themselves in the instance of war, which have no place in the quarrels of individuals.
Incentives to war will be found in the war-admiring turn of histories, particularly ancient histories, in the prejudices of men, the notion of natural rivalry and repugnancy of interests, confusion between meum and tuum—between private ownership and public sovereignty, and the notion of punishment, which, in case of war, can never be other than vicarious.
In ancient times there was one system of inducements, under the feudal system another, and in modern times another.
The following may be enumerated among the inducements to war:—Apprehension of injustice—hope of plunder of moveables by individuals—hope of gain by raising contributions—hope of gain by sale or ransom of captives—national pride or glory—monarchical pride—national antipathy—increase of patronage—hope of preferment.
States have no persons distinct from the persons of individuals; but they have property, which is the property of the state, and not of individuals.
When an individual has a dispute about property with an individual, or has sustained what he looks upon as an injury in respect of his property from an individual, he applies for redress to their common superior, the judicial power of the state. When a state has sustained what it looks upon as an injury, in respect of property, from another state—there being no common superior ready chosen for them—it must either submit to the injury, or get the other state to join in the appointment of a common judge, or go to war.
Every state regards itself as bound to afford to its own subjects protection, so far as it is in its power, against all injuries they may sustain either from the subjects or the government of any other state. The utility of the disposition to afford such protection is evident, and the existence of such disposition no less so. Accordingly, if any individual subject of the state A, receive from a subject of the state B, an injury for which the state B forbears, after due proof and demand, to afford or procure adequate satisfaction, it is to the purpose of responsibility, the same thing as if the state B itself, in the persons of the members of its government, had done the injury.
The following may be set down as the principal causes or occasions of war, with some of the means of prevention:—
I. Offences real or pretended of the citizens of one state, towards the citizens of another state, caused by the interests of the citizens—
1. Injuries in general. Means of prevention:—Liquidation of the pretensions of the subjects of every sovereign, with regard to the subjects of every other sovereign.
2. Occasional injuries from rivalry in commerce: interception of the rights of property. Means of prevention:—General liberty of commerce.
II. Offences, real or pretended, of the citizens of one state towards the citizens of another state, caused by the interests or pretensions of sovereigns:—
1. Di-putes respecting the right of succession. Means of prevention:—Liquidation of titles: perfecting the style of the laws.
2. Disputes respecting boundaries, whether physical or ideal. Means of prevention:—Liquidation of titles: amicable demarcations positively made: perfecting of the style of the laws: regulation.
3. Disputes arising from violations of territory.
4. Enterprizes of conquest. Means of prevention:—Confederations of defence: alliances defensive: general guarantees.
5. Attempts at monopoly in commerce: Insolence of the strong towards the weak: tyranny of one nation towards another. Means of prevention:—Confederations defensive: conventions limiting the number of troops to be maintained.
No one could regard treaties implying positive obligations in this kind as chimerical; yet, if these are not so, those implying negative obligation are still less so. There may arise difficulty in maintaining an army; there can arise none in not doing so.
It must be allowed that the matter would be a delicate one: there might be some difficulty in persuading one lion to cut his claws; but if the lion, or rather the enormous condor which holds him fast by the head, should agree to cut his talons also, there would be no disgrace in the stipulation: the advantage or inconvenience would be reciprocal.
Let the cost of the attempt be what it would, it would be amply repaid by success. What tranquillity for all sovereigns!—what relief for every people! What a spring would not the commerce, the population, the wealth of all nations take, which are at present confined, when set free from the fetters in which they are now held by the care of their defence!
6. Fear of conquests. Means of prevention:—Defensive confederations.
7. Disputes respecting new discoveries—respecting the limits of acquisitions made by one state at the expense of another, on the ground of peaceful occupation. Means of prevention:—Previous agreement on the subject of possible discoveries.
8. Part taken in intestine troubles.
The refusal of a foreign power to recognise the right of a newly-formed government, has been a frequent cause of war; but no interest being at stake on either side, nothing so much as proposed to be gained, it is evident, that on both sides, whatever mischief is produced, is so much misery created in waste.
9. Injuries caused on account of religion. The difference between religion and no religion, however grating, is not nearly so irritating as that between one religion and another. Means of prevention:—Progress of toleration.
10. Interest of ministers. Means of prevention:—Salaries determinate, but effective.
Wars may be:—
i.Bonâ fide wars. A remedy against these would be found in “The Tribunal of Peace.”*
ii. Wars of passion. The remedy against these,—Reasoning, showing the repugnancy betwixt passion on the one hand, and justice as well as interest on the other.
iii. Wars of ambition, or insolence, or rapine. The remedies against these are—1. Reasoning, showing the repugnancy betwixt ambition and true interest; 2. Remedies of regulation, in the event of a temporary ascendency on the part of reason.
In all these cases, the utility with regard to the state which looks upon itself as aggrieved—the reasonableness in a word, of going to war with the aggressor—depends partly upon his relative force, partly upon what appears to have been the state of his mind with relation to the injury. If it be evident that there was no mala fides on his part, it can never be for the advantage of the aggrieved state to have recourse to war, whether it be stronger or weaker than the aggressor, and that in whatever degree;—in that case, be the injury what it will, it may be pronounced impossible that the value of it should ever amount to the expense of war, be it ever so short, and carried on upon ever so frugal a scale.
In case of mala fides, whether even then it would be worth while to have recourse to war, will depend upon circumstances. If it appear that the injury in question is but a prelude to others, and that it proceeds from a disposition which nothing less than entire destruction can satisfy, and war presents any tolerable chance of success, how small soever, prudence and reason may join with passion in prescribing war as the only remedy in so desperate a disease. For, though in case of perseverance on the part of the assailant, successful resistance may appear impossible; yet resistance, such as can be opposed, may, by gaining time, give room for some unexpected incident to arise, and may at any rate, by the inconvenience it occasions to the assailant, contribute in time or loss, to weaken the mass of inducements which prompt him to similar enterprises. Though the Spartans at Thermopylæ perished to a man, yet the defence of Thermopylæ was not without its use.
If, on the other hand, the aggression, though too flagrant not to be accompanied with mala fides, appear to have for its origin some passion or caprice which has for its incentive some limited object, and promises to be contented with that object,—the option is now, not between ruin avenged and unavenged, but between the loss of the object, whatever it be, and the miseries of a more or less hopeless war.
The Dutch displayed prudence, while they yielded to the suggestions of indignation, in defending themselves against the force of Spain. The same people displayed their prudence in yielding to Britain the frivolous honours of the flag, at the end of the war of 1652; they would have displayed still more, if they had made the same concession at the beginning of it.
Lastly, if the aggression, how unjust soever it may appear, when viewed in the point of view in which it is contemplated by the state which is the object of it, does not appear accompanied with mala fides on the part of the aggressor, nothing can be more incontestable than the prudence of submitting to it, rather than encountering the calamities of war. The sacrifice is seen at once in its utmost extent, and it must be singular indeed, if the amount of it can approach to that of the expense of a single campaign.
When war has broken out, a palliative for its evils might perhaps be found in the appointment of war-residents, to provide for prisoners and to prevent violations of the laws of war.
Will it be said, that in quality of a spy such residents would be to be feared? An enemy known to be such, could scarcely be a spy. All the proceedings of such residents should be open, and all his letters subjected to inspection.
At present, foreigners are scarcely excluded from an enemy’s country—scarcely even military men or ministers; and so soon as it is wished to employ a spy, could not a native be found?
A resident of this character could always be employed as a channel of communication, if an accommodation were desired.
A PLAN FOR AN UNIVERSAL AND PERPETUAL PEACE.
The object of the present Essay is to submit to the world a plan for an universal and perpetual peace. The globe is the field of dominion to which the author aspires,—the press the engine, and the only one he employs,—the cabinet of mankind the theatre of his intrigue.
The happiest of mankind are sufferers by war; and the wisest, nay, even the least wise, are wise enough to ascribe the chief of their sufferings to that cause.
The following plan has for its basis two fundamental propositions:—1. The reduction and fixation of the force of the several nations that compose the European system; 2. The emancipation of the distant dependencies of each state.* Each of these propositions has its distinct advantages; but neither of them, it will appear, would completely answer the purpose without the other.
As to the utility of such an universal and lasting peace, supposing a plan for that purpose practicable, and likely to be adopted, there can be but one voice. The objection, and the only objection to it, is the apparent impracticability of it;—that it is not only hopeless, but that to such a degree that any proposal to that effect deserves the name of visionary and ridiculous. This objection I shall endeavour in the first place to remove; for the removal of this prejudice may be necessary to procure for the plan a hearing.
What can be better suited to the preparing of men’s minds for the reception of such a proposal than the proposal itself?
Let it not be objected that the age is not ripe for such a proposal: the more it wants of being ripe, the sooner we should begin to do what can be done to ripen it; the more we should do to ripen it. A proposal of this sort, is one of those things that can never come too early nor too late.
Who that bears the name of Christian can refuse the assistance of his prayers? What pulpit can forbear to second me with its eloquence.—Catholic, and Protestants, Church-of-England-men and Dissenters, may all agree in this, if in nothing else. I call upon them all to aid me with their countenance and their support.
The ensuing sheets are dedicated to the common welfare of all civilized nations; but more particularly of Great Britain and France.
The end in view is to recommend three grand objects,—simplicity of government, national frugality, and peace.
Reflection has satisfied me of the truth of the following propositions:—
I. That it is not the interest of Great Britain to have any foreign dependencies whatsoever.
II. That it is not the interest of Great Britain to have any treaty of alliance, offensive or defensive, with any other power whatever.
III. That it is not the interest of Great Britain to have any treaty with any power whatsoever, for the purpose of possessing any advantage whatsoever in point of trade, to the exclusion of any other nation whatsoever.
IV. That it is not the interest of Great Britain to keep up any naval force beyond what may be sufficient to defend its commerce against pirates.
V. That it is not the interest of Great Britain to keep on foot any regulations whatsoever of distant preparation for the augmentation or maintenance of its naval force; such as the Navigation Act, bounties on the Greenland trade, and other trades regarded as nurseries for seamen.
VI. VII. VIII. IX. & X. That all these several propositions are also true of France.
As far as Great Britain is concerned, I rest the proof of these several propositions principally upon two very simple principles.
i. That the increase of growing wealth in every nation in a given period, is necessarily limited by the quantity of capital it possesses at that period.
ii. That Great Britain, with or without Ireland, and without any other dependency, can have no reasonable ground to apprehend injury from any one nation upon earth.
Turning to France, I substitute to the last of the two just-mentioned propositions the following:—
iii. That France, standing singly, has at present nothing to fear from any other nation than Great Britain: nor, if standing clear of her foreign dependencies, would she have any thing to fear from Great Britain.
XI. That supposing Great Britain and France thoroughly agreed, the principal difficulties would be removed to the establishment of a plan of general and permanent pacification for all Europe.
XII. That for the maintenance of such a pacification, general and perpetual treaties might be formed, limiting the number of troops to be maintained.
XIII. That the maintenance of such a pacification might be considerably facilitated, by the establishment of a common court of judicature for the decision of differences between the several nations, although such court were not to be armed with any coercive powers.
XIV. That secresy in the operations of the foreign department ought not to be endured in England; being altogether useless, and equally repugnant to the interests of liberty and to those of peace.
Proposition I.—That it is not the interest of Great Britain to have any foreign dependencies whatsoever.
The truth of this proposition will appear if we consider, 1st, That distant dependencies increase the chances of war,—
1. By increasing the number of possible subjects of dispute.
2. By the natural obscurity of title in case of new settlements or discoveries.
3. By the particular obscurity of the evidence resulting from the distance.
4. By men’s caring less about wars when the scene is remote, than when it is nearer home.
2d, That colonies are seldom, if ever, sources of profit to the mother country.
Profitable industry has five branches:—1. Production of new materials, including agricultures, mining, and fisheries; 2. Manufactures; 3. Home trade; 4. Foreign trade; 5. Carrying trade. The quantity of profitable industry that can be carried on in a country being limited by that of the capital which the country can command, it follows that no part of that quantity can be bestowed upon any one branch, but it must be withdrawn from, or withholden from, all the others. No encouragement, therefore, can be given to any one, but it must be a proportionable discouragement to all the others. Nothing can be done by government to induce a man to begin or continue to employ his capital in any one of those branches, but it must induce him in the same degree to withdraw or withhold that capital from all the rest. Of these five branches, no one is to such a degree more beneficial to the public than the rest, as that it should be worth its while to call forth the powers of law to give it an advantage. But if there were any, it would unquestionably be the improvement and cultivation of land. Every fictitious encouragement to any one of these rival branches being a proportionable discouragement to agriculture. Every encouragement to any of those branches of manufacture which produce articles that are at present sold to the colonies, is a proportionable discouragement to agriculture.
When colonies are to be made out to be beneficial to the mother country, and the quantum of the benefit is to be estimated, the mode in which the estimate is made is curious enough. An account is taken of what they export, which is almost the whole of their produce. All this, it is said, while you have the colonies, is yours; this is exactly what you lose if you lose your colonies. How much of all this is really yours? Not one single halfpenny. When they let you take it from them, do they give it you for nothing? Not they indeed; they make you pay for it just as anybody else would do. How much? Just so much as you would pay them if they belonged to themselves or to anybody else.
For maintaining colonies there are several avowed reasons, besides others which are not avowed: of the avowed reasons, by far the principal one is, the benefit of trade. If your colonies were not subject to you, they would not trade with you; they would not buy any of your goods, or let you buy any of theirs; at least, you could not be sure of their doing so: if they were subject to anybody else they would not do so; for the colonies of other nations are, you see, not suffered to trade with you. Give up your colonies, you give up so much of your trade as is carried on with your colonies. No, we do not give up any such thing,—we do not give up anything whatsoever. Trade with colonies cannot, any more than with anywhere else, be carried on without capital: just so much of our capital as is employed in our trade with the colonies—just so much of it is not employed elsewhere—just so much is either kept or taken from other trades.
Suppose, then, any branch of trade or manufacture to decline—even suppose it lost altogether—is this any permanent loss to the nation? Not the smallest. We know the worst that can happen from any such loss; the capital that would otherwise have been employed in the lost branch will be employed in agriculture. The loss of the colonies, if the loss of the colony trade were the consequence of the loss of the colonies, would at the worst be so much gain to agriculture.
Other reasons against distant dominion may be found in a consideration of the good of the government. Distant mischiefs make little impression on those on whom the remedying of them depends. A single murder committed in London makes more impression than if thousands of murders and other cruelties were committed in the East Indies. The situation of Hastings, only because he was present, excited compassion in those who heard the detail of the cruelties committed by him with indifference.
The communication of grievances cannot be too quick from those who feel them to those who have the power to relieve them. The reason which in the old writs the king is made to assign for his interfering to afford relief, is the real cause which originally gave birth to that interference,—it is one of those few truths which have contrived to make their way through the thick cloud of lies and nonsense they contain. “See what it is that these people want,” says the sovereign to the ministers of justice, “that I may not any more be troubled with their noise.” The motive assigned to the unjust judge in the Gospel, is the motive which the sovereign, who is styled the fountain of justice, is thus made to avow.
The following, then, are the final measures which ought to be pursued:—
1. Give up all the colonies.
2. Found no new colonies.
The following is a summary of the reasons for giving up all the colonies:—
i. Interest of the mother-country.
1. Saving the expense of the establishments, civil and military.
2. Saving the danger of war—1. For enforcing their obedience; 2. On account of the jealousy produced by the apparent power they confer.
3. Saving the expense of defending them, in case of war on other grounds.
4. Getting rid of the means of corruption afforded by the patronage—1. Of their civil establishments; 2. Of the military force employed in their defence.
5. Simplifying the whole frame of government, and thereby rendering a competent skill in the business of government more attainable—1. To the members of administration; 2. To the people.*
The stock of national intelligence is deteriorated by the false notions which must be kept up, in order to prevent the nation from opening its eyes and insisting upon the enfranchisement of the colonies.
At the same time, bad government results to the mother-country from the complication of interests, the indistinct views, and the consumption of time, occasioned by the load of distant dependencies.
ii. Interest of the colonies.
Diminishing the chance of bad government resulting from—1. Opposite interest; 2. Ignorance.
The real interests of the colony must be sacrificed to the imaginary interests of the mother-country. It is for the purpose of governing it badly, and for no other, that you can wish to get or to keep a colony. Govern it well, it is of no use to you. Govern it as well as the inhabitants would govern it themselves,—you must choose those to govern it whom they themselves would choose. You must sacrifice none of its interests to your own,—you must bestow as much time and attention to their interests as they would themselves: in a word, you must take those very measures, and none others, which they themselves would take. But would this be governing? and what would it be worth to you if it were?
After all, it would be impossible for you to govern them so well as they would govern themselves, on account of the distance.†
The following are approximating measures:—
1. Maintain no military force in any of the colonies.
2. Issue no moneys for the maintenance of any civil establishment in any of the colonies.
3. Nominate to the offices in the colonies as long as they permit you;—yield as soon as they contest such nomination.
4. Give general instructions to governors to consent to all acts presented to them.
5. Issue no moneys for fortifications.
Proposition II.—That it is not the interest of Great Britain to have any treaty of alliance, offensive or defensive, with any other power whatever.
Reason: saving the danger of war arising out of them.
And more especially ought not Great Britain to guarantee foreign constitutions.
Reason: saving the danger of war resulting from the odium of so tyrannical a measure.
Proposition III.—That it is not the interest of Great Britain to have any treaty with any power whatsoever, for the purpose of possessing any advantages whatsoever, in point of trade, to the exclusion of any other nation whatsoever.
That the trade of every nation is limited by the quantity of capital is so plainly and obviously true, as to challenge a place among self-evident propositions. But self-evident propositions must not expect to be easily admitted, if admitted at all, if the consequences of them clash with prevalent passions and confirmed prejudices.
Nations are composed of individuals. The trade of a nation must be limited by the same causes that limit the trade of the individual. Each individual merchant, when he has as much trade as his whole capital, and all the credit he can get by means of his capital can suffice for carrying on, can have no more. This being true of each merchant, is not less true of the whole number of merchants put together.
Many books directly recognise the proposition, that the quantity of trade a nation can carry on is limited—limited by the quantity of its capital. None dispute the proposition: but almost all, somewhere or other, proceed upon the opposite supposition; they suppose the quantity of trade to have no limitation whatsoever.
It is a folly to buy manufactured goods; wise to buy raw materials. Why? because you sell them to yourselves, or, what is still better, to foreigners, manufactured; and the manufacturer’s profit is all clear gain to you. What is here forgotten is, that the manufacturer, to carry on his business, must have a capital; and that just so much capital as is employed in that way, is prevented from being employed in any other.
Hence the perfect inutility and mischievousness of all laws and public measures of government whatsoever, for the pretended encouragement of trade—all bounties in every shape whatsoever—all non-importation agreements and engagements to consume home manufactures in preference to foreign—in any other view than to afford temporary relief to temporary distress.
But of the two—prohibitions and bounties—penal encouragements and remuneratory—the latter are beyond comparison the most mischievous. Prohibitions, except while they are fresh, and drive men at a great expense out of the employments they are embarked in, are only nugatory. Bounties are wasteful and oppressive: they force money from one man in order to pay another man for carrying on a trade, which, if it were not a losing one, there would be no need of paying him for.
What then, are all modes of productive industry alike? May not one be more profitable than another? Certainly. But the favourite one is it, in fact, more profitable than any other? That is the question and the only question that ought to be put: and that is the very question which nobody ever thinks of putting.
Were it ever put and answered, and answered ever so clearly, it never could be of any use as a ground for any permanent plan of policy. Why? Because almost as soon as one branch is known to be more profitable than the rest, so soon it ceases so to be.—Men flock to it from all other branches, and the old equilibrium is presently restored. Your merchants have a monopoly as against foreigners? True, but they have no monopoly as against one another. Men cannot, in every instance, quit the less productive branch their capitals are already employed in, to throw them into this more productive one? True—but there are young beginners as well as old stagers; and the first concern of a young beginner, who has a capital to employ in a branch of industry, is to look out for the most profitable.
Objection:—Oh! but it is manufacture that creates the demand for the productions of agriculture. You cannot, therefore, increase the productions of agriculture but by increasing manufactures. No such thing. I admit the antecedent—I deny the consequence. Increase of manufactures certainly does create an increase in the demand for the productions of agriculture. Equally certain is it that the increase of manufactures is not necessary to produce an increase in that demand. Farmers can subsist without ribbons, gauzes, or fine cambrics. Weavers of ribbons, gauzes, or fine cambrics, cannot subsist without the productions of agriculture: necessary subsistence never can lose its value. Those who produce it are themselves a market for their produce. Is it possible that provisions should be too cheap? Is there any present danger of it? Suppose (in spite of the extreme absurdity of the supposition) that provisions were growing gradually too cheap, from the increase of the quantity produced, and the want of manufacturers to consume them, what would be the consequence? The increasing cheapness would increase the facility and disposition to marry: it would thence increase the population of the country; and the children thus produced, eating as they grew up, would keep down this terrible evil of a superabundance of provisions.
Provisions, the produce of agriculture, constantly and necessarily produce a market for themselves. The more provisions a man raises, over and above what is necessary for his own consumption, the more he has to give to others, to induce them to provide him with whatever, besides provisions, he chooses to have. In a word, the more he has to spare, the more he has to give to manufacturers; who, by taking it from him, and paying him with the produce of their labours, afford the encouragement requisite for the productions of the fruits of agriculture.
It is impossible, therefore, that you can ever have too much agriculture. It is impossible that while there is ground untilled, or ground that might be better tilled than it is, that any detriment should ensue to the community from the withholding or withdrawing capital from any other branch of industry, and employing it in agriculture. It is impossible, therefore, that the loss of any branch of trade can be productive of any detriment to the community, excepting always the temporary distress experienced by the individuals concerned in it for the time being, when the decline is a sudden one.
The following are the measures the propriety of which results from the above principles:—
1. That no treaties granting commercial preferences should be made.
2. That no wars should be entered into for compelling such treaties.
3. That no alliances should be contracted for the sake of purchasing them.
4. That no encouragements should be given to particular branches of trade, by—
(1.) Prohibition of rival manufactures.
(2.) Taxation of rival manufactures.
(3.) Bounties* on the trade meant to be favoured.
5. That no treaties should be entered into insuring commercial preferences.
They are useless as they add nothing to the mass of wealth; they only influence the direction of it.
Proposition IV.—That it is not the interest of Great Britain to keep up any naval force beyond what may be sufficient to defend its commerce against pirates.
It is unnecessary, except for the defence of the colonies, or for the purposes of war, undertaken either for the compelling of trade or the formation of commercial treaties.
Proposition V.—That it is not the interest of Great Britain to keep on foot any regulations whatsoever of distant preparation for the augmentation or maintenance of its naval force—such as the navigation act, bounties on the Greenland trade, and other trades regarded as nurseries for scamen.
This proposition is a necessary consequence of the foregoing one.
Propositions VI. VII. VIII. IX. & X.
Propositions similar to the foregoing are equally true applied to France.
Proposition XI.—That supposing Great Britain and France thoroughly agreed, the principal difficulties would be removed to the establishment of a plan of general and permanent pacification for all Europe.
Proposition XII.—That for the maintenance of such a pacification, general and perpetual treaties might be formed, limiting the number of troops to be maintained.†
If the simple relation of a single nation with a single other nation be considered, perhaps the matter would not be very difficult. The misfortune is, that almost everywhere compound relations are found. On the subject of troops,—France says to England, Yes I would voluntarily make with you a treaty of disarming, if there were only you; but it is necessary for me to have troops to defend me from the Austrians. Austria might say the same to France; but it is necessary to guard against Prussia, Russia, and the Porte. And the like allegation might be made by Prussia with regard to Russia.
Whilst as to naval forces, if it concerned Europe only, the difficulty might perhaps not be very considerable. To consider France, Spain and Holland, as making together a counterpoise to the power of Britain,—perhaps on account of the disadvantages which accompany the concert between three separate nations, to say nothing of the tardiness and publicity of procedures under the Dutch Constitution,—perhaps England might allow to all together a united force equal to half or more than its own.
An agreement of this kind would not be dishonourable. If the covenant were on one side only, it might be so. If it regard both parties together, the reciprocity takes away the acerbity. By the treaty which put an end to the first Punic war, the number of vessels that the Carthaginians might maintain was limited. This condition was it not humiliating? It might be: but if it were, it must have been because there was nothing correspondent to it on the side of the Romans. A treaty which placed all the security on one side, what cause could it have had for its source? It could only have had one—that is the avowed superiority of the party thus incontestably secured,—such a condition could only have been a law dictated by the conqueror to the party conquered. The law of the strongest. None but a conqueror could have dictated it; none but the conquered would have accepted it.
On the contrary, whatsoever nation should get the start of the other in making the proposal to reduce and fix the amount of its armed force, would crown itself with everlasting honour. The risk would be nothing—the gain certain. This gain would be, the giving an incontrovertible demonstration of its own disposition to peace, and of the opposite disposition in the other nation in case of its rejecting the proposal.
The utmost fairness should be employed. The nation addressed should be invited to consider and point out whatever further securities it deemed necessary, and whatever further concessions it deemed just.
The proposal should be made in the most public manner:—it should be an address from nation to nation. This, at the same time that it conciliated the confidence of the nation addressed, would make it impracticable for the government of that nation to neglect it, or stave it off by shifts and evasions. It would sound the heart of the nation addressed. It would discover its intentions, and proclaim them to the world.
The cause of humanity has still another resource. Should Britain prove deaf and impracticable, let France, without conditions, emancipate her colonies, and break up her marine. The advantage even upon this plan would be immense, the danger none. The colonies I have already shown are a source of expense, not of revenue,—of burthen to the people, not of relief. This appears to be the case, even upon the footing of those expenses which appear upon the face of them to belong to the colonies, and are the only ones that have hitherto been set down to their account. But in fact the whole expense of the marine belongs also to that account, and no other. What other destination has it? What other can it have? None. Take away the colonies, what use would there be for a single vessel, more than the few necessary in the Mediterranean to curb the pirates.
In case of a war, where at present (1789) would England make its first and only attack upon France? In the colonies. What would she propose to herself from success in such an attack? What but the depriving France of her colonies. Were these colonies—these bones of contention—no longer hers, what then could England do? what could she wish to do?
There would remain the territory of France; with what view could Britain make any attack upon it in any way? Not with views of permanent conquest;—such madness does not belong to our age. Parliament itself, one may venture to affirm, without paying it any very extraordinary compliment, would not wish it. It would not wish it, even could it be accomplished without effort on our part, without resistance on the other. It would not, even though France herself were to solicit it. No parliament would grant a penny for such a purpose. If it did, it would not be a parliament a month. No king would lend his name to such a project. He would be dethroned as surely and as deservedly as James the Second. To say, I will be king of France, would be to say, in other words, I will be absolute in England.
Well, then, no one would dream of conquest. What other purpose could an invasion have? The plunder and destruction of the country. Such baseness is totally repugnant, not only to the spirit of the nation, but to the spirit of the times. Malevolence could be the only motive—rapacity could never counsel it; long before an army could arrive anywhere, everything capable of being plundered would be carried off. Whatever is portable, could be much sooner carried off by the owners, than by any plundering army. No expedition of plunder could ever pay itself.*
Such is the extreme folly, the madness of war: on no supposition can it be otherwise than mischievous, especially between nations circumstanced as France and England. Though the choice of the events were absolutely at your command, you could not make it of use to you. If unsuccessful, you may be disgraced and ruined: if successful, even to the height of your wishes, you are still but so much the worse. You would still be so much the worse, though it were to cost you nothing. For not even any colony of your own planting, still less a conquest of your own making, will so much as pay its own expenses.
The greatest acquisitions that could be conceived would not be to be wished for,—could they even be attained with the greatest certainty, and without the least expense. In war, we are as likely not to gain as to gain—as likely to lose as to do either: we can neither attempt the one, nor defend ourselves against the other, without a certain and most enormous expense.
Mark well the contrast. All trade is in its essence advantageous—even to that party to whom it is least so. All war is in its essence ruinous; and yet the great employments of government are to treasure up occasions of war, and to put fetters upon trade.
Ask an Englishman what is the great obstacle to a secure and solid peace, he has his answer ready:—It is the ambition, perhaps he will add, the treachery of France. I wish the chief obstacle to a plan for this purpose were the dispositions and sentiments of France!—were that all, the plan need not long wait for adoption.
Of this visionary project, the most visionary part is without question that for the emancipation of distant dependencies. What will an Englishman say, when he sees two French ministers* of the highest reputation, both at the head of their respective departments, both joining in the opinion, that the accomplishment of this event, nay the speedy accomplishment of it, is inevitable, and one of them scrupling not to pronounce it as eminently desirable.
It would only be the bringing things back on these points to the footing they were on before the discovery of America. Europe had then no colonies—no distant garrisons—no standing armies. It would have had no wars but for the feudal system—religious antipathy—the rage of conquest—and the uncertainties of succession. Of these four causes, the first is happily extinct everywhere—the second and third almost everywhere, and at any rate in France and England—the last might, if not already extinguished, be so with great case.
The moral feelings of men in matters of national morality are still so far short of perfection, that in the scale of estimation, justice has not yet gained the ascendency over force. Yet this prejudice may, in a certain point of view, by accident, be rather favourable to this proposal than otherwise. Truth, and the object of this essay, bid me to say to my countrymen, it is for you to begin the reformation—it is you that have been the greatest sinners. But the same considerations also lead me to say to them, you are the strongest among nations: though justice be not on your side, force is; and it is your force that has been the main cause of your injustice. If the measure of moral approbation had been brought to perfection, such positions would have been far from popular, prudence would have dictated the keeping them out of sight, and the softening them down as much as possible.
Humiliation would have been the effect produced by them on those to whom they appeared true—indignation on those to whom they appeared false. But, as I have observed, men have not yet learned to tune their feelings in unison with the voice of morality in these points. They fell more pride in being accounted strong, than resentment at being called unjust: or rather, the imputation of injustice appears flattering rather than otherwise, when coupled with the consideration of its cause. I feel it in my own experience; but if I, listed as I am as the professed and hitherto the only advocate in my own country in the cause of justice, set a less value on justice than is its due, what can I expect from the general run of men?
Proposition XIII.—That the maintenance of such a pacification might be considerably facilitated, by the establishment of a common court of judicature, for the decision of differences between the several nations, although such court were not to be armed with any coercive powers.
It is an observation of somebody’s, that no nation ought to yield any evident point of justice to another. This must mean, evident in the eyes of the nation that is to judge,—evident in the eyes of the nation called upon to yield. What does this amount to? That no nation is to give up anything of what it looks upon as its rights—no nation is to make any concessions. Wherever there is any difference of opinion between the negociators of two nations, war is to be the consequence.
While there is no common tribunal, something might be said for this. Concession to notorious injustice invites fresh injustice.
Establish a common tribunal, the necessity for war no longer follows from difference of opinion. Just or unjust, the decision of the arbiters will save the credit, the honour of the contending party.
Can the arrangement proposed be justly styled visionary, when it has been proved of it—that
1. It is the interest of the parties concerned.
2. They are already sensible of that interest.
3. The situation it would place them in is no new one, nor any other than the original situation they set out from.
Difficult and complicated conventions have been effectuated: for examples, we may mention,—
Why should not the European fraternity subsist, as well as the German diet or the Swiss league? These latter have no ambitious views. Be it so; but is not this already become the case with the former?
How then shall we concentrate the approbation of the people, and obviate their prejudices?
One main object of the plan is to effectuate a reduction, and that a mighty one, in the contributions of the people. The amount of the reduction for each nation should be stipulated in the treaty; and even previous to the signature of it, laws for the purpose might be prepared in each nation, and presented to every other, ready to be enacted, as soon as the treaty should be ratified in each state.
By these means the mass of the people, the part most exposed to be led away by prejudices, would not be sooner apprized of the measure, than they would feel the relief it brought them. They would see it was for their advantage it was calculated, and that it could not be calculated for any other purpose.
The concurrence of all the maritime powers, except England, upon a former occasion, proved two points: the reasonableness of that measure itself, and the weakness of France in comparison with England. It was a measure not of ambition, but of justice—a law made in favour of equality—a law made for the benefit of the weak. No sinister point was gained, or attempted to be gained by it. France was satisfied with it. Why? because she was weaker than Britain; she could have no other motive—on no other supposition could it have been of any advantage to her. Britain was vexed at it. Why? For the opposite reason: she could have no other.
Oh my countrymen! purge your eyes from the film of prejudice—extirpate from your hearts the black specks of excessive jealousy, false ambition, selfishness, and insolence. The operations may be painful; but the rewards are glorious indeed! As the main difficulty, so will the main honour be with you.
What though wars should hereafter arise? the intermediate savings will not the less be so much clear gain.
Though, in the generating of the disposition for war, unjust ambition has doubtless had by far too great a share, yet jealousy, sincere and honest jealousy, must be acknowledged to have had a not inconsiderable one. Vulgar prejudice, fostered by passion, assigns the heart as the seat of all the moral diseases it complains of; but the principal and more frequent seat is really the head: it is from ignorance and weakness that men deviate from the path of rectitude, more frequently than from selfishness and malevolence. This is fortunate;—for the power of information and reason, over error and ignorance is much greater and much surer than that of exhortation, and all the modes of rhetoric, over selfishness and malevolence.
It is because we do not know what strong motives other nations have to be just, what strong indications they have given of the disposition to be so, how often we ourselves have deviated from the rules of justice,—that we take for granted, as an indisputable truth, that the principles of injustice are in a manner interwoven into the very essence of the hearts of other men.
The diffidence, which forms part of the character of the English nation, may have been one cause of this jealousy. The dread of being duped by other nations—the notion that foreign heads are more able, though at the same time foreign hearts are less honest than our own, has always been one of our prevailing weaknesses. This diffidence has perhaps some connexion with the mauvaise honte which has been remarked as commonly showing itself in our behavour, and which makes public speaking and public exhibition in every line a task so much more formidable to us than to other people.
This diffidence may, perhaps, in part be accounted for, from our living less in society, and accustoming ourselves less to mixed companies, than the people of other nations.
But the particular cast of diffidence in question, the apprehension of being duped by foreign powers, is to be referred in part, and perhaps principally, to another cause—the jealousy and slight opinion we entertain of our ministers and public men; we are jealous of them as our superiors, contending against us in the perpetual struggle for power; we are diffident of them as being our fellow-countrymen, and of the same mould as ourselves.
Jealousy is the vice of narrow minds;—confidence the virtue of enlarged ones. To be satisfied that confidence between nations is not out of nature where they have worthy ministers, one need but read the account of the negotiation between De Wit and Temple, as given by Hume. I say, by Hume:—for as it requires negotiators like De Wit and Temple to carry on such a negotiation in such a manner, so it required a historian like Hume to do it justice. For the vulgar among historians know no other receipt for writing that part of history than the finding out whatever are the vilest and basest motives capable of accounting for men’s conduct in the situation in question, and then ascribing it to those motives without ceremony and without proof.
Temple and De Wit, whose confidence in each other was so exemplary and so just—Temple and De Wit were two of the wisest as well as most honourable men in Europe. The age which produced such virtue, was, however, the age of the pretended popish plot, and of a thousand other enormities which cannot now be thought of without horror. Since then, the world has had upwards of a century to improve itself in experience, in reflection, in virtue. In every other line its improvements have been immense and unquestioned. Is it too much to hope that France and England might produce not a Temple and a De Wit,—virtue so transcendent as theirs would not be necessary,—but men who, in happier times, might achieve a work like theirs with less extent of virtue.
Such a Congress or Diet might be constituted by each power sending two deputies to the place of meeting; one of these to be the principal, the other to act as an occasional substitute.
The proceedings of such Congress or Diet should be all public.
Its power would consist,—1. In reporting its opinion;
2. In causing that opinion to be circulated in the dominions of each state.
Manifestoes are in common usage. A manifesto is designed to be read either by the subjects of the state complained of, or by other states, or by both. It is an appeal to them. It calls for their opinion. The difference is, that in that case nothing of proof is given; no opinion regularly made known.
The example of Sweden is alone sufficient to show the influence which treaties, the acts of nations, may be expected to have over the subjects of the several nations, and how far the expedient in question deserves the character of a weak one, or the proposal for employing and trusting to it, that of a visionary proposal.
The war commenced by the king of Sweden against Russia, was deemed by his subjects, or at least a considerable part of them, offensive, and as such, contrary to the constitution established by him with the concurrence of the states. Hence a considerable part of the army either threw up their commissions or refused to act; and the consequence was, the king was obliged to retreat from the Russian frontier and call a diet.
This was under a government, commonly, though not truly, supposed to be changed from a limited monarchy, or rather aristocracy, to a despotic monarchy. There was no act of any recognised and respected tribunal to guide and fix the opinion of the people. The only document they had to judge from was a manifesto of the enemy, couched in terms such as resentment would naturally dictate, and therefore none of the most conciliating,—a document which had no claim to be circulated, and of which the circulation, we may be pretty well assured, was prevented as much as it was in the power of the utmost vigilance of the government to prevent it.
3. After a certain time, in putting the refractory state under the ban of Europe.
There might, perhaps, be no harm in regulating, as a last resource, the contingent to be furnished by the several states for enforcing the decrees of the court. But the necessity for the employment of this resource would, in all human probability, be superseded for ever by having recourse to the much more simple and less burthensome expedient, of introducing into the instrument by which such court was instituted, a clause guaranteeing the liberty of the press in each state, in such sort, that the diet might find no obstacle to its giving, in every state, to its decrees, and to every paper whatever which it might think proper to sanction with its signature, the most extensive and unlimited circulation.
Proposition XIV.—That secresy in the operations of the foreign department in England ought not to be endured, being altogether useless, and equally repugnant to the interests of liberty and peace.
The existence of the rule which throws a veil of secresy over the transactions of the Cabinet with foreign powers, I shall not take upon me to dispute—my objection is to the propriety of it.
Being asked in the House of Lords by Lord Stormont* about secret articles, the minister for foreign affairs refuses to answer. I blame him not. Subsisting rules, it seems to be agreed, forbid reply. They throw a general veil of secresy over the transactions of the Cabinet with foreign powers. I blame no man for the fault of the laws. It is these laws that I blame as repugnant to the spirit of the constitution, and incompatible with good government.
I take at once the boldest and the broadest ground—I lay down two propositions:—
1. That in no negociation, and at no period of any negociation, ought the negociations of the cabinet in this country to be kept secret from the public at large; much less from parliament and after inquiry made in parliament.†
2. That whatever may be the case with preliminary negociations, such secresy ought never to be maintained with regard to treaties actually concluded.
In both cases, to a country like this, such secresy is equally mischievous and unnecessary.
It is mischievous. Over measures of which you have no knowledge, you can apply no controul. Measures carried on without your knowledge you cannot stop,—how rumous soever to you, and how strongly soever you would disapprove of them if you knew them. Of negociations with foreign powers carried on in time of peace, the principal terminations are treaties of alliance, offensive or defensive, or treaties of commerce. But by one accident or other, everything may lead to war.
That in new treaties of commerce as such, there can be no cause for secresy, is a proposition that will hardly be disputed. Only such negociations, like all others, may eventually lead to war, and everything connected with war, it will be said, may come to require secresy.
But rules which admit of a minister’s plunging the nation into a war against its will, are essentially mischievous and unconstitutional.
It is admitted that ministers ought not to have it in their power to impose taxes on the nation against its will. It is admitted that they ought not to have it in their power to maintain troops against its will. But by plunging it into war without its knowledge they do both.
Parliament may refuse to carry on a war after it is begun:—Parliament may remove and punish the minister who has brought the nation into a war.
Sorry remedies these; add them both together, their efficacy is not worth a straw. Arrestment of the evil, and punishment of the authors, are sad consolations for the mischief of a war, and of no value as remedies in comparison with prevention. Aggressive war is a matter of choice: defensive, of necessity. Refusal of the means of continuing a war is a most precarious remedy, a remedy only in name. What, when the enemy is at your doors, refuse the materials for barricading them?
Before aggression, war or no war depends upon the aggressor;—once begun, the party aggrieved acquires a vote: He has his negative upon every plan for terminating the war.—What is to be done? Give yourself up without resistance to the mercy of a justly exasperated enemy? But this or the continuance of the war, is all the choice that is now left. In what state of things can this remedy be made to serve? Are you unsuccessful?—the remedy is inapplicable. Are you successful?—nobody will call for it.
Punishment of the authors of the war, punishment whatever it may be to the personal adversaries of the ministers, is no satisfaction to the nation. This is self-evident; but what is closer to the purpose and not less true, is, that in a case like this, the fear of punishment on such an account is no check to them: of a majority in parliament they are in possession, or they would not be ministers. That they should be abandoned by this majority is not in the catalogue of events that ought to be looked upon as possible: but between abandoning them and punishing them, there is a wide difference. Lord North was abandoned in the American war: he was not punished for it. His was an honest error in judgment, unstained by any malâ fide practice, and countenanced by a fair majority in parliament. And so may any other impolitic and unjust war be. This is not a punishing age. If bribe-taking, oppression, peculation, duplicity, treachery, every crime that can be committed by statesmen sinning against conscience, produce no desire to punish, what dependence can be placed on punishment in a case where the mischief may so easily happen without any ground for punishment? Mankind are not yet arrived at that stage in the track of civilization. Foreign nations are not yet considered as objects susceptible of an injury. For the citizens of other civilized nations, we have not so much feeling as for our negroes. There are instances in which ministers have been punished for making peace* —there are none where they have been so much as questioned for bringing the nation into war; and if punishment had been ever applied on such an occasion, it would be not for the mischief done to the foreign nation, but purely for the mischief brought upon their own; not for the injustice, but purely for the imprudence.
It has never been laid down as a rule that you should pay any regard to foreign nations: it has never been laid down that you should stick at anything which would give you an advantage in your dealings with foreign nations. On what ground could a minister be punished for a war, even the most unsuccessful, brought on by any such means? I did my best to serve you, he would say—the worse the measure was for the foreign nation, the more I took upon me: the greater therefore the zeal I showed for your cause: the event has proved unfavourable. Are zeal and misfortune to be represented as crimes?
A war unjust on the part of our own nation, by whose ministers it is brought on, can never be brought on but in pursuit of some advantage which, were it not for the injustice towards the foreign nation it would be for our interests to pursue. The injustice and the danger of retaliation being on all hands looked upon as nothing, the plea of the minister would always be,—“It was your interest I was pursuing.” And the uninformed and unreflecting part of the nation, that is, the great body of the nation would echo to him,—“Yes, it was our interest you were preserving.” The voice of the nation on these subjects can only be looked for in newspapers. But on these subjects the language of all newspapers is uniform:—“It is we that are always in the right, without a possibility of being otherwise. Against us other nations have no rights. If according to the rules of judging between individual and individual, we are right—we are right by the rules of justice: if not, we are right by the laws of patriotism, which is a virtue more respectable than justice.”—Injustice, oppression, fraud, lying, whatever acts would be crimes, whatever habits would be vices, if manifested in the pursuit of individual interests, when manifested in pursuit of national interests, become sublimated into virtues. Let any man declare who has ever read or heard an English newspaper, whether this be not the constant tenor of the notions they convey. Party on this one point makes no difference. However hostile to one another on all other points, on this they have never but one voice—they write with the utmost harmony. Such are the opinions, and to these opinions the facts are accommodated as of course. Who would blush to misrepresent, when misrepresentation is a virtue?
But newspapers, if their voice make but a small part of the voice of the people, the instruction they give makes on these subjects the whole of the instruction which the people receive.
Such being the national propensity to error on these points, and to error on the worst side, the danger of parliamentary punishment for misconduct of this kind must appear equivalent to next to nothing, even in the eyes of an unconcerned and cool spectator. What must it appear then in the eyes of ministers themselves, acting under the seduction of self-partiality, and hurried on by the tide of business? No; the language which a minister on such occasions will hold to himself will be uniformly this,—“In the first place what I do is not wrong: in the next place, if it were, nothing should I have to fear from it.”
Under the present system of secresy, ministers have, therefore, every seduction to lead them into misconduct; while they have no check to keep them out of it. And what species of misconduct? That in comparison of which all others are but peccadillos. Let a minister throw away £30,000 or £40,000 in pensions to his creatures. Let him embezzle a few hundred thousand for himself. What is that to fifty or a hundred millions, the ordinary burthen of a war? Observe the consequence. This is the department of all others in which the strongest checks are needful; at the same time, thanks to the rules of secresy of all the departments, this is the only one in which there are no checks at all. I say, then, the conclusion is demonstrated. The principle which throws a veil of secresy over the proceedings of the foreign department of the cabinet is pernicious in the highest degree, pregnant with mischiefs superior to everything to which the most perfect absence of all concealment could possibly give rise.
There still remains a sort of inexplicit notion which may present itself as secretly furnishing an argument on the other side. Such is the condition of the British nation: peace and war may be always looked upon as being to all human probability in good measure in her power. When the worst comes to the worst, peace may always be had by some unessential sacrifice. I admit the force of the argument: what I maintain is that it operates in my favour. Why? It depends upon two propositions,—the matchless strength of this country, and the uselessness of her foreign dependencies. I admit both. But both operate as arguments in my favour. Her strength places her above the danger of surprise, and above the necessity of having recourse to it to defend herself. The uselessness of her foreign dependencies prove a fortiori, the uselessness of engaging in wars for their protection and defence. If they are not fit to keep without war, much less are they worth keeping at the price of war. The inutility of a secret cabinet is demonstrated by this short dilemma. For offensive measures, cabinet secresy can never be necessary to this nation: for defence it can never be necessary to any.
My persuasion is that there is no state whatever in which any inconveniences capable of arising from publicity in this department would not be greatly overbalanced by the advantages; be the state ever so great or ever so small; ever so strong or ever so weak; be its form of government pure or mixed, single or confederated, monarchical, aristocratical, or democratical. The observations already given seem in all these cases sufficient to warrant the conclusion.
But in a nation like Britain, the safety of publicity, the inutility of secresy in all such business, stands upon peculiar grounds. Stronger than any two other nations, much stronger of course than any one, its superiority deprives it of all pretence of necessity of carrying points by surprise. Clandestine surprise is the resource of knavery and fear, of unjust ambition combined with weakness. Her matchless power exempts her from the one; her interest, if her servants could be brought to be governed by her evident interests, would forbid the other.
Taking the interest of the first servant of the state as distinct from and opposite to the nation, clandestinity may undoubtedly be, in certain cases, favourable to the projects of sceptred thieves and robbers. Without taking the precautions of a thief, the Great Frederic might probably enough not have succeeded in the enterprise of stealing Silesia from her lawful sovereign. Without an advantage of this sort, the triple gang might, perhaps, not have found it quite so easy to secure what they stole from Poland. Whether there can or cannot exist occasions on which it might, in this point of view, be the interest of a king of Great Britain to turn highwayman, is a question I shall waive: but a proposition I shall not flinch from is, that it never can be the interest of the nation to abet him in it. When those sceptred sinners sold themselves to the service of Mammon, they did not serve him for nought: the booty was all their own. Were we (I speak as one of the body of the nation) to assist our king in committing a robbery upon France, the booty would be his. He would have the naming to the new places, which is all the value that in the hands of a British robber such booty can be of to anybody. The privilege of paying for the horse and pistols is all that would be ours. The booty would be employed in corrupting our confidential servants: and this is the full and exact amount of what we should get by it.
Conquests made by New Zealanders have some sense in them; while the conquered fry, the conquerers fatten. Conquests made by the polished nations of antiquity,—conquests made by Greeks and Romans,—had some sense in them. Lands, moveables, inhabitants, everything went into the pocket. The invasions of France in the days of the Edwards and the Henrys, had a rational object. Prisoners were taken, and the country was stripped to pay their ransom. The ransom of a single prisoner, a Duke of Orleans, exceeded one-third of the national revenue of England.
Conquests made by a modern despot of the continent have still some sense in them. The new property being continguous, is laid on to his old property; the inhabitants, as many as he thinks fit to set his mark upon, go to increase his armies; their substance, as much as he thinks fit to squeeze from them, goes into his purse.
Conquests made by the British nation would be violations of common sense, were there no such thing as justice. They are bungling imitations of miserable originals, bating the essential circumstances. Nothing but confirmed blindness and stupidity can prompt us to go on imitating Alexander and Cæsar, and the New Zelanders, and Catherine and Frederic, without the profit.
If it be the king alone who gets the appointment to the places, it is a part of the nation, it may be said, that gets the benefit of filling them. A precious lottery! Fifty or one hundred millions the cost of the tickets. So many years purchase of ten or twenty thousand a-year, the value of the prizes. This if the scheme succeed:—what if it fail?
I do not say there are no sharers in the plunder:—it is impossible for the head of a gang to put the whole of it into his own pocket. All I contend for is, that robbery by wholesale is not so profitable as by retail:—if the whole gang together pick the pockets of strangers to a certain amount, the ringleaders pick the pockets of the rest to a much greater. Shall I or shall I not succeed in persuading my countrymen that it is not their interest to be thieves?
“Oh, but you mistake!” cries somebody, “we do not now make war for conquests, but for trade.” More foolish still. This is a still worse bargain than before. Conquer the whole world, it is impossible you should increase your trade one halfpenny:—it is impossible you should do otherwise than diminish it. Conquer little or much, you pay for it by taxes:—but just so much as a merchant pays in taxes, just so much he is disabled from adding to the capital he employs in trade. Had you two worlds to trade with, you could only trade with them to the amount of your capital, and what credit, you might meet with on the strength of it. This being true of each trader, is so of all traders. Find a fallacy in this short argument if you can. If you obtained your new right of trading given you for nothing, you would not be a halfpenny the richer: if you paid for them by war or preparations for war; by just so much as you paid for these you would be the poorer.
The good people of England, along with the right of self-government, conquered prodigious right of trade. The revolution was to produce for them not only the blessings of security and power, but immense and sudden wealth. Year has followed after year, and to their endless astonishment, the progress to wealth has gone on no faster than before. One piece of good fortune still wanting, they have never thought of:—that on the day their shackles were knocked off, some kind sylph should have slipped a few thousand pounds into every man’s pocket. There is no law against my flying to the moon. Yet I cannot get there. Why? Because I have no wings. What wings are to flying, capital is to trade.
There are two ways of making war for trade,—forcing independent nations to let you trade with them, and conquering nations, or pieces of nations, to make them trade with you. The former contrivance is to appearance the more easy, and the policy of it the more refined. The latter is more in the good old way, and the king does his own business and the nation’s at the same time. He gets the naming to the places: and the nation cannot choose but join with him, being assured that it is all for the sake of getting them the trade. The places he lays hold of, good man, only out of necessity, and that they may not go a-begging:—on his own account, he has no more mind for them than a new-made bishop for the mitre, or a new-made speaker for the chair. To the increase of trade, both these plans of war equally contribute. What you get in both cases is the pleasure of the war.
The legal right of trading to part of America was conquered by France from Britain in the last war. What have they got by it? They have got Tobago, bankruptcy, and a revolution, for their fifty millions. Ministers, who to account for the bankruptcy are forced to say something about the war, call it a national one:—the king has not got by it,—therefore the nation has. What has it got? A fine trade, were there but capital to carry it on. With such room for trade, how comes there to be no more of it? This is what merchants and manufacturers are putting themselves to the torture to account for. The sylph so necessary elsewhere, was still more necessary to France; since, over and above her other work, there was the fifty millions spent in powder and shot to replace.
The King of France, however, by getting Tobago, probably obtained two or three thousand pounds worth of places to give away. This is what he got, and this is all that anybody got for the nation’s fifty millions. Let us go on as we have begun, strike a bold stroke, take all their vessels we can lay hold of without a declaration of war, and who knows but what we may get it back again. With the advantages we now have over them, five times the success they are so pleased with, would be but a moderate expectation. For every fifty millions thus laid out, our king would get in places to the amount, not of two or three thousand pounds only, but say of ten, fifteen, or twenty thousand pounds. All this would be prodigious glory—and fine paragraphs and speeches, thanksgivings, and birth-day odes, might be sung and said for it: but for economy, I would much rather give the king new places to the same amount at home, if at this price his ministers would sell us peace.
The conclusion is, that as we have nothing to fear from any other nation or nations, nor want anything from other nations, we can have nothing to say to other nations, nor to hear from them,—that might not be as public as any laws. What then is the veil of secresy that enwraps the proceedings of the cabinet? A mere cloak for wickedness and folly—a dispensation to ministers to save them from the trouble of thinking—a warrant for playing all manner of mad and silly pranks, unseen and uncontrouled—a licence to play at hazard with their fellows abroad, staking our lives and fortunes upon the throw.
What, then, is the true use and effect of secresy? That the prerogatives of place may furnish an aliment to petty vanity,—that the members of the circulation may have as it were a newspaper to themselves,—that under favour of the monopoly, ignorance and incapacity may put on airs of wisdom,—that a man, unable to write or speak what is fit to be put into a newspaper, may toss up his head and say, I don’t read newspapers—as if a parent were to say I don’t trouble my head about schoolmasters,—and that a minister, secure from scrutiny in that quarter, may have the convenient opportunity, upon occasion, of filling the posts with obsequious cyphers, instead of effective men:—anything will do to make a minister whose writing may be written for him, and whose duty in speaking consists in silence.
This much must be confessed:—if secresy as against the nation be useless and pernicious to the nation, it is not useless and pernicious with regard to its servants. It forms part of the douceurs of office—a perquisite which will be valued in proportion to the insignificance of their characters and the narrowness of their views. It serves to pamper them up with notions of their own importance, and to teach the servants of the people to look down upon their masters.
Oh!—but if everything that were written were liable to be made public, were published, who would treat with you abroad? Just the same persons as treat with you at present. Negotiations, for fear of misrepresentation, would perhaps be committed somewhat more to writing than at present;—and where would be the harm? The king and his ministers might not have quite such such copious accounts, true or false, of the tittle-tattle of each court: or they must put into different hands the tittle-tattle, and the real business. And suppose your head servants were not so minutely acquainted with the mistresses and buffoons of kings and their ministers,—what matters it to you as a nation, who have no intrigues to carry on, no petty points to compass?
It were an endless task to fill more pages with the shadows that might be conjured up in order to be knocked down. I leave that task to any that will undertake it. I challenge party men—I invite the impartial lovers of their country and mankind to discuss the question—to ransack the stores of history, and imagination as well as history, for cases actual or possible, in which the want of secrecy in this line of business can be shown to be attended with any substantial prejudice.
As to the constitution, the question of cabinet-secresy having never been tried by the principles of the constitution, has never received a decision. The good old Tudor and Stuart principles have been suffered to remain unquestioned here. Foreign politics are questions of state. Under Elizabeth and James, nothing was to be inquired into—nothing was to be known—everything was matter of state. On other points the veil has been torn away: but with regard to these, there has been a sort of tacit understanding between ministers and people.
Hitherto war has been the national rage: peace has always come too soon,—war too late. To tie up the ministers’ hands and make them continually accountable, would be depriving them of numberless occasions of seizing those happy advantages that lead to war: it would be lessening the people’s chance of their favourite amusement. For these hundred years past, ministers, to do them justice, have generally been more backward than the people—the great object has rather been to force them into war, than to keep them out of it. Walpole and Newcastle were both forced into war.
It admits of no doubt, if we are really for war, and fond of it for its own sake, we can do no better than let things continue as they are. If we think peace better than war, it is equally certain that the law of secresy cannot be too soon abolished.
Such is the general confusion of ideas—such the power of the imagination—such the force of prejudice—that I verily believe the persuasion is not an uncommon one;—so clear in their notions are many worthy gentlemen, that they look upon war, if successful, as a cause of opulence and prosperity. With equal justice might they look upon the loss of a leg as a cause of swiftness.
Well, but if it be not directly the cause of opulence, it is indirectly; from the successes of war, come, say they, our prosperity, our greatness; thence the respect paid to us by Foreign Powers—thence our security: and who does not know how necessary security is to opulence?
No; war is, in this way, just as unfavourable to opulence as in the other. In the present mode of carrying on war—a mode which it is in no man’s power to depart from, security is in proportion to opulence. Just so far then as war is, by its direct effects, unfavourable to opulence,—just so far is it unfavourable to security.
Respect is a term I shall beg leave to change; respect is a mixture of fear and esteem, but for constituting esteem, force is not the instrument, but justice. The sentiment really relied upon for security is fear. By respect then is meant, in plain English, fear. But in a case like this, fear is much more adverse than favourable to security. So many as fear you, join against you till they think they are too strong for you, and then they are afraid of you no longer;—meantime they all hate you, and jointly and severally they do you as much mischief as they can. You, on your part, are not behindhand with them. Conscious or not conscious of your own bad intentions, you suspect theirs to be still worse. Their notion of your intentions is the same. Measures of mere self-defence are naturally taken for projects of aggression. The same causes produce, on both sides, the same effects; each makes haste to begin for fear of being forestalled. In this state or things, if on either side there happen to be a minister or a would-be minister, who has a fancy for war, the stroke is struck, and the tinder catches fire.
At school, the strongest boy may perhaps be the safest. Two or more boys are not always in readiness to join against one. But though this notion may hold good in an English school, it will not bear transplanting upon the theatre of Europe.
Oh! but if your neighbours are really afraid of you, their fear is of use to you in another way—you get the turn of the scale in all disputes. Points that are at all doubtful, they give up to you of course. Watch the moment, and you may every now and then gain points that do not admit of doubt. This is only the former old set of fallacies exhibited in a more obscure form, and which, from their obscurity only, can show as new. The fact is, as has been already shown, there is no nation that has any points to gain to the prejudice of any other. Between the interests of nations, there is nowhere any real conflict: if they appear repugnant anywhere, it is only in proportion as they are misunderstood. What are these points? What points are these which, if you had your choice, you would wish to gain of them? Preferences in trade have been proved to be worth nothing,—distant territorial acquisitions have been proved to be worth less than nothing. When these are out of the question, what other points are there worth gaining by such means.
Opulence is the word I have first mentioned; but opulence is not the word that would be first pitched upon. The repugnancy of the connexion between war and opulence is too glaring:—the term opulence brings to view an idea too simple, too intelligible, too precise. Splendour, greatness, glory, these are terms better suited to the purpose. Prove first that war contributes to splendour and greatness, you may persuade yourself it contributes to opulence, because when you think of splendour you think of opulence. But splendour, greatness, glory, all these fine things, may be produced by useless success, and unprofitable and enervating extent of dominion obtained at the expense of opulence; and this is the way in which you may manage so as to prove to yourself, that the way to make a man run the quicker is to cut off one of his legs. And true enough it is, that a man who has had a leg cut off, and the stump healed, may hop faster than a man who lies in bed with both legs broken, can walk. And thus you may prove that Britain is in a better case after the expenditure of a glorious war, than if there had been no war; because France or some other country, was put by it into a still worse condition.
In respect, therefore, of any benefit to be derived in the shape of conquest, or of trade—of opulence or of respect—no advantage can be reaped by the employment of the unnecessary, the mischievous, and unconstitutional system of clandestinity and secresy in negotiation.
APPENDIX.* —JUNCTIANA PROPOSAL.
PROPOSALS FOR THE ON OF THE TWO SEAS,—THE ATLANTIC AND THE PACIFIC, BY MEANS OF A JOINT-STOCK COMPANY,
Grounds of expectation respecting the practicability of the proposed junction.
The most recent, as well as most determinate grounds, rest, it is believed, on the authority of the work, intituled, “Memoirs of the Mexican Revolution,” &c. by William Davis Robinson, in two volumes 8vo, London, 1820: the author, a citizen of the United States, a gentleman of good character, well known to the legation of his own state here in London. In Volume II. Chapter XIII. p. 263 is devoted to this subject.
It speaks (II. 269.) of the measure in question as being known to have been a favourite measure of the last of the two Pitts. It certainly was in the contemplation of General Miranda, whose enterprise was undertaken under the protection of that minister. It was from Miranda that the Edinburgh Review derived the principal part of the information contained in its article on the subject, anno 1810.
Being so long posterior to Humboldt’s great work, this of Mr. Robinson speaks of course (p. 265.) of the nine several supposed lines of junction, mentioned in that universally known work: but by Humboldt, in making the number of them so considerable, physical possibility is alone taken into consideration: length of voyage in respect of time, and consequently prospect of net profit, not being taken into the account: to which latter purpose, if the reports given by Mr. Robinson are to be depended upon, the nine will be found reduced to one.
Nothing can be more encouraging than the expectations held out by this account of his. Three spots, it is true, are mentioned. But of the three, taking the matter upon the face of his account of it, the one from Porto Bello on the Atlantic to Panamá on the Pacific, is decidedly impracticable: another, namely from the port formed by the river Guasacualco in the Atlantic, to Tehuantepec in the Pacific, not worth a thought in comparison with the third: a chain of mountains running between the two seas, (p. 287,) and the only chance depending on the existence of some ravine, deep enough to afford a practicable passage for a cut.
In this third proposed course through the lake of Nicaragua, no mountains are in the way. From the river San Juan (in English St. John,) running from the lake into the Atlantic, it passes on to the Pacific, either through the lake of Leon, which by a river communicates with the lake of Nicaragua, or by a direct cut at a less distance.
The information he speaks of as being derived from a number of persons of different descriptions (names not mentioned,) by whom the tract of country in question had been visited. The sum of it is as follows:—
I. Elevation of the land.
Between both lakes and the Pacific, the ground “a dead level.”
II. Depth of water on the side of the Atlantic.
III. Length of a strait cut at different parts of the above dead level.
Length of a river by which Lake Leon communicates already with the sea, “Leagues 8,” say miles 24.
Neither in Humboldt’s Work, nor in any other as yet published, is any considerable part of the above information (it is believed) to be found.
Under these circumstances, the Nicaragua track seems to be the one, the only one, to which, in the present state of our knowledge here in Europe, the attention of capitalists can be directed, with a view to the formation of any such company as is here proposed.
Outline of the proposed agreement for the accomplishment of it.
I. Situation and dimensions of the proposed spot.
Taking the conception of the spot from the view given of it in the maps to Pinkerton’s Atlas, the greatest tract of territory that would be requisite to be allotted to the purpose would be, that which occupies, in length, somewhat less than four degrees of longitude, geographical miles say 220, namely, from the mouth of St. John’s river in the Pacific; and in breadth, upon an average, a little more than a degree of latitude, geographical miles say a little more than 60. Upon the face of the map, the natural boundaries are, to the north, a chain of lofty mountains; to the south, another such chain, with the exception of the “dead level” above spoken of; to the east, the Atlantic; to the west,—in part the chain of mountains, having on the other side of it the territory of Costa Rica,—on other part, the Pacific.
In this tract of country may be seen the maximum of what it can be necessary should be ceded to the proposed company; whether, from this quantity, consistently with the accomplishment and perpetual maintenance of the junction for mutual and universal benefit, any and what defalcation can be made, will scarcely be ascertainable, until the necessary surveys have been made and reported.
Whatever may be the site and amount of it, call it for the present Junctiana.
II. Proposed source of benefit to the proposed company in a pecuniary shape.
1. The price of transit, whatsoever shape or shapes may be given to it: this price being to be received from the masters of all vessels making use of the communication.
2. The absolute property in the land (land covered with water included,) of all this territory, or of what lesser portion of it shall, on report of surveyors, as above, be deemed necessary and sufficient: thence, the right of selling it in parcels, and letting it out upon leases, for building and other purposes.
III. Proposed obligations of the company.
1. To pay to the local authorities a sum in the name of purchase money for the powers of government.
2. To pay the expense of the indemnification due to all such individuals, original inhabitants styled Indians included, as possess any interest in whatsoever land comes to be purchased: the value, so paid for, to be the present value only, not any such additional value as may be expected to be derived from the accomplishment of the measure. In case of disagreement, the prices to be referred to arbitration in manner hereinafter to be mentioned.
3. To defray the whole expense of effecting and keeping up the communication: including, as well necessary fortifications towards the two seas, as necessary means of communication of all sorts, such as canals, locks, bridges, tunnels, &c.: and necessary receptacles of all sorts for vessels, such as docks, jetties, &c.
4. In respect of the price of transit, as above, the company to admit vessels of all states, at the outset and forever, on exactly the same footing,—the state or states with which the agreement is made, not excepted: no favour, direct or indirect, to be given to any one at the expense of any other state, or of all states.
5. So in respect of purchase and renting of land, as above.
6. Proposition to be made to the Anglo-American United States, to take the Junctiana Territory under their protection, by admitting it into their union: terms, except so far as shall be excepted, the same in principle with those upon which the recently admitted states have been admitted: admitted namely for a time, and while in a state of probation, under the administration of the President of the United States, and as soon as ripe, admitted on the same footing as those other states, and with the same sort of government. Considering the benefit which, in so many shapes, these United States would reap from the accomplishment of the junction, and the honour conferred on their nation by the proposed spontaneous choice, their concurrence seems hardly to be doubted of. As to this point, see § 8.
7. No slavery, in any shape, to be allowed: should any vessel, with any slave on board, obtain admittance into the territory, every such slave, upon his entrance within the territory, to he free.
N.B.—It seems essential that, considering the magnitude of the advances which the company would have to make before any returns could be expected, every security which the nature of the case admits of, should be afforded to it: and in particular against any changes to which in their origin, states so lately emancipated from so bad a form of government, cannot but appear to stand exposed; society and manners, on the part of so large a proportion of the population, being as yet on so unfavourable a footing. As to this point, see § 7.
For the preservation of its rights and powers from injury, the company might stipulate for its having the appointment of a governor of the state so constituted, with a negative upon all laws. But quere as to the need of this? See § 7.
8. The entire price of transit, at the rate of so much per ton, to be made known and always kept known to all persons concerned: no enhancement by particular and undeclared collateral charges.
9. The maximum of it to be determined by the agreement between the contracting parties: no enhancement except by mutual consent, in consequence of casual expenses and consequent net loss: expenses, the nature of which will be to be specified in the ultimate agreement.
Mexico—sacrifices eventually requisite—inducements to compliance.
For the accomplishment of the measure upon the plan here submitted, the following are among the conditions necessary:—
1. That the expense be defrayed—not by the government to which the territory belongs, but by a joint-stock company.
2. That, for their security, the dominion, of the territory through which the communication is made, be ceded to the company.
3. That the dominion so ceded have—not on both sides of it a territory belonging to one and the same government; but, on one side, a territory belonging to one government, namely Mexico,—on the other side of it, a territory belonging to another government, namely Columbia.
4. That, for security to the capitalists, members of the joint-stock company, as well as for the benefit and satisfaction of all other nations interested, the territory in question be taken under the protection of the Anglo-American United States: of all other nations interested,—which is as much as to say, of all the other nations of the earth.
On this plan, at the hands of Mexico, certain sacrifices will, on certain suppositions, be requisite.
1. In Mexico, has any such idea yet been entertained, as that of executing the enterprise within her own dominions, and with capital to no greater amount than could be either raised by taxes, or obtained in some way or other from proprietors, subjects of her own government? In Columbia, there seems some ground for supposing that a conception to the like effect may perhaps have been entertained in relation to herself; forasmuch as, many months ago, a competent person was sent out from Europe by Columbia to make surveys in this view; and, on any such occasion, its own internal resources are the ways and means which a government would naturally look to, before it thought of extraneous ones.
In Mexico, should a persuasion to this effect have already obtained possession of men’s minds, a proposal such as the present seems to have no great prospect of finding acceptance.
The probability, however, seems to be on the negative side.
1. The first point on which this part of the question will turn, is—what is the quantity of capital that will be requisite? As to this point, everything is, it must be confessed, in utter darkness. Estimate being as yet altogether out of the question, what remains is loose conjecture, and without anything but the general nature of the enterprise for its ground. On this ground, no professional man would, it is believed, set the expense at less than several millions of pounds sterling—between four and five times as many dollars.
Whatsoever be the amount, thus much is however certain, that the expenditure would require to be kept running on—running on for a length of time, probably for several years, before any the least return for the money could be received.
That any such sum should be raised by taxes—raised by government in its infant, and as yet unsettled state—by taxes over and above all that will be requisite for carrying on the ordinary business of government, is an expectation of a result, which, upon the face of it, does not seem probable.
As to a capital to be raised without taxes—a capital to be furnished by a joint-stock company, having for its members, to an exclusive or principal amount, individuals belonging to the State of Mexico:—the formation of any such company depends upon two conditions:—
1. Upon the existence of capital, to such an amount, at the disposal of individuals.
2. Upon the inability of finding other applications for it, and those of an ordinary nature, that would be still more advantageous: applications, in the instance of which the employment given to it would be under the eye of the proprietor—at the choice of the proprietor—determined on each occasion by the will of the proprietor; and would not, as in this case, have to wait during an indefinite time, for every the smallest return.
If, for example, the information that has been received is correct, fifteen per cent. and more, and with an immediate return, may always be made of capital in Mexico; while, by an English capitalist, less than ten per cent., if placed upon a footing regarded by him as an assured one, would be caught at; and for this, or something not more than this, if possessed of sufficient means of living from other sources, he would even be content to wait. On the establishment of the London Docks for example, ten per cent. was the maximum looked to; and this was long before the commencement of that state of things, by which the profit capable of being expected from capital, has been of late years so much reduced.
This point being determined upon, if the determination be that a joint-stock company, formed by capitalists of all nations, foreigners as well as natives shall be resorted to; then comes the question about the portion of territory, and the cession to be made of it.
If the only portion that required to be ceded, were the portion to be purchased by the company for the purpose of the communication, that is to say, the portion through which the work would have to be carried on, thus far no great difficulty presents itself: thus far, by the supposition, Mexico would have her equivalent: the sacrifice would be such as she would be prepared to make: the equivalent, one with which, by the supposition, she would be satisfied.
But the difficulty, if there be any in the case, lies here. It is essential to the plan, that Columbia be not excluded from a share in that benefit which consists in contiguity—immediate contiguity—to the spot through which the communication is made. For this purpose it is necessary that, while on one side Mexico has the territory immediately contiguous to the territory through which the communication passes, Columbia should have the territory immediately contiguous to it on the other side. But, according to the latest account that has been made public, viz. Mr. Robinson’s, as published in London, anno 1821, there is but one spot that affords any tolerably fair promise of any such junction on profitable terms; and that is a spot in which Lake Nicaragua is included; and if the information received be correct, not only the contiguous land on the side of Mexico is regarded as appertaining to Mexico, but also the contiguous land on the side of Columbia.
If this be not the case, if the claims or expectations of Mexico do not embrace both sides, here ends this difficulty: but if they do embrace both sides, then it is that the difficulty will have place; for then it is that by Mexico, according to the plan here proposed, a sacrifice to a certain amount will have to be made.
For its direct object, this plan has the securing the establishment of the communication for the benefit of all nations without exception; and more particularly for the benefit of Mexico, Columbia, and the Anglo-American States; these being the three nations to which local proximity will render it in a peculiar degree advantageous. But moreover, for its collateral objects it has the prevention of all that ill-will, as between Mexico and Columbia, of which the possession of so great an advantage to Mexico, to the ex lusion of Columbia, could scarcely, the nature of man considered, fail of being productive betwixt Mexico and Columbia. With more propriety might it have been said, between Mexico on the one part, and on the other part Columbia, backed by all the other nations of the earth.
This heart-burning, this source of war and disappointment—this it is that presents itself to view as the great natural stumbling-block to the undertaking: this stumbling-block it is the principal object of this proposal to remove.
Suppose even that, by her own resources and within her own dominions, it were completely in the power of Mexico to establish the communication, still this stumbing-block would remain unremoved; a nation which for a long time, at sea at least, could not but remain a weak one: this weak nation, embarked in a project, presenting a face of injury to all the powers upon earth!
For the sake of peace in general, and for the peace and safety to Mexico in particular, this proposal has therefore for its main object, the preventing a possession thus important to all nations, from being endeavoured to be taken for a subject of exclusive property by any nation—to preserve it from becoming a bone of contention to all nations—to preserve it from this fate, by placing it in the conjunct hands of three nations, in the character of trustees for themselves and for all others without exception.
On the supposition, that Mexico has placed herself, and is known to have placed herself, in so dangerous a situation, and that the aid of capital from without is at the same time regarded by her as necessary, would any such capital to any such amount be found?
By capitalists, the danger against which, in this case, adequate security would be looked for, is not merely want of inclination to secure to them the stipulated benefits, but want of ability. But as to this point in the case supposed, the company would behold itself in a state of dependence, not only on Mexico herself, but on every other power, with which, either on the account here in question, or on any other, Mexico might, at any point of time, however distant, find herself in a state of hostility. Should any such hostility at any time have place (and can it rationally be supposed that it will not at any time have place?) the most prominent object would of course be this matchless jewel,—this matchless key to commercial advantage: the first endeavour would be either to take possession of it, or (as England did by the Washington capital) to destroy it; and in either case, what would be the condition of the company?
Hereupon comes the question—the security here proposed, will it be sufficient? O yes: that it will: this position requires a separate consideration; and the truth of it will be rendered (it is hoped) sufficiently manifest in another place. See § 8.
Upon the plan of universal benefit here proposed, all nations would behold in Mexico a friend. Upon the plan of exclusive benefit to Mexico, this plan of universal benefit being supposed rejected, and known to be rejected, all nations would behold in her an enemy. Upon the plan of universal benefit, all other nations, in their competition with these two nations and one another, are secured against every disadvantage, except that which has been established by the hand of nature; that is to say, local distance. Upon the plan of exclusive benefit, they would behold themselves exposed at all times to extortion—to extortion blind and boundless: they would look to the Vistula, to the Elbe, to the Rhine: in a word, to all those water communications which in Europe run through different states. All this they would look to; and, in the scene of self-pernicious selfishness, so universally and constantly exhibited in the old world, behold evidence but too conclusive of the like mixture of improbity and folly in the new.
To Columbia, such virtual hostility could scarce fail to be, in a peculiar degree, galling and irritative. To Mexico, to the exclusion of Columbia, the junction would, on this supposition, give the prodigious advantage of a water communication between her own ports in the Atlantic, and her own ports in the Pacific. Meantime, for this same advantage, in the case of Columbia, the demand is equally urgent.
Suppose her next neighbour in possession of it, and herself for ever either destitute of it, or dependent for it on the ever precarious good-will of a foreign state,—the very idea of such a state of things,—could it, consistently with the nature of man, fail to have irritation for its accompaniment? While they themselves are confined to the supremely tedious sea communication round Cape Horn, or to the not much less tedious internal communication up the rapid current of the river Magdalena, with a tedious land-carriage at the end of it—the mercantile men of that already-established republic, with their rulers at their back—is it in the nature of man they should look with other than an evil eye on their rivals in the Mexican state, if in the exclusive possession of so irresistible an instrument for throwing them out of the market?
The Columbians, it is well known to Mexicans, have, for a considerable time past, been regarding this jewel with a proprietary eye. After many unexpected delays, so late as February 1822, a civil engineer went from Europe to make surveys in this view. Exclusion from it would produce in their breasts the sensation of a loss. In the breast of Mexicans, the non-acquisition of it would not produce any such sensation as that of loss. By the acquisition of it, in equal shares, on the here-proposed partnership footing, the sensation of gain would be produced alike on both sides.
In this state of things, supposing the partnership plan rejected, if it were not really the interest, it would at any rate appear to be the interest, of all classes in the republic of Columbia, to act in a manner more or less declaredly hostile to Mexico—to obstruct the settlement of the government—to foment divisions—to keep the country in such a state of poverty, as should oppose an insuperable bar to her putting herself in possession of so exclusive and invidious an advantage.
All this while, what should never be out of mind is, that for all these surmises, unpleasant as they are, not any of the parties concerned, but the penner of this proposal, and he alone is answerable. All individuals, on whom any thing depends, being on both sides alike unknown to him, the propensities so universal in human nature constitute the only source whence these indications of probable hostility have been derived.
A much more pleasing object of contemplation to him is the state of amity—cordial and durable amity—which the sort of partnership here proposed could not fail to number among its natural fruits. The infant state would behold in them its common parents. In the Anglo-American union, of whose kindness the Columbian republic has had such recent experience, and at whose hands the Mexican state has so sure an anticipation of the like kindness, they would behold a common friend, and a friend, in case of misunderstanding, whether on these or any other points; a common referee—a referee, such as for impartiality, probity, and sound sense, has assuredly never as yet been matched in the history of nations.
One advantage, however, it must be confessed there is, of which, in this plan, Mexico would put herself exclusively in possession: an advantage in which neither any other nation, nor even Columbia herself, could claim, any the least share. This is the glory of so extraordinary, not to say unexampled, a manifestation of the union of those two virtues, to which all other virtues are reducible—effective benevolence and self-regarding prudence. In fact, it would be nothing more than a sacrifice of personal interest ill understood, to personal interest well understood: still, so difficult to human weakness is every such sacrifice, so imperfectly understood as yet is the connexion between social and personal interest, that the characters of generosity would not the less assuredly stamp themselves, upon the face of the sacrifice, in the most conspicuous and unfading colours.
So much as between Mexico and Columbia. Now, as between Mexico and all other nations.
As, by refusal of this cession, Mexico would stand forth in the eyes of all other nations in the light of an enemy of their common welfare, so by consent to it, she would establish herself in the character—the conspicuous, the indisputable, the indelible character—not simply of a common friend, but of a benefactress—a common, universal, and unexampled benefactress. To her they would behold themselves indebted—not merely for a benefit, but for such a benefit as, unless it were without design or expectation on the part of the benefactor, the nations of the earth, taken in the aggregate, never yet received at the hands of any one. Gratitude is therefore an affection, of which, in so far as in minds so situated, any such social affection can have place, she will be an object in all eyes—in the eyes of the present generation, and of all future ones. By Spain, and Spain alone, can any exception to this observation be afforded. But no longer than the present delirium lasts, can this exception last: nations are not, like individuals, exposed to any such lamentable disease, as insanity coeval with existence—insanity beyond the reach of cure.
Howsoever liable to become faint, the colours of national gratitude may be, such is not the case with the impression made by respect. Respect is a tribute, which, where really due, not even the bitterest enemy can altogether refuse: and as to time, tribute in this shape, so far from being diminished, is even increased by it.
The cession—shall it be gratuitous?—shall it be for a price?—if for a price, by whom paid?—by Columbia in the whole—by the proposed company in the whole?—by Columbia and the proposed company in shares?—and if so, in what shares? Questions, these which of necessity must, in the present stage of the business, be left unanswered.
Thus much, however, may even here be mentioned; namely, that if by Mexico a price is looked for, self-regarding prudence may remain or not remain,—there at any rate ends benevolence,—effective benevolence, with whatever glory encircles a virtue of such matchless rarity among nations. There ends that glory to Mexico, and there commences embarrassment and obstruction. On a possession such as that in question, who shall fix a value? On what grounds can it be fixed? With an amount fixed upon without grounds, who will be satisfied? Be it what it may, who will be content to pay it? Meantime, thus much may be answered in the negative, and thence what follows from it in the affirmative. No preference must there be, in respect of the price of transit. By any such preference, the simplicity of the plan would be destroyed: the merit of it as towards all other nations would be destroyed: in this shape, an advantage could not be given to Mexico by Columbia against herself, without its being given as against all other nations. This shape being set aside, money seems therefore to be the only shape in which, if in any, advantage could on any such score be granted.
Columbia—her particular inducements to concurrence.
After what has been said on the subject of those inducements which apply to the case of Mexico, next to nothing remains to be said of those which apply to the case of Columbia. On the proposed plan, none present themselves, but those in which she will be a sharer with Mexico: of these in the next section.
With regard to Columbia, thus much only remains to be said, namely, that if the glory of the cession is assumed by Mexico, as above, whatsoever net profit, in any more substantial shape, comes to be afforded by it, will fall of course to the share of Columbia.
Inducements common to Mexico and Columbia.
For the next section is reserved the consideration of the more striking benefit, in which, upon the proposed plan, these two new states will see the old established Republic of the Anglo-American United States sharing with them, and yet without detriment to them, or either of them, in any shape. What remains for the present section will not require many words.
The spot ceded to the company for the formation and security of the communication, will naturally be a seat of new created opulence and population: elements of prosperity, rapidly increasing from the first, and till the spot shall have been incapable of holding any more, for ever on the increase.
A communication in any shape effected, commercial functionaries and agents would immediately repair to it from all nations, and with them or after them, men of all occupations from all nations on both sides of the American continent, the Asiatic, as well as the European. Junctiana, with its two principal towns, one on the Atlantic, the other on the Pacific, would present to every eye the civilized world in miniature.
The hands, of so many various descriptions, of whom in such multitudes the labour would be necessary—the functionaries of the superintending classes, whose presence would be necessary for the giving direction to all that labour—the members of the establishment, civil and military, which, upon a scale of even such perfect frugality, would still be necessary—all these multitudes put together, would form a sensible addition to the active population and circulating wealth of the territory, even from the very commencement of the work.
The narrower the spot thus allotted to the company, the more speedily of course will all this mass of wealth and population begin to run over, and spread itself over the two great states on each side of it. But be that as it may, the frontier on each side can scarce fail to be marked by a flowing tide of the matter of national prosperity in both shapes. Of this influx, so much as is formed by emigrants from other states will, with reference at least to the two states in question, be so much created, as it were out of nothing, and in this advantage no other nation will possess any the least share.
For anything like a clear or correct conception of the advantage derivable to any tract of country, from the accession of settlers in its immediate vicinity, recourse should be had to the state of things in this respect, in the Anglo-American United States, as depictured in the various printed accounts, that have from time to time been given of it, by statistical writers and travellers.
Felicity, in these shapes, has the advantage of presenting determinate conceptions, by being expressed in figures. Benefits, not susceptible of any such precise expression, but of still superior, because of anterior importance—anterior, as being the efficient causes of them—are those which will be derived, in the shape of mental improvement in every line, intellectual and moral together. In the little Republic of Junctiana, her two great neighbours, parents as they are to her, would enjoy the benefit of a common school, established under the eyes of both of them: an all-comprehensive school, of everything that is useful in art and science, but more particularly of those things that are most useful,—good legislation, good judicature, good government in every line. This, indeed, supposes and assumes, that the territory of Junctiana will be a member of the Anglo-American United States, and thereby, that the government will be in the only form to which that school can give admittance (see § 7.) for if it be in any other, nothing that is good can be answered for, on any tenable ground.
Inducements common to Mexico, Columbia, and the Anglo-American United States,—water communication between their ports on the one ocean, and their ports on the other.
Of this benefit little need here be said, after the bare mention of it. Of the matters of fact on which the magnitude of it depends, nothing, in addition to that which the maps indicate, can here be said. To the inhabitants of the several territories, and in particular to those by whom they have been contemplated, with either a political or a commercial eye: to them, and to them almost alone, must the cognizance of this part of the field of consideration be referred.
For the present, and, doubtless, for a long time to come, by Mexico and Columbia will this benefit be possessed in by far the greatest magnitude. With its settlement in the Columbian River that empties itself into the Pacific, the confederation of which Washington is the capital,—Washingtonia, if for this purpose it may for the moment be called,—will, at the first, be in the state of the hen with one chick. But out of so fertile a womb, say who can, how many more such chicks may not be destined to be poured forth. At any rate, if it be worth while to keep her fed by a frequently interrupted water-carriage, and at the end of it a land-carriage, over a chain of mountains of 200 miles in length, much more so must it be through a level and unbroken channel, of which dry land forms no part.
In the instance of all three states, this benefit, whatever may be the amount of it, has two mutually contrasted, yet intimately connected, advantages. To these states it belongs exclusively, as compared with all other states. At the same time, neither in the eyes of any one of those other states, can it be a ground of complaint, or an object of jealousy. If the act, of which it is the result, were the act of man—of man, with his selfish and anti-social arrangements—yes. But no; it is the act, not of partial and hostile man, but of impartial and bounteous Nature. Upon the here-proposed plan, the only acts in which man has any concern, will be so many manifestations of beneficence, universal and indisputable beneficence.
In the eyes of capitalists, the proposed protection at the hands of the Anglo-American United States, necessary and satisfactory.
The party here considered, as that to which such protection would naturally be looked upon as necessary, is the proposed company; the body of men by whom, antecedently to all commencement of profit, so vast a capital will be to be expended.
1. First as to necessity.
Without such a security, it seems difficult to say in what quarter, for such a purpose, a prudent set of capitalists could behold a sufficient ground for confidence.
On the part of the state or states, out of whose territory the requisite spot of ground would be to be carved, two points (it has already been observed) would require to be established: the constancy of their disposition to perform their part of the engagement, and the permanency of their power so to do.
But in respect of both these points, not only now, but for an indefinite time to come, persons in the situation of those from whom the capital would have to come, cannot but be in a great degree in the dark.
Take in the first place Columbia, the first-born and best known of the two infant states.
1. At the time at which this line is writing, neither is Porto Cabello, the last port remaining to Spain in the Atlantic, known as yet to be in possession of Columbia, nor is the result of the expedition towards the Pacific as yet known. In any complete state, the Republic, therefore, is not as yet so much as formed.
2. Of the effect of its constitution, and of its deportment in a state of peace, no experience whatever can have as yet been had.
3. Of the founder of this state, the Liberator Bolivar, the character forms no doubt already a very considerable ground for the requisite sort of confidence. Not only does it stand high at present, but it has for a long time done so in the estimation of those countries from which the capital will have to come. But the life of a single person, and that still exposed to the chances of war, is but a slender prop to lean upon. Nor, for some time, owing to the state of her military occupations, can matters of a civil nature be so much as submitted to his cognizance.
One circumstance, indeed, there is, which it may not be improper to mention in this view, and which, to English and United States’ capitalists, cannot but be of an encouraging nature. The five men in whose hands the executive power is at present; namely, General Santander, vice-president of the Republic, Mr. Gual, minister of Foreign affairs, Mr. Restropo, minister of the Interior, Mr. Castillo, minister of Finance, Mr. Briceno, minister of the War and Marine Department, are all of them, it seems, well acquainted with the English language; and to men of English lineage, acquaintance with the English language, will naturally serve as a sort of circumstantial evidence of English ideas and affections. Still, however, this, though it is no trifle, is all which, at the vast distance of Bogota, the present capital, from the place of inquiry, there has as yet been time for the public in England, or in the Anglo-American United States, to learn, even in relation to the executive government; and as to the executive government, it is but the organ of the legislative. In London, the constitution has, indeed, though only within these few days, been made public. But the constitution of a state is one thing, the conduct of the government and the people under the constitution, another thing; and of this there cannot as yet have been any the smallest portion of time for observation and experience to have applied themselves to.
True it is, that before the earliest time at which any agreement, grounded on this or any other basis, can have been entered into, light in a considerable degree may naturally be expected to have been cast upon all this darkness. A small number of years, however, how tranquilly and prosperously soever they may have passed on, can in such a case afford but a slight foundation for the appropriate confidence; and, in the mean time, if the present opportunity be not embraced,—when minds are on the alert, generous affections not yet cooled, and what is more determinately material, capital, which as yet is in an overflowing state, not yet settled, in channels from which it cannot be diverted,—this or that unfavourable turn, taken by the political machine, may have opposed a final bar to the accomplishment of this matchless work of universal beneficence.
Thus much even as to Columbia. As to Mexico, to the eye of an English capitalist, everything in that quarter is as yet in utter darkness.
The result seems to be—that, without adequate extraneous security—security on both the above points; namely, permanency of inclination, and permanency of power—without additional security, such as nothing but the guarantee of a fully established government can give, capital to a sufficient amount would have but small likelihood of finding a sufficient ground for confidence.
To what government, then, for any such purpose, can expectation turn itself? Assuredly to one alone: and that is, the government which has here already been so continually presented to notice—the government of the Anglo-American United States.
In that government, prudence is too consummate and too constant, to admit of its entering into any such engagement, without an assurance of adequate benefit to the great community entrusted to its care. The grounds for such assurance will be touched upon under the next head. Under the present, their sufficiency must be provisionally assumed.
The company will require sufficient assurance of its being permitted, at all times to come, to exact the price of transit, and the rents and profits of its lands. Meantime, for the exercise of the powers of government on a sufficiently frugal plan, and in particular for the appointment of fit functionaries, it stands irremediably incapacitated—incapacitated, partly by local distance, partly by its own unchangeable constitution—an aristocratical government, the shares in which will be continually shifting hands, objects of purchase and sale, no one of all these rulers knowing anything about his subjects, nor caring anything more about them than he knows.
Were the details of government in hands so circumstanced, a necessary consequence is, that in the minds of the leading men, in this instance as in every other, the prime object would be patronage. To render this source of profit the more productive, useless and needless offices would gradually be multiplied, the emolument attached to them swollen to the utmost possible amount, pensions of retreat added, and the richest of the offices improved into sinecures. The proprietors at large, not finding, any of them, adequate inducements to expend their time upon the details of the government or the management—no individual among them beholding any recompense for his labour, unless it were in the being let into a partnership of the sinister profit, in the repression of which the only service he could render would consist—these proprietors, the great majority of them, would at all times, with the necessarily accustomed blindness and negligence trust everything to those same leaders.
Thus, by the ever-beaten track—thus, a sure as man is man—would a government so constituted go on from worse to worse: the permanent prosperity, not only of its distant subjects, but of the company itself, that is to say, of the great majority of its members, offered up as a constant sacrifice to the particular and sinister interest, real or imagined, of a small junta of the leaders.
In a word, in neither of the two only shapes in question, could the profit be rendered permanent, by any other means than the establishment of a form of government, which had really for its object the greatest happiness of the greatest number of the people. But this it could not have, any further than in proportion to the share which the people themselves had in it. In such a situation as that in question, the people, it may be said, are not as yet of sufficient age to go alone. Such would assuredly not be the language in Columbia: such, it is hoped, would not be the language in Mexico. But such would but too naturally be the language in England. Well, then, in Washington may be seen an institution, which has long been in the habit of taking in infant states to nurse; witness Indiana, Illinois, Alabama, Missouri: and how excellent the system of nursing is—how admirable a dry nurse the President has always been—experience has abundantly testified. No sooner were the infants of an age to go alone, than the alacrity with which the leading strings would be taken off, has also been abundantly testified. Nor in all this is there anything to which any such imputation as that of vague theory can attach itself: it rests throughout on practice—long-continued and universally-notorious practice.
The circumlocution of “the Anglo-American United States,”—a circumlocution as yet indispensable—for these are not at present the only American United States,—this circumlocution, howsoever where precision is an object, indispensable, is, to any other purpose, intolerable. Well, then—Washingtonia would, by the supposition, ease the company of the cares of government: she would do for the company, and continue to do, as she has always done, well, and to perfection, that which, for the company to do for itself, in any tolerable manner, and for any length of time, would be morally impossible.
The company being at the expense of the fortifications, these same fortifications would on both sides,—and in particular on that which is most material, the Atlantic side,—be in the hands of the company: here, so long as the fortifications remained untouched, would be even against the inhabitants themselves—the inhabitants of the Junctiana territory—a security, a substantial security for the main source of profit, the price of transit. Together with the fortifications, to the company would belong the function and expense of garrisoning them. This it might do without considerable danger to itself—without considerable danger from infrugality and peculation: out of two small garrisons, the number of official situations being determinate, no great pickings could be made.
But, in case of aggression from any distant power, how would the fortifications be to be defended? By land, indeed, under a government such as here proposed, the assistance of the inhabitants of the territory might be trusted to as a sufficient defence. But by sea, a source of defence suited to the nature of that element would be necessary: and, for this defence, not only the navy of Washingtonia on the spot, but the mere name of it, would be sufficient. Under the assurance that making war upon Junctiana, would be making war upon Washingtonia, of no such war does there seem any the smallest danger at the hands of any other states. To destroy the communication, would be to put an end to their own use of it: to injure it, would be to injure themselves, were it in any other view than the putting themselves in possession of it. By putting themselves in possession of it, they could do themselves no service, any further than they could keep it. Keep it they might, if a navy alone would suffice to keep it. But this they could not do: no such thing could any one of them do without an army likewise: an army, and that sufficient to maintain itself against the three powers perpetually confederated in the defence of the object of a conquest so obviously untenable.
Anglo-American United States,—their inducements for granting the protection requisite.
I. As to the guarantee looked for at their hands.
The purpose for which the concurrence of the long-established American Republic is regarded as necessary, has been already stated,—the affording to capitalists a sufficient assurance that the source of their profit will not be dried up—dried up, either by hostility from without, or by misconduct in any shape within.
The shapes in which eventual assistance is looked for at her hands, have also been already brought to view:—
1. First of the two mischiefs against which the guarantee is looked for: Hostility on the part of any maritime power—hostility directed to the purpose of destroying, injuring, or seizing and keeping, the line of communication: eventual assistance looked for, that of her naval force.
If, of the engagement for such eventual assistance, any actual addition to expense were a necessary consequence, here would be a burthen—a burthen to set in account against the accompanying benefit. But for any such expense, no probable need, it is believed, can be pointed out. For general purposes, a naval force, to a certain amount, she keeps up already, and will at all times keep up. The sight of this force, ready at all times to be called for and brought into action, should the conjuncture in question—the casus fæderis, as it is called by publicists—ever come into existence, will, in all human probability, be at all times sufficient for the purpose: to prevent its ever being called for, its universally known readiness to come whenever called for, will suffice.
2. Second of the two mischiefs against which the guarantee is looked for: Misconduct on the part of the population of Junctiana; misconduct, whether in the general shapes of misrule or anarchy, or in the particular shape of injustice towards the company, depriving them of the possessions stipulated for by them, in return for the expense to which this same population will, the greatest part of it, have been indebted for its existence.
The Junctiana territory being, by the supposition, a member of the United States; namely, in the first instance, upon the footing of their other dependent territories, and, as soon as ripe, upon the equal footing of an independent confederate; the following are rights, for the enjoyment of which the expectation of a guarantee on the part of the union will scarcely present itself as unreasonable: understand a guarantee, not only against all other nations, but against the Mexican and Columbian nations themselves, their consent to it being included in the agreement:—
1. Right of exacting the price of transit—so it be for ever without enhancement, unless it be in certain stipulated cases; 2. Right of receiving the rents and profits of whatever lands the company is proprietor of, as in the case of any other proprietors. Under these two heads is comprised everything that seems necessary.
II. As to their inducements for the affording this same guarantee.
To the entering into the engagement thus defined, refusal, or even reluctance, on the part of the United States in question, does not seem much to be apprehended.
By the supposition, the infant state would from the first be a member of their confederacy: in the first instance, and so long as in their judgment should be necessary, in a state of pupillage and probation—on the footing of what they call a territory—a territory nursed in the manner in which they are so well accustomed, and with such conspicuous success, to nurse infant states. Now, then, comes the question of their own skill in this most useful, most noble of all arts. In this instance any more than in any former one, can any distrust on their part reasonably be expected to have existence?—distrust of their own skill, and after so many conclusive evidences of it as have been afforded by experience?
If indeed to such guarantee as that in question, any considerable danger were attached of their being engaged in war, here would be a contingent evil, to be set in the balance against the certain good. But, of any such war, the utter improbability has (it is hoped) been rendered sufficiently manifest. See the last preceding Section.
Without adequate prospect of benefit to their principals, duty and interest would concur in preventing these constantly and necessarily faithful trustees from taking any such part in the affairs of others. But of such benefit can there be any deficiency?
1. In the first place, on the supposition that, from the communication in question, benefit to any amount will be derived, of all the nations of the earth, will not they reap the greatest share of it? Already their commercial navy is not greatly inferior to that of England—to that of every other country it is decidedly superior. Erelong, in the natural course of things, it cannot fail of being superior even to that of England: and, whatever be the number of her vessels that will find a convenience in availing themselves of the communication, the convenience to each such American vessel will, in proportion to its greater vicinity to the spot, be rendered greater than it can be to any European one.
2. As to the particular benefit, from the so much speedier communication with the settlement or settlements, present, future, and contingent, in the Pacific,—on this subject enough has been already said.
True it is, that for the representatives of Junctiana, when they come to sit in congress, distance from the nearest part of the present territory of the United States will give an additional sea voyage of some days. But, upon the whole, would the length of time occupied by the conveyance be in any considerable degree greater than that which is at present occupied by the state most distant from the seat of government? And, whatever it be, what, if any, will be the amount of the practical inconvenience? At the utmost, it may operate as a slight deduction from the value of the benefit, but cannot assuredly ever operate as a bar to it.
Another acquisition, which, though not of quite so substantial a nature as either of the preceding ones, does not seem much in danger of finding the nation in question altogether insensible to its value, is that political gem called glory: glory—not of that bloody hue which, it is hoped, is growing more and more out of fashion, and will one day be as little in repute as spangles and embroidery upon a coat at present, but glory of the very purest water—the glory radiating from the uncontrovertible proof that will thus be given, of its having been looked up to as the nation which, in the opinion of two other free nations, stands highest in the composite scale of national probity, wisdom, and benevolence. Stands highest? or should it not rather have been said, is the only nation, in the government of which, any such union of virtues could, in the nature of things, have ever yet found place?
All other Nations,—their inducements to acquiescence.
From the proposed communication, formed upon the proposed plan, all other nations have more or less to gain, nothing to lose. Whatever may be the gain, it will, in the instance of each such nation, be at the risk of others, without risk in any shape to itself.
That which they will gain by this means, they could not, any of them, gain by any other means.
A PROTEST AGAINST LAW-TAXES,
(printed in 1793, and first published in 1795.)
Taxes on law-proceedings constitute in many, and perhaps in all nations, a part of the resources of the state. They do so in Great Britain—they do so in Ireland. In Great Britain, an extension of them is to be found among the latest productions of the budget—in Ireland, a further extension of them is among the measures of the day. It is this impending extension that calls forth the publication of the present sheets, the substance of which has lain upon the shelf these many years.
It is a well-known parliamentary saying, that he who reprobates a tax ought to have a better in his hand.* A juster condition never was imposed. I fulfil it at the first word. My better tax is—any other that can be named.
The people, when considered with a view to the manner in which they are affected by a tax of this description, may be distinguished into two classes: those who in each instance of requisition have wherewithal to pay, and those who have not: to the former, we shall find it more grievous than any other kind of tax, to the latter a still more cruel grievance.
Taxes on consumption cannot fall but where there is some fund to pay them: of poll taxes, and taxes on unproductive property, the great imperfection is, that they may chance to bear where such ability may be wanting. Taxes upon law-proceedings fall upon a man just at the time when the likelihood of his wanting that ability is at the utmost. When a man sees more or less of his property unjustly withholden from him, then is the time taken to call upon him for an extraordinary contribution. When the back of the innocent has been worn raw by the yoke of the oppressor, then is the time which the appointed guardians of innocence have thus pitched upon for loading him with an extraordinary burthen.† Most taxes are, as all taxes ought to be, taxes upon affluence—it is the characteristic property of this to be a tax upon distress.
A tax on bread, though a tax on consumption, would hardly be reckoned a good tax; bread being reckoned in most countries where it is used, among the necessaries of life. A tax on bread, however, would not be near so bad a tax as one on law-proceedings: a man who pays to a tax on bread, may, indeed, by reason of such payment, be unable to get so much bread as he wants, but he will always get some bread, and in proportion as he pays more and more to the tax, he will get more and more bread. Of a tax upon justice, the effect may be, that after he has paid the tax, he may, without getting justice by the payment, lose bread by it: bread, the whole quantity on which he depended for the subsistence of himself and his family for the season, may, as well as anything else, be the very thing for which he is obliged to apply to justice. Were a three-penny stamp to be put upon every three-penny loaf, a man who had but three-pence to spend in bread, could no longer indeed get a three-penny loaf, but an obliging baker could cut him out the half of one. A tax on justice admits of no such retrenchment. The most obliging stationer could not cut a man out half a latitat nor half a declaration. Half justice, where it is to be had, is better than no justice: but without buying the whole weight of paper, there is no getting a grain of justice.
A tax on necessaries is a tax on this or that article, of the commodities which happen to be numbered among necessaries: a tax on justice is a tax on all necessaries put together. A tax on a necessary of life can only lessen a man’s share of that particular sort of article: a tax on justice may deprive a man, and that in any proportion, of all sorts of necessaries.
This is not yet the worst. It is not only a burthen that comes in the train of distress, but a burthen against which no provision can be made.
All other taxes may be either foreseen as to the time, or at any rate provided for, where general ability is not wanting: in the instance of this tax, it is impossible to foresee the moment of exaction—it is equally impossible to provide a fund for it. A tax to be paid upon the loss of a husband, or of a father on whose industry the family depended—a tax upon those who have suffered by fire or inundation, would seem hard, and I know not that in fact any such modes of taxation have ever been made choice of: but a tax on law-proceedings is harder than any of these. Against all those misfortunes, provision may be made; it is actually made in different ways by insurance: and, were a tax added to them, pay so much more, and you might insure yourself against the tax. Against the misfortune of being called upon to institute or defend one’s self against a suit at law, there neither is nor can be, any office of insurance.*
Such is the cruelty of this species of tax, to those who have wherewithal to pay, and do pay to it accordingly. To those who do not, it is much more cruel: it is neither more nor less than a denial of justice.
Justice is the security which the law provides us with, or professes to provide us with, for everything we value, or ought to value—for property, for liberty, for honour, and for life. It is that possession which is worth all others put together: for it includes all others. A denial of justice is the very quintessence of injury, the sum and substance of all sorts of injuries. It is not robbery only, enslavement only, insult only, homicide only—it is robbery, enslavement, insult, homicide, all in one.
The statesman who contributes to put justice out of reach, the financier who comes into the house with a law-tax in his hand, is an accessary after the fact to every crime: every villain may hail him brother, every malefactor may boast of him as an accomplice. To apply this to intentions would be calumny and extravagance. But as far as consequences only are concerned, clear of criminal consciousness and bad motives, it is incontrovertible and naked truth.
Outlawry is the engine applied by the law, as an instrument of compulsion to those who fly from civil justice. Outlawry is the engine employed as an instrument of punishment against the most atrocious of malefactors. This self-same load of mischief, the financier, with perfect heedlessness, but with unerring certainty, heaps on the head of unsuspected innocence. Besides outlawry, which, in the cases where the offender could not otherwise be affected, comes in as subsidiary in lieu of other punishment, there are certain offences for which a man is subjected, expressly and in the first instance, to a similar punishment, under the name of forfeiture of the protection of the law. The same fate attends a man thus at different periods, according to his merits. If guilty, it lays hold of him after conviction, for a particular cause, and without excluding the hope of pardon: if innocent, and poor, and injured, before conviction, and without conviction, and for no cause at all, and as long as he continues poor, that is, as long as he lives.
What a contrast! What inconsistency! The judge and the legislator deliberating with all gravity, each in his separate sphere, whether to inflict or not this heavy punishment on this or that guilty individual, or narrow description of guilty individuals. The legislator, on the other hand, merely to get a little money which he could better get from any other source whatever, heaping the same doom upon thousands, not to say millions, of innocent and injured subjects, without consideration or remorse.
Mark well, that of all sorts of men, it is the poor, and they the more certainly in proportion to their poverty, that are despoiled in this way of the protection of the law: the protection of the law, that inestimable jewel, which in the language of that very law is defined the citizen’s universal and best birthright: the poor, and him that has none to help him, these are they to whom the help of the law is thus unfeelingly refused. The rich, were it from them that this great safeguard were withholden, have shields of their own to ward off the attacks of injury: the natural influence of wealth, the influence of situation, the power of connexion, the advantages of education and intelligence, which go hand in hand with wealth. The poor has but one strong-hold, the protection of the law: and out of this the financier drives him, without vouchsafing him a thought, in company with the herd of malefactors.
The poor, on account of the ignorance and intellectual incapacity inseparably attached to poverty, are debarred generally—as perhaps it is necessary, were it only for their own sake, they should be universally—from the sweets of political power: but are not so many unavoidable inequalities enough, without being added to by unnecessary injustice?
Such is the description of those from whom this sum total of all rights is torn away with one hand, while tendered with the other: what are their numbers in proportion to the sum total of subjects? I fear to say—perhaps two-thirds, perhaps four-fifths, perhaps nine-tenths; but at the lowest computation a vast majority.*
A third description of persons may yet be distinguished, whose condition under the system of law-taxes is still more deplorable than that of either of the other two. I mean those who, having wherewithal to pay the imposition at the commencement of the suit, and during more or less of its progress, see their substance swallowed up by the taxes before the termination of it. The two preceding modifications of abuse, either of them bad enough, are thus put together, and compounded into a third.
Considered with a view to the treatment given to persons of this description, a court of justice is converted into exactly the same sort of place, as the shop of a baker would be, who having ranged his loaves along his window in goodly show to invite customers, should, instead of selling them the bread they asked for, first rob them of their money, and then turn them out of doors. To an unprejudiced imagination, the alliance between justice and finance, presents on this occasion a picture almost too near the truth to be termed an apologue. At the door of a house more predatory than any of those that are called houses of ill fame, the judge in his robes presenting to unsuspecting passengers a belt to prick in; the Lord High Treasurer in the back ground with his staff, lying in wait, ready as soon as the victims are fairly housed, and the money on the table, to knock them down and run away with it. The difference is, that any man may choose whether he will prick in the belt of the unlicensed sharper, nor are any but the rawest louts to be so deluded: whereas the wisest men may be inveigled in, as well as the stoutest dragged in, by the exalted and commissioned plunderers—so much surer is their game. For were the list of law-taxes ever so familiar, and ever so easy to be understood, it is impossible for a man to know beforehand whether he has wherewithal to pay the bill, because it is impossible for him to know what incidents may intervene to lengthen it. Were a man even to sit down and form a resolution to submit to every injury which he could not afford to prosecute for, and to plead guilty to every accusation which he could not afford to defend himself against, even at this price he could not save himself from the hardship of paying for justice, aggravated by the still greater hardship of not getting it.
If in all cases the practice is wicked, in some it is more particularly preposterous. In civil causes, and other causes where the injury to individuals affords a natural interest to prosecute, artificial expenses are cruelty and breach of faith: in a large class of penal causes, in which, for want of such natural interest, prosecutors must be engaged by factitious inducements, or the law be a dead letter, the cruelty and treachery are crowned by blunder and inconsistency. Beckoned into court with one hand, men are driven away with the other. But, costly as the attractive power frequently is, the repulsive force is apt to be much stronger. Reward is subsequent, distant, uncertain, and dependent upon success. Trouble, expense, and odium, are certain and precedent.†
In favour of this species of imposition, I have seen two arguments produced.
One is, that in this case as in others, the burthen of an establishment ought to lie on those by whom the benefit is reaped. The principle is incontrovertible: the matter of fact supposed by the application of it is not true.
The argument, were it just, would not extend beyond so much of the produce of the tax as is requisite for defraying the charge of this part of the national establishment. Whether it be confined or no within these bounds, was perhaps never thought worth inquiring into, in any country where this tax was imposed. It certainly extends much beyond them in England; and it seems to be resorted to from time to time, with as little scruple, as an extension of the customs or excise. But let this pass.
As to the notion of a connexity in this case betwixt the benefit and the burthen, it has been countenanced by an authority too respectable, not to deserve the most serious notice;* but come it from whom it will, it is a mere illusion. The persons on whom the whole of the burthen is cast, are precisely those who have the least enjoyment of the benefit: the security which other people enjoy for nothing, without interruption, and every moment of their lives, they who are so unfortunate as to be obliged to go to law for it, are forced to purchase at an expense of time and trouble, in addition to what pecuniary expense may be naturally unavoidable. Meantime, which is of most value?—which most worth paying for?—a possession thus cruelly disturbed, or the same possession free from all disturbance? So far then from being made thus wantonly to pay an extra price, a man who stands in this unfortunate predicament, ought rather to receive an indemnification at the public expense for his time and trouble; and the danger of insidious or collusive contests, in the view of obtaining such an indemnity, is the only objection I can see, though perhaps a conclusive one, against the granting it.
Litigation may in this point of view be compared to war in sober sadness, as war has been to litigation in the way of pleasantry. The suitor is the forlorn hope in this forensic warfare. To throw upon the suitor the expense of administering justice, in addition to the trouble and the risk of suing for it, is as if, in case of an invasion, you were to take the inhabitants of the frontier and force them not only to serve for nothing, but to defray of themselves the whole expenditure of the war.
What in our times is become inveterate practice, is stigmatized as a species of iniquity without a precedent, by Saint Paul. “Who is there,” demands the Apostle, “who is there that ever goes to war at his own charge?”—“Alas!” cries the poor suitor, “I do.”
The other argument in favour of a set of taxes of this kind, is, that they are a check to litigation.
Litigation is a term not altogether free from ambiguity. It is used sometimes in a neutral sense, to denote the prosecuting or defending a suit, though perhaps more frequently in a bad one. In its neutral sense, it expresses the irreproachable exercise of an essential right: in a bad sense, a species of misconduct practised under the notion of exercising such a right.
In the first sense, taxes can never have been recommended by any man as a check to litigation: in this sense, an avowed desire of checking litigation would be neither more nor less than an avowed desire of denying justice.
In a bad sense again, the word is used on two different occasions; where the suit, whatever be the importance of the matter in dispute, is on the part of the person spoken of as maintaining it, a groundless one: and where the suit, however well-grounded on his part in point of title, is on account of the supposed unimportance of the matter in dispute, deemed a frivolous, a trifling, a trivial one; and in either case, it is of course applicable to the situation of either plaintiff or defendant, though it is apt to fix in the first instance, and most readily upon the situation of the plaintiff, as being the party, who, by taking the first step on the commencement of the suit, exhibits himself as the author of it.
On either side, litigation, when groundless, may be accompanied or not, with what the lawyers call in genere malitia, meaning consciousness of misdoing, and in this particular case mala fides, consciousness of the groundlessness of the action or defence—consciousness of the want of merits.
Where merits are wanting, but there exists no consciousness of the want, taxes on law-proceedings do, it must be confessed, operate as a check to litigation; and that as well on the side where it is groundless as on that where it is well-grounded, and in the same degree. Indeed, as both of two contending parties cannot in point of law be actually in the right, though either or both may think themselves so, the impediment cannot operate to the denial of justice, but it must operate to the prevention of groundless litigation at the same time. Prevent him who is in the right from instituting a suit, you prevent him who is in the wrong from defending one. But neither is litigation prevented, any further than as justice is denied. So far then as this case extends, it is still but the other side of the same effect, the denial of justice.
Have they then any peculiar tendency to operate as a check to litigation, when it is not only groundless, but accompanied with a consciousness of its being so?—to malicious, or as it might with more propriety be termed, anti-conscientious litigation? On the contrary, their direct tendency and sure effect is to promote it.
They produce it on the part of the plaintiff.—Were proceedings at law attended with no expense nor other inconvenience, till the suit were heard and at an end, a plaintiff who had no merits, could do a defendant man no harm by suing him: he could give him no motive for submitting to an unfounded claim; malice would have no weapons; oppression would have no instrument. When proceedings are attended with expense, the heavier that expense, the greater of course is the mischief which a man who has no merits is enabled to do; the sharper the weapon thus put into the hand of malice, the more coercive the instrument put into the hand of the oppressor.
They produce it on the part of the defendant. Were proceedings at law attended with no expense, a defendant who knew he had no merits, a defendant who was conscious that the demand upon him was a just one, would be deprived of what is in some cases his best chance for eluding justice, in others the absolute certainty of so doing; he would lose the strongest incentive he has to make the attempt. A defendant who means not to do justice unless compelled, and who knows that the plaintiff cannot compel him without having advanced a certain sum; such a defendant, if he thinks his adversary cannot raise that sum, will persevere in refusal till a suit is commenced, and in litigation afterwards.
Whether they make the litigation, or whether they find it ready made, they show most favour to the side on which anti-conscientious litigation is most likely to be found. By attaching on the commencement of the suit, they bear hardest upon the plaintiff, or him who, if they would have suffered him, would have become plaintiff. In so doing they favour in the same degree the defendant, or him who, if the party conceiving himself injured, could have got a hearing, would have been called upon to defend himself. But it is on the defendant’s side that anti-conscientious practice is most likely to be found. Setting expense out of the question, an evil of which these laws are thus far the sole cause—setting out of the question the imperfections of the judicial system, and the hope of seeing evidence perish, or the guilty view of fabricating it, a man will find no motive for instituting a suit for an ordinary pecuniary demand, without believing himself to be in the right; for if he is in the wrong, disappointment, waste of time, fruitless trouble, and so much expense as is naturally unavoidable, are, by the supposition, what he knows must be his fate. Whereas, on the other hand, a man upon whom a demand of that kind is made, may, although he knows himself to be in the wrong, find inducement enough to stand a suit from a thousand other considerations; from the hope of a deficiency in point of evidence on the part of the plaintiff, not to mention, as before, the rare and criminal enterprise of fabricating evidence on his own part,—from the hope of tiring the plaintiff out, or taking advantage of casual incidents, such as the death of witnesses or parties,—from the temporary difficulty or inconvenience of satisfying the demand, or (to conclude with the case which the weakness of human nature renders by far the most frequent) from the mere unwillingness to satisfy it.
In a word, they give a partial advantage to conscious guilt, on whichever side it is found; and that advantage is most partial to the defendant’s side, on which side consciousness of guilt, as we see, is most likely to be found.
Better, says a law maxim subscribed to by everybody, better that ten criminals should escape, than one innocent person should suffer; and this in case even of the deepest guilt. For ten, some read a hundred, some a thousand. Whichever reading be the best, an expedient of procedure, the effect of which were to cause ten innocent persons to suffer for every ten guilty ones, would be acknowledged to be no very eligible ingredient in the system. What shall we say of an institution, which for one culpable person whom it causes to suffer, involves in equal suffering perhaps ten blameless ones.
Thus much for groundless suits: there remains the plea of its tendency to check what are deemed trivial suits.
I know what a groundless suit means—I know of no such thing as a frivolous one. No wrong that I know of can be a trivial one, which to him to whom it is done appears a serious one, serious to such a degree, as to make it worth his while to demand redress at the hand of justice. Conduct is the test of feeling. I know of no right I have to set up any feelings of my own as the standard of those of my neighbour, in contradiction to a declaration of his, the truth of which is evidenced by his own conduct. What to one man again is trivial, to another man may be of high importance. In the account of wrong too must be included, not only the individual wrong taken by itself, but its effects in the way of encouragement to repetition, and its effects in the way of example. I know of no wrong so slight, that by multiplication may not become intolerable. Give me but a licence to do to any person at pleasure the minutest wrong conceivable;—I need no more, that person is my slave. Allow me to rob him, though it be but of a farthing, farthing by farthing, I will find the bottom of his purse. Allow me but to let fall a drop of water upon his head—gutta cavat lapidem, the power of striking his head off would be less susceptible of abuse.
In pecuniary cases, the smaller the sum in dispute, the less reserve is used in branding the conduct of the parties with the charge of litigation, of which, in such cases the reproach is apt to fall principally, if not exclusively, to the plaintiff’s share. But the importance of the sum is altogether governed by the circumstances of the parties; the amount of it in pounds, shillings, and pence, shows nothing. One man’s income may be a hundred, a thousand, four thousand times as great as that of another. In England there are men whose income exceeds £60,000 a-year. Fifteen pounds a-year is as much as falls to the lot of perhaps the greater number of the whole body of the people. Without a particular caution, a legislator or a judge will naturally enough, like any other man, take the relation of the sum in dispute to his own feelings, that is, its ratio to his own circumstances, for the measure of importance; but by this standard he will be sure to be deceived, as often as the circumstances of the parties, or either of them, are materially different from his own. Fifty pound, for example, will be apt to appear in his eyes an object of considerable importance; an object of which a tenth or a twentieth part, or less, might be of importance sufficient to justify from the charge of litigation, the maintenance of a suit. A shilling would be almost sure to appear to him an object altogether trifling; an object by no means of magnitude enough to warrant the maintenance of a suit. Fifty pound is, however, a sum of less importance to a Duke of Marlborough or Bedford, than a single shilling (viz. than a thousandth part of £50) to many a man, in truth to probably the majority of men in the kingdom. It is therefore more unjust, more tyrannical, to refuse to hear the demand of an ordinary working man to the amount of a shilling, than it would be to refuse to hear the demand of a Duke of Marlborough or Bedford, to the amount of £50. The legislator who, on the plea of checking litigation, or on any other plea, exacts of a working man as a preliminary to his obtaining justice, what that working man is unable to pay, does refuse to him a hearing,—does, in a word, refuse him justice, and that as effectually and completely as it is possible to refuse it.
That all men should have equal rights, not only would be politically pernicious, but is naturally impossible: but I hope this will not be said of equal justice.
Trivial causes require no such factitious checks: to such causes were all expenses struck off that can be struck off, there are natural checks in abundance, that are unavoidable. There is the pain of disappointment: there is expense, of which a certain measure will every now and then be absolutely unavoidable: there is consumption of time, which to the working classes, that is to the great majority of the people, is expense.
But even let the cause be trivial, and that to such a degree as to render the act of commencing the litigation blameable, the blame is never so great on the side of the party most favoured by the tax, as on the side of the party most oppressed by it. The party most oppressed is the complainant—the party who, having suffered the injury, such as it is, claims or would claim satisfaction for it at the hands of justice. But, so as there does but exist the smallest particle of an injury, the party who claims satisfaction for it can never be so much in the wrong for doing so, but that he who refuses satisfaction must be still more so. If the demand he just, why did not he comply with it? If just, but trifling, why does he contest it? In this case then you cannot punish in this way the misconduct of one party, without rewarding the still greater misconduct of the other. If the tax applies a check where there is blame, it affords protection and encouragement where there is still greater blame.
Another injustice.—The poorer a man is, the more exposed he is to the oppression of which this supposed remedy against litigation is the instrument. But the poorer a man is, the less likely he is to be litigious. The less time a man has to spare, and the less a man can afford to expend his time (not to speak of money) without being paid for it, the less likely is he to expose himself to such a consumption of his time.
The rich man, the man who has time and money at command, he surely, if any, is the man to consume it litigiously and frivolously. No wonder however, if to a superficial glance, the poor should appear more litigious than he. There are more of the poor than of the rich: and to the eye of unreflecting opulence, the causes of the poor are all trivial ones.
We think of the poor in the way of charity, for to deal out charity gratifies not only benevolence, but pride. We think much of them in the way of charity, but we think little of them in the way of justice. Justice, however, ranks before charity; and they would need less charity, if they had more justice.
What contributes more than anything to the indignation excited by suits that are deemed trivial, and, on account of the triviality vexatious, is the excessive ratio of the expense of the suit to the value of the matter in dispute: especially when the matter in dispute being pecuniary, its minuteness is more conspicuous and defined. But to what is this expensiveness owing? As far at least as these taxes are in question, to the legislator himself. Mark then the iniquity:—he is himself the author of the wrong, and he punishes for it the innocent and the injured.
To exclude the poor from justice was not enough:—they must be excluded also from mercy. Forty shillings is the tax imposed on pardons, by a statute of King William (5 & 6 W. & M. c. 21, § 3.) forty shillings more by another, not five years afterwards, (9 & 10 W. III. c. 25. § 3, 50.) Together, £4:—half a year’s income of a British subject, according to Davenant’s computation above quoted. What is called mercy, let it be remembered, is in many cases, no more than justice: in all cases where the ground of pardon is the persuasion of innocence, entertained either notwithstanding the verdict, or in consequence of evidence brought to light after the verdict.* All punishments are accordingly irremissible, to him who has not to the amount of half a year’s income in store or credit—all fines to that amount or under, absolutely irremissible.†
Taxes on law-proceedings, so far then from being a check to litigation, are an encouragement to it—an encouragement to it in every sense in which it is mischievous and blameable. Would you really check litigation, and check it on both sides?—the simple course would be a sure one. When men are in earnest about preventing misconduct in any line, they annex punishment to misconduct in that line, and to that only: a species of misconduct which cannot be practised but as it were under the eye of the court, is of all others the easiest to cope with in the way of law. Deal with misconduct that displays itself under the eye of the court as you deal by delinquency at large, and you may be sure of succeeding to a still superior degree. Discriminate misconduct then from innocence: lay the burthen on misconduct and misconduct only, leaving innocence unoppressed. Keep back punishment, till guilt is ascertained. Keep back costs, as much as possible, till the last stage of procedure; keep off from both parties everything of expense that is not absolutely unavoidable, where litigation is on both sides without blame: at that last stage if there be found blame, throw whatever expense of which you allow the necessity to subsist beyond what is absolutely unavoidable,—throw it on that side, and on that side only, where there has been blame. If on both, then if circumstances require, punish it on both sides, by fine for instance, to the profit of the public.
Litigation, though eventually it prove groundless—litigation, like any other course of conduct of which mischief is the result, is not therefore blameable; and where it is blameable, there is a wide difference whether it is accompanied with temerity only, or with consciousness of its own injustice. The countenance shown to the parties by the law ought to be governed, and governed uniformly and proportionally, by these important differences.—So much in point of utility:—how stands establishment?—Taxes heaped on in all stages from the first to the last without distinction:—all costs given or no costs, no medium:—costs scarce ever complete, and nothing beyond costs. No mitigation, or enhancement, in consideration of pecuniary circumstances. No shades of punishment in this way correspondent to shades of blame—in most cases no difference so much as between consciousness of injustice and simple temerity, nor so much as betwixt either and innocence. The power of adjudging as between costs and no costs, seldom discretionary:—that of apportioning, never:—nor that of fining beyond the amount of costs:—consequently nor that of punishing both parties where both have been to blame. Were a power to be given by statute to impose on a litigious suitor convicted of litigation, a fine to an amount not exceeding what the losing party pays now, whether he be blameable or blameless, it would be cried out against perhaps as a great power, too great to be given to judges without juries.‡
Justice shall be denied to no man, justice shall be sold to no man, says the first of statutes, Magna Charta. How is it under these later ones?—Denied, as we have seen, to nine-tenths of the people, sold to the other tenth at an unconscionable price. It was a conceit among the old lawyers, reported if not adopted by Lord Coke, that a statute made contrary to Magna Charta, though made in all the forms, would be a void law. God forbid, that by all the lawyers in the world, or for the purpose of any argument, I should ever suffer myself to be betrayed into any such extravagance: in a subject it would be sedition, in a judge it would be usurpation, in anybody it would be nonsense. But after all it must be acknowledged, to be in some degree unfortunate, as well as altogether singular, that, of an instrument deemed the foundation of all liberty, and magnified as such even still, to a degree of fanaticism, a passage by far the most important, and almost the only one that has any application now-a-days, should be thus habitually trodden under foot, without remorse or reclamation.*
A tax so impolitic and so grievous—a tax thus demonstrated to be the worst of taxes, how comes it ever to have been made choice of, and when made choice of, acquiesced in? These are not questions of mere curiosity: for acquiescence under a tax, and that so general, forms at first glance no inconsiderable presumption in its favour. A presumption it does form: but when demonstration has shown itself, presumptions are at an end.
How comes the tax to have been made choice of? One cause we have seen already in another shape; the unscrutinized notion of its supposed tendency to check litigation: litigation which, where it stands for mischief, is the very mischief which the species of tax in question contributes with all its power to promote.
Another cause may possibly be, the tendency which this sort of tax has to be confounded in the eye of an incurious observer, with other sorts, which are either the best of all, or next to the best. The best of all are taxes on consumption, because not only do they fall nowhere without finding some ability to pay them: but where necessaries are out of the question, they fall on nobody who has not the option of not paying them if he does not choose it. Taxes on property, and those on transfer of property, such as those on contracts relative to property, are the next best: because though they are not optional like the former, they may be so selected as never to call for money but where there is ability, nay even ample ability, to pay them. Now, of these two most supportable classes of taxes, the second are all of them levied by means of stamps: taxes on consumption, too, in many instances, such as those on cards, dice, gloves, and perfumery, show to the eye as stamp-duties. But all these are very good taxes. Stamp-duties therefore are good taxes: and taxes on justice are all stamp-duties. Thinking men look to consequences; they look to the feelings of the individuals affected: acting men look to the stamp: taxes on justice, taxes on property, taxes on consumption, are accordingly one and the same object to the optics of finance. Stamp-duties too have another most convenient property: they execute themselves, and law-taxes beyond all others: in short, they exclude all smuggling.† They heap distress indeed upon distress; but the distress is not worth minding, as there is no escaping it.
But the great cause of all is the prospect of acquiescence—a prospect first presented by hope, since realized over and over again by experience. It is too much to expect of a man of finance, that he should anticipate the feelings of unknown individuals: it is a great deal if he will listen to their cries. Taxes on consumption fall on bodies of men: the most inconsiderable one, when touched, will make the whole country ring again. The oppressed and ruined objects of the taxes on justice, weep in holes and corners, as rats die: no one voice finds any other to join with it.
A tax on shops, a tax on tobacco, falls upon a man, if at all, immediately, and presses on him constantly:—every man knows whether he keeps, or means to keep a shop—whether he means to sell or to use tobacco. A tax on justice falls upon a man only occasionally: it is like a thunder-stroke, which a man never looks for till he is destroyed by it. He does not know when it will fall on him, or whether it ever will: nor even whether, when it does fall, it will press upon him most, or upon his adversary. He knows not what it will amount to: he has no data from which to calculate it: it comes lumped to him in the general mass of law charges: a heap of items, among which no vulgar eye can ever hope to discriminate: an object on which investigation would be thrown away, as comprehension is impossible. Calamities that are not to be averted by thought, are little thought of, and it is best not to think of them. When is the time for complaint? Before the thunder-bolt is fallen it would be too soon—when fallen, it is too late. Shopkeepers, tobacconists, glovers, are compact bodies—they can arm counsel—they come in force to the House of Commons. Suitors for justice have no common cause, and scarce a common name—they are everybody and nobody—their business being everybody’s is nobody’s. Who are suitors? where are they? what does a Chancellor of the Exchequer care for them? what can they do to help him? what can they do to hurt him? So far from having a common interest, they have a repugnant interest: to crush the injured, is to befriend the injurer.
May not ignorance, with regard to the quantum and the source of the grievance, have contributed something to patience? Unable to pierce the veil of darkness that guards from vulgar eyes the avenues of justice, men know not how much of the difficulty of the approach is to be ascribed to art, and how much to nature. As the consumers of tobacco confound the tax on that commodity with the price, so those who borrow or would have wished to borrow the hand of justice, confound the artificial with the natural expense of hiring it. But if the whole of the grievance be natural, it may be all inevitable and incurable, and at any rate it may be no more the fault of lawyers or law-makers, than gout and stone are of physicians. Happy ignorance! if blindness to the cause of a malady could blunt the pain of it!
There want not apologists-general and talkers in the air, to prove to us that this, as well as everything else, is as it should be. The expense, the delay, and all the other grievances, which activity has heaped up, or negligence suffered to accumulate, are the prices which, according to Montesquieu, we must be content to pay for liberty and justice. A penny is the price men pay for a peeny loaf: therefore why not twopence? and, if threepence, there would be no harm done, since the loaf would be worth so much the more.
May not a sort of instinctive fellow-feeling among the wealthy have contributed something, if not to the imposition, at least to the acquiescence? It is the wealthy alone, that either by fortune, situation, education, intelligence, or influence, are qualified to take the lead in legislation: and the characteristic property of this tax, is to be favourable to the wealthy, and that in proportion to their wealth. Other taxes afford a man no indemnification for the wealth they take from him: this gives him power in exchange. The power of keeping down those who are to be kept down, the power of doing wrong, and the more generous pride of abstaining from the wrong which it is in our power to do; advantages such as these, are too precious not to be grasped at with avidity by human weakness: and, as in a country of political liberty, and under a system of justice in other respects impartial, they can only be obtained by a blind and indirect route such as this, the inconvenience of travelling in it, finds on the part of those who are well equipped for it, the more patient an acquiescence.
Will it be said that abolishing the taxes on justice would not answer the purpose, for that supposing them all abolished, justice would still remain inaccessible to the body of the people?—This would be to justify one abuse by another. The other obstacles by which the avenues to justice have been blocked up, constitute a separate head of abuse, from which I gladly turn aside, as being foreign to the present purpose. Take off law taxes altogether, the number of those to whom justice will still remain inaccessible, would still, it must be confessed, be but too great. It would however not be so great, as it is at present under the pressure of those taxes. Though you could not tell exactly to how many you would open the doors of justice, you might be sure you opened them to some. Though you would still leave the burthen but too heavy, you would at any rate make it proportionably more supportable.
If by taking off these taxes, you reduced the expense of a common action from £25 to £20, you might open the door, suppose, to one in five of those against whom it is shut at present. Even this would be something: at any rate whatever were the remaining quantum of abuse, which you still suffered to subsist, you would have the consolation at least of not being actively instrumental in producing it. To reform in toto a system of procedure is a work of time and difficulty, and would require a rare union of legal knowledge with genius:—repealing a tax may require discernment, candour, philanthropy, and fortitude,—but it is a work of no difficulty, requires no extraordinary measure of science, nor even so much time as the imposing of one.
But by whatever plea the continuance of the subsisting taxes of this kind may be apologized for, nothing can be said in favour of any new addition to the burthen. The subsisting ones, it may be said, have been acquiesced in, and men are used to them: in this respect at least they have the advantage of any new ones which could be substituted in the room of them. But even this immoral plea, which puts bad and good upon a level, effacing all distinction but that between established and not established, even this faint plea is mute against any augmentation of this worst of evils.
To conclude: either I am much mistaken, or it has been proved,—that a law tax is the worst of all taxes, actual or possible:—that for the most part it is a denial of justice, that at the best, it is a tax upon distress:—that it lays the burthen, not where there is most, but where there is least, benefit:—that it co-operates with every injury, and with every crime:—that the persons on whom it bears hardest, are those on whom a burthen of any kind lies heaviest, and that they compose the great majority of the people:—that so far from being a check, it is an encouragement to litigation: and that it operates in direct breach of Magna Charta, that venerable monument, commonly regarded as the foundation of English liberty.
The statesman who cares not what mischief he does, so he does it without disturbance, may lay on law-taxes without end: he who makes it a matter of conscience to abstain from mischief will abstain from adding to them: he whose ambition it is to extirpate mischief, will repeal them.*
General error makes law, says a maxim in use among lawyers. It makes at any rate an apology for law: but when the error is pointed out, the apology is gone.
Mem.—Anno, 1796. At a dinner at Mr. Morton Pitt’s, in Arlington Street, Mr. Rose, then secretary of the treasury, in the presence of Mr. William Pitt, (then minister) took me aside, and told me that they had read my pamphlet on Law-Taxes; that the reasons against them were unanswerable, and it was determined there should be no more of them.
Anno 1804, July 10, 12, 14, 18.—This being in the number of Mr. Addington’s taxes, Mr. Pitt, upon returning to office, took up all those taxes in the lump. On the above days, this tax was opposed in the House of Commons: and Mr. Wyndham, according to the report in the Times, on one of those days, spoke of this pamphlet as containing complete information on the subject; observing at the same time, that it was out of print. On behalf of administration, nothing like an answer to any of the objections was attempted: only the Attorney-General (Percival) said, that the addition proposed to those taxes, was no more than equal to the depreciation of money.
Mr. Addington, before this, had recourse to the tax on medicine here spoken of, (page 575.) So that, in the course of his short administration, if the representation here given be correct, he had had the misfortune to find out and impose the two worst species of taxation possible. Compare this with Denmark, and its courts of Natural Procedure, called Reconciliation Courts.
26th February 1816.—Unalleviated by any adequate hope of use, too painful would be the task, of hunting out, and holding up to view, the subsequent additions, which this worst of oppressions has, in this interval of twenty years, been receiving.
Money, it is said, must be had, and no other taxes can be found. The justification being conclusive, the tax receives its increase: next year, from the same hand, flow others in abundance.
Grievous enough is the income-tax, called, lest it should be thought to be what it is, the property-tax. Grievous that tax is, whatever be its name; yet, sum for sum, compared with this tax, it is a blessing. Instead of 10 per cent, suppose it 80 per cent. Less bad would it be to add yet another 10 per cent. than a tax to an equal amount upon justice.
Grievous have been the additions, so lately and repeatedly made, to the taxes on conveyances and agreements. Extensive the prohibitory part of the effect, though the pressure, confined as usual to the poor, i. e. the great majority of the community, who have none to speak for them, is scarcely complained of by the rich. Yet, were all law-taxes taken off, and the amount thrown upon conveyances and agreements, this—even this—would in reality be an indulgence.
Whether the oppression be more or less grievous, is never worth a thought. Will it be submitted to?—This is the only question. Charity is kicked out of doors. Hope is fled—faith and piety remain, and atone for everything.
For a list of about twenty-eight other sources of factitious delay, vexation, and expense, and thence of denial of justice, produced by the judges of former times, for the augmentation of iawyers’ profit, their own included,—together with a list and summary account of the devices by which these burthens have been imposed, and by which technical stands distinguished from natural procedure,—See by the same author, Scotch Reform, &c. printed for Ridgway, Piccadilly. [Vol. V.]
ADDITION by a LEARNED FRIEND.
In the Court of Chancery, two cases have recently occurred, which may serve as an illustration of the extent in which the taxes upon law-proceedings may operate as a denial of justice. In one case, Roe v. Gudgeon, the defendant, in his answer to the plaintiff’s bill, submitted that he ought not to be compelled to set out certain accounts which had been required by the bill, as the expense of taking what is called an office copy of them,—a necessary preliminary to any further proceeding on the part of the plaintiff in the cause,—would amount to the sum of £29,000: an expense almost wholly arising from the stamps on the paper, on which the office copy of the answer is compulsorily made. In this case the court determined, that it was not necessary these accounts should be set out: but in coming to this conclusion, how far the court was determined by the nature of the particular case, or by the magnitude of the expense that would thus be occasioned;—or whether if, without any such objection, the defendant had actually set out these accounts, the plaintiff could have been relieved from pursuing the regular mode of procuring a copy of them, and thus incurring the above expense;—or whether, if the expense had been instead of £29,000, only 28 or 27 thousand pounds, such an objection would have been listened to;—it is extremely difficult to say.
The other case alluded to is one in which, from peculiar circumstances, it is not thought proper to mention the names of the parties. It is optional with a man to be a plaintiff in a cause,—it is not altogether so optional with him to be a defendant. The preceding case shows that it is not always safe for a man to become a plaintiff, without £28,000, at least in his pocket to begin with, over and above what is necessary for his maintenance.—The following case shows that a man may not be always able to resist a demand, however unjust it may be, without being able to support an outlay of at least £800. In the case in question, the writer of this has been assured,—and from authority, which he has peculiar reason for relying upon,—that the expense of merely putting in an answer by one of the defendants to a bill in equity, amounted to the above sum of £800: what part of this expense was occasioned by the tax on law-proceedings cannot be accurately ascertained, but it assuredly constituted a very considerable proportion of that sum.
SUPPLY WITHOUT BURDEN; OR ESCHEAT VICE TAXATION:
(printed in 1793, and first published 1795.)
Of the two essays laid before the public, that which presents a new resource was submitted to the proper authority in the month of September 1794, but was not fortunate enough to be deemed worth further notice. The arguments which it contains will speak for themselves; none were controverted, nor any hinted at on the other side; only as a matter of fact, it was observed, that it had not been customary of late for the crown to avail itself of the branch of prerogative here proposed to be cultivated for the public use.
Nobody can suppose that the minister would not gladly have availed himself of this, as of any other, source of supply, had it promised, in his conception, to conciliate the voice of the public in its favour. Nobody can suppose, that if the apprehensions that occurred in prospect should ever be dispelled by the event, the sense of the public would find him backward in conforming to it. It is natural that the difficulties attending a measure of considerable novelty and magnitude, should strike with a force proportioned to the responsibility of the situation to which the measure is presented. It is natural that they should strike with less than their proper force, on the imagination of him in whose conception it received its birth.
The idea had been honoured with the approbation of several gentlemen of eminence at the bar, some of them in Parliament, as many as had had the paper in their hands. If they were right in their wishes in its favour, it by no means follows, but those to whom it was submitted in their official capacities, did otherwise than right in declining to make use of it. Of all the qualifications required at the board to which it was presented, one of the most indispensable is the science of the times; a science, which though its title to the name of science were to be disputed, would not the less be acknowledged to be in the situation in question, “fairly worth the seven.” For that master-science none can have higher pretensions than the illustrious chief of that department, none less than the author of these pages.
Neither his expectations, nor so much as his wishes, in relation to this proposal, had extended so far as to its immediate adoption. It now lies with the public, who in due time will grant or refuse it their passport to the Treasury, and to parliament, according to its deserts.
The “protest against law-taxes” had better fortune: it received from the candour of the minister, on whose plans it hazarded a comment, all the attention that candour could bestow; and if I do not misrecollect, the taxes complained against did not afterwards appear.
The publication of it in this country was kept back, till the proposal for a substitute to the tax complained of should be brought into shape. Upon the principle of the parliamentary notion, which forbids the producing an objection to a tax without a proposal for a better on the back of it. The two essays seemed no unsuitable accompaniments to each other. Mutual light promised to be reflected by the contrast between the best of all possible resources and the worst.
In a former essay* I pointed out the species of tax which, if the reasoning there given be just, is the worst of all taxes existing or possible. The object of the present essay is, to point out that mode of supply which, for one of so great a magnitude will, I flatter myself, appear to be absolutely the best.
What is that mode of supply, of which the twentieth part is a tax, and that a heavy one, while the whole would be no tax, and would not be felt by anybody?
The question has the air of a riddle; but the proposition it involves, paradoxical as it may appear, is not more strikingly paradoxical than strictly true.
The answer is, an extension of the existing law of Escheat—a law coeval with the very first elements of the constitution; to which I would add, as an aid to its operation, a correspondent limitation, not an extension of the power of bequest.
Of the extended law of escheat, according to the degree of extension here proposed, the effect would be, the appropriating to the use of the public all vacant successions, property of every denomination included, on the failure of near relations, will or no will, subject only to the power of bequest, as hereinafter limited.
By near relations, I mean, for the purpose of the present proposal, such relations as stand within the degrees termed prohibited with reference to marriage.
As a farther aid to the operation of the law, I would propose, in the instance of such relations within the pale* as are not only childless, but without prospect of children,† —whatever share they would take under the existing law, that instead of taking that share in ready money, they should take only the interest of it, in the shape of an annuity for life.
It would be a farther help to the operation of the measure, and (if confined to the cases where, from the nature of the relationship, the survivor is not likely to have grounded his plans of life upon the expectation of the succession, or otherwise to have placed any determinate dependence on it) may scarcely, if at all, be felt, if in such instances, although the relationship be within the pale, the public were to come in for a share in the succession (suppose an equal share,) though not the whole. This may be applied to the case of the uncle and aunt—to the case of the grandfather and grandmother—and perhaps, unless under particular circumstances, to the case of the nephew and niece.
With regard to family settlements, the persons whose benefit they have in view will be found provided for, with few or perhaps no exceptions, by the reservations made in this plan in favour of relations within the pale.
To make provision for the cases where, in virtue of an old settlement, an estate might devolve to a relation without the pale, I would propose to add a proviso, that whereever the deceased, had he been of full age, could by his single act have cut off the entail, it shall be as if he had actually done so for the purpose of excluding the distant relative.
This, in the instance of settlements already existing; as to future ones, there will be still less difficulty about confining their operation within the range meant to be allowed them by the spirit of the proposed law.
Regard to the principles of the constitution, not less than to the probability of carrying the measure through the Upper House, would, at the sametime, incline me to exempt the peerage from its operation, wherever the effect would be to deprive the title of any property which, under the existing law, would go to the support of it.
As to the latitude to be left to the power of bequest, I should propose it to be continued in respect of the half of whatever property would be at present subject to that power: the wills of persons in whose succession no interest is hereby given to the public, to be observed in all points as at present; as likewise those in whose succession an interest is given to the public, saving as to the amount of that interest—the plan consequently not trenching in any degree upon the rights of parents.‡
To give the plan its due effect, it will be seen to be indispensably necessary, in the first place, that the whole property in which the public shall thus have acquired an interest, shall, whatever it consists of, be converted into ready-money: property in the funds alone excepted, from which the public cannot reap so great a benefit in any other way than by the sinking of so much of its debt in the first instance; in the next place, that to prevent collusive undervaluation, and the suspicion of it, the conversion shall in every instance be performed in the way of public auction. As to the reasons for such conversion, they are tolerably apparent on the face of the proposition; and they will be detailed in their proper place.
What will also be seen to be necessary is, that wherever the public has any interest at all in any succession under the proposed law, the officer of the public, i. e. the officer of the crown, shall enter into the possession and management of the whole in the first instance, in the same manner as assignees of bankrupts do in respect of the whole property, real and personal together, or administrators or executors do in respect of the personalty: not to mention the real in some cases, as where, by a clause in the will, it is ordered to be sold.
Of the several extensions above proposed, it may be observed, that though they operate, all of them, to the augmentation of the produce, and in so far at least to the utility of the measure, yet are they not any of them, so indispensably necessary to its adoption, but that they may be struck out or modified, or even added to by further extensions, and the principle of the plan still adopted—the essence of it still preserved.
It may be a satisfaction to see at this early stage of the inquiry the principles by which the extent that may with propriety be given to this resource appears to be marked out and limited. The propositions I would propose in that view are as follows:—
I. Whatever power an individual is, according to the received notions of propriety, understood to possess in this behalf, with respect to the disposal of his fortune in the way of bequest,—in other words, whatever degree of power he may exercise without being thought to have dealt hardly by those on whom what he disposes of would otherwise have devolved,—that same degree of power the law may, for the benefit of the public, exercise once for all, without being conceived to have dealt hardly by anybody,—without being conceived to have hurt anybody,—and, consequently, without scruple: and even though the money so raised would not otherwise have been to be raised in the way of taxes.*
II. Any further power which could be exercised in this way to the profit of the public purse, and of which the exercise, though not altogether clear of the imputation of producing a sense of hardship, would, at the same time, be productive of less hardship than the lightest tax that could be substituted in the soom of it, ought, if the public mind can be sufficiently reconciled to it, to be exercised in preference to the establishment of any tax.
III. A power thus exercised in favour of the public purse, would go beyond the latitude given by the first rule, and would accordingly be productive of a sense of hardship, in as far as it went the length of producing, in any degree, any of the following effects, viz.
1. If it extended to the prejudice of the joint-possession customarily enjoyed by a man’s natural and necessary dependents, such as children, and those who stand in the place of children.
2. If it went to the bereaving a man of the faculty of continuing, after his death, any support he had been in the habit of affording to relatives of any other description, whose claims to, and dependence on such support, are, by reason of the nearness of the relationship, too strongly rooted in nature and opinion, to be capable of being dissolved by the dispensations of law.
3. If, by putting it out of the power of a relation of parental age, to receive, at the death of a relation of inferior age, an adequate indemnification for requisite assistance, given in the way of nurture, it threatened, by lessening the inducements, to lessen the prevalence of so useful a branch of natural benevolence.
4. If it went to the bereaving a man of the faculty of affording an adequate reward for meritorious service, of whatsoever nature, and by whomsoever rendered, lessening thereby the general disposition among men to the rendering of such service.
5. The effect of such an extension of the proposed power would be purely mischievous, if what were gained thereby on one hand, by the augmentation of the share taken into the hands of government, at the expense of the power of bequest, were to be lost, on the other hand, by a proportionable diminution effected in the whole mass of property in the country, in consequence of the diminution of the inducements to accumulate and lay up property, instead of spending it.
6. The public mind must, in this instance, as in every other, be, at any rate, treated with due deference. In this instance, as in every other, a law, however good in itself,—however good, on the supposition of acquiescence,—may become bad, in any degree, by unpopularity: by running too suddenly and directly against opinions and affections that have got possession of mankind.
Thus much for the rules that may serve for our guidance in adjusting the extent that may be given to this resource. They may be trusted, it should seem, for the present, at least, to the strength of their own self-evidence. The application of them to practice, the application of them to the several modes and degrees of relationship, and to the several situations and exigencies of families, is matter of detail that will meet us in its proper place.
ORDER OF THE DETAILS.
In continuing the thread of this proposal, the following is the course I propose to take:—
1. To give a brief view of the advantages or beneficial properties that appear to recommend the measure to the adoption of government.
2. To show how distinct it is, in reality, from all taxes on collateral successions, which have ever been established or proposed, and how much the distinction is to its advantage.
3. To exhibit the best idea I am capable of giving of the probable amount of the produce that may be expected from it.
4. I shall add a few observations relative to the most eligible application to be made of that produce.
Descending further into detail,*
5. I shall give a more particular view of such regulations as may seem proper to be inserted for the purpose of applying to practice the principles already exhibited.
6. I shall attempt a sketch of an official establishment for the collection of the produce.
7. I shall consider the measure with reference to the cases where the interest of individuals belonging to nations altogether foreign, or nations co-ordinate with or subordinate to the British, are concerned.
8. I shall consider it with reference to the cases where the property in question happens to be situated anywhere without the limits of the laws of Great Britain.
9. I shall attempt a general sketch of a plan for the collection of the produce: in the course of which attempt, I shall have occasion to advert to the differences that may be suggested by the nature of the property which may come to be collected: to the means of guarding against concealments and other frauds to which the property in its several shapes may be exposed, on the part of such individuals, whose interest or affections may be at variance, in this behalf, with the interest of the public; as also against any such abuses of power and other mismanagements, as the servants employed on behalf of the public in this business, stand exposed, by their respective situations, to the temptation of being chargeable with.
In a sort of Appendix, which those who may find themselves already satisfied with the principle of the mode of supply, may spare themselves the trouble of looking into.
10. I shall defend the proposed institution against every objection which my imagination can represent to me as capable of presenting itself.†
11. I shall show that a latitude, much beyond what is here proposed to be assumed, stands warranted by the opinions of the most respected writers.
12. That it is equally warranted by precedent, that is, by the disposition of law in this country from the primitive ages of the constitution down to the present times.
13. Lastly, in the way of supplement to the refutation of the several imaginable objections to the proposed measure, I shall endeavour to give a comprehensive idea of the several effects, as well immediate as remote, that appear any way likely to result from it, considered in every imaginable point of view.
The advantageous properties of the proposed resource may be stated under the following heads, viz.—
1. Its unburthensomeness.
2. Its tendency to cut off a great source of litigation.
3. Its favourableness to marriage.
4. Its probable popularity on that score.
Its unburthensomeness, which is the great and transcendent advantage, is not matter of surmise: it is testified by experience: it is confirmed, as we shall see, by the most indisputable principles of human nature—by the fundamental constitution of the human feelings.
1. It is testified by experience. On the decease of my uncle, who had children before I was born, the law gives everything to his children, nothing to me. What do I suffer from finding myself thus debarred? Just nothing—no more than at the thoughts of not succeeding to the stranger whose hearse is passing by.
What more should I suffer, if my uncle’s property, instead of going to his children, were known beforehand to go to the public? In point of personal feeling, at least, nothing: sympathy for my cousins, in the case of their being left destitute, is a different concern.
Living under the law of England, I find myself debarred from a succession, in which I should have shared had I lived under the law of Spain. What do I suffer at hearing this? Just nothing: no more than I suffer at the thoughts of not being king of Spain. But if the law of England were to be changed in this behalf, in conformity to the measure proposed, what is now the existing law would be to me no more than the law of Spain.
My father gets an office: upon his decease, the office goes to the nominee of the king, from whom he got it, not to me. Do I regard the successor as an intruder?—do I feel his taking possession of the office as a hardship upon me? No more than I do his Majesty’s having succeeded to the crown instead of me.
Under the existing law of escheat, real property, on the absolute failure of all heirs, lapses to the crown already. Is there anything of hardship felt by any body? If there were, it would be a cruel hardship, for it would be felt by every body.* Give to this branch of law the extent proposed, confining it always within the bounds above traced out, and it will be even then as unburthensome as it is now.
Thus stands the resource in point of unburthensomeness, as demonstrated by experience. What does so singular a property turn upon? Upon a most simple and indisputable principle in human nature—the feeling of expectation. In the case of acquiring or not acquiring—of retaining or not retaining—no hardship without previous expectation. Disappointment is expectation thwarted: in the distribution of property, no sense of hardship but in proportion to disappointment. But expectation, as far as the law can be kept present to men’s minds, follows with undeviating obsequiousness the finger of the law. Why should I suffer (bodily distress from want out of the question)—why should I suffer, if the property I call mine, and have been used to regard as mine, were to be taken from me? For this reason, and no other: because I expected it to continue with me. If the law had predetermined that the property I am now using as mine, should, at the arrival of the present period, cease to be mine, and this determination of the law had been known to me before I began to treat it as mine, I should no longer have expected to be permitted to treat it as mine: the ceasing to possess it, the ceasing to treat it as mine, would be no disappointment, no hardship, no loss to me. Why is it that I do not suffer at the reflection that my neighbour enjoys his own property, and not I? Because I never expected to call it mine. In a word, in matters of property in general, and succession in particular, thus then stands the case: hardship depends upon disappointment; disappointment upon expectation; expectation upon the dispensations, meaning the known dispensations of the law.
The riddle begins to solve itself: a part taken, and a sense of burthen left; the whole taken, and no such effect produced: the effect of a part greater than the effect of a whole: the old Greek paradox verified, a part greater than the whole† Suffer a mass of property in which a man has an interest to get into his hands, his expectation, his imagination, his attention at least, fastens upon the whole. Take from him afterwards a part; let it be such a part and no other, as at the time of his beginning to know that the whole was to come into his hands, he knew that he would have to quit: still, when the time comes for giving it up, the parting with it cannot but excite something of the sensation of a loss—a sensation which will of course be more or less pungent according to the tenacity of the individual. Ah! why was not this mine too? Ah! why must I part with it? Is there no possible means of keeping it? Well, I will keep it as long as I can, however; and, perhaps, the chapter of acculents may serve me. Take from him now (I should not say take,) but keep from him the whole; so keeping it from him that there shall never have been a time when he expected to receive it. All hardship, all suffering, is out of the case: if he were a sufferer, he would be a sufferer indeed; he would be a sufferer for every atom of property in the world possessed by anybody else; he would be as miserable as the world is wide.*
Under a tax on successions, a man is led, in the first place, to look upon the whole in a general view as his own: he is then called upon to give up a part. His share amounts to so much—this share he is to have; only out of it he is to pay so much per cent. His imagination thus begins with embracing the whole; his expectation fastens upon the whole: then comes the law putting in for its part, and forcing him to quit his hold. This he cannot do without pain: if he could, no tax at all, not even a tax on property, would be a burthen; neither land-tax nor poor’s-rate could be too high.†
The utility of that part of the proposal which gives to the public officer possession of the whole, whether the public, in conclusion, is admitted to the whole, or only to a part, may now be seen in full force. It is a provision not more of prudence with a view to the public, than of tenderness with a view to the individual. Had he been suffered to lay his hands upon the whole, being afterwards or even at the time called upon to give up a part, his attention would unavoidably have grasped the whole: the giving up the part would have produced a sensation, fainter perhaps, but similar to that produced by an unexpected loss: on the other hand, as according to the proposal he takes nothing that he does not keep, no such unpleasant sensation is produced.
The case where the individual sees a share go from him for the benefit of the public, in the way of partition, stands in this respect between the case where the public is let into the whole, and that where a part is taken from him in the way of a tax. Whether, on this plan of partition, the individual shall feel in any degree the sensation of a loss, will depend partly upon the mode of carving out the share—partly upon the proportion taken by the law—partly after all upon the temper and disposition of the individual. As to the mode of carving, the whole secret lies in taking the public officer and not the individual for the carver, for the reasons that have been seen. As to the proportion,—to come back to the paradox, the larger the share of the public the better, even with reference to his feelings; for the larger it is, the more plainly it will show as a civil regulation in matters of succession: the smaller, the more palpably it will have the air of a fiscal imposition—the more it will feel, in short, like a tax. The more is taken under the name of a tax, the more burthensome the measure, as everybody knows: at the same time, the more is taken for the public under the name of partition, so long as an equal or not much more than equal share is left to the individual, the farther the measure from being burthensome, because the farther from being considered as a tax. The Roman tax of five per cent. on collateral successions was considered as a heavy burthen: a tax of fifty per cent. imposed under the name of a tax, would have been intolerable: at the same time, pass, instead of the tax, a law of inheritance, giving the public fifty per cent. upon certain successions, the burthen may be next to nothing: pass a law of inheritance, giving the public the whole, the burthen vanishes altogether. The dominion of the imagination upon the feelings is unbounded: the influence of names upon the imagination is well known. Things are submitted to without observation under one name, that would drive men mad under another. Justice is denied to the great bulk of the people by law-taxes, and the blind multitude suffer without a murmur. Were the distribution of justice to be prohibited in name, under a penalty to the amount of a tenth part of the tax, parliament would be blown into the air, or thrown into a mad-house.
Would it be better, then, upon the whole, for the public to take all, and let no relation in for a share? Certainly not in every case: the law is powerful here; but even here, the law is not absolutely omnipotent. It can govern expectation absolutely, meaning always in as far as it makes itself present to the mind: it can govern expectation absolutely; but governing expectation is not everything. It may prevent me from being disappointed at not having bread to eat; but if, by preventing my having bread to eat, it starves me, it will not prevent me from suffering by being starved. It can save me, in this way, from ideal hardship, but not from corporal sufferance. It can save me from disappointment at not beginning to enjoy, but it cannot save me from disappointment at not continuing to enjoy, after the habit of enjoyment has grown upon me. Hence the necessity of consulting the rules of precautionary tenderness that have been exhibited above.
Unburthensomeness is a praise that belongs to this mode of supply in another point of view: with reference to the business of collection. In many instances, so great is the incidental burthen accruing from this source, as almost to rival in real magnitude, and even eclipse in apparent magnitude, the principal burthen which is the more immediate fruit of the fiscal measure. This is more eminently the case in the instances of the customs and the excise—of those branches of taxation by which by far the largest portion of the revenue is supplied. The officer of excise goes nowhere where he is not a guest; and of all guests the most unwelcome. The escheator will have nowhere to go where he is not at home—into no habitation, into no edifice, not so much as upon a foot of land, which is not to this purpose—which is not, as against all individuals, his own. No jealousies—no collision of rights—no partial occupations extorted at the expense of the comfort and independence of proprietors. The excise is not only the most productive branch of the revenue, but the most capable of extension, and therefore the most liable to be extended. It can surely be no small merit in the proposed supply, in addition to its other merits, that in proportion as it extends, in the same proportion it puts a stop to the extensions of the excise.
2. The advantages that follow are of minor importance. The advantage of checking litigation in this way, by the diminution of its aliment, is, however, not to be despised. The fishing in the troubled waters of litigation, for the whole or a part of the property of a distant relation, or supposed relation, is one of the most alluring, and at the same time most dangerous pursuits, by which adventurers are enticed into the lottery of the law. It is like the search after a gold mine—a search by which the property of the adventurer is too often sunk before the precious ore is raised. Causes of this nature are by no means unfrequent in Westminster Hall; the famous. Selby cause was a bequest nominally to relations, really to the profession. This source of litigation would be effectually dried up by the measure here proposed.
An item which may naturally enough be added to the account of advantage, is the favour shown to marriage, and in particular to prolific marriages—the sort of marriages of which the title to legislative favour stands in the most plausible point of view.
That the influence of the system in question would be favourable to marriage, and in particular to prolific marriage, will hardly be disputed. Of fathers and mothers of families, it leaves the powers untouched:—it places them, in comparison with single persons of both sexes, in a situation of privilege and preeminence. Within the threshold of him whose marriage has fulfilled the ends of marriage, the foot of the officer of the revenue has no place. His will is executed in all points; whatever he bequeathes—to whomsoever he bequeathes it—offspring, relation, or stranger—passes without deduction. Whatever restriction it imposes, is all at the expense of the celibatary and unmarried. If with propriety it could be styled a tax, it would be a tax on celibacy.*
An advantage of a less questionable nature is the popularity which seems the natural effect of any measure wearing the complexion above mentioned; for popularity, it must be confessed—popularity, how hollow soever be the ground it stands upon—can never be refused a place among the advantages of a measure. Satisfaction on the part of a people—satisfaction, so long as it subsists, is a real good—so long as it subsists, its title to that appellation is altogether independent of the source from which it flows. If, indeed, the utility of the measure be illusory, then, indeed, when the illusion is dispelled, there is an end of the advantage; but the advantage, so long as it continued, was not the less real. Happily, in the present instance, the advantage is not only real, but pure. Though in the way of affording encouragement to marriage, the proposed measure should in truth be of little service, any farther than as it happened to be thought to be so, the pleasure of seeing it popular on this score may be indulged with the less reserve, as the delusion, if it be one, is not in this instance attended with any pernicious consequences.
If the proposal relative to this resource be not an original one, its want of originality may be seen to afford an objection. If not original, it has been proposed: and if it has been proposed, it has been rejected, for assuredly it has not been adopted anywhere.
A tax on successions might at first glance present itself as bearing a resemblance to the resource in question; as being a sort of modification of it—a commencement towards it—as forming in a manner a branch of it. But we have already seen how perfectly dissimilar, or rather opposite in effect, the tax is to the regulation, and how much the difference is to its disadvantage. A tax on successions lies as heavy on the individual as it falls light into the Exchequer.
Taxes on successions (not to mention the old Roman tax, the vicesima hereditatem, the 5 per cent. on collateral successions) exist already in this country: they exist in the form of a stamp-duty, in some degree proportional, on probates and letters of administration: they exist in the form of a stamp duty on receipts for legacies and distributive shares. As to the duties on legacies, in what proportion they are paid I do not know; but I am sure they are evaded, and very frequently evaded. One should be almost sorry if they were not evaded: they are evaded in proportion as confidence prevails in families. The whole mass of property goes in the first place into the hands of individuals; a course which, indeed, it could not but take, so long as the resource is left to stand upon the footing of a tax. The private executor sets out with getting everything into his hands: the public gets what this most confidential friend of the deceased thinks proper to bestow; of course he will not bestow anything at the expense of the friend of his testator, so long as he can persuade himself with any tolerable assurance that the person he is befriending will not requite his generosity with such a degree of baseness as to make him pay the legacy over again out of his own pocket.
Another circumstance concurs in diminishing the productive power of a tax upon successions. When the duty amounts to a sum which appears considerable, the levy being a tax—a tax to be levied on an individual, and levied all at once, it wears so formidable an aspect, that the man of finance himself is startled at it: he accordingly reduces the rate, and the higher the legacy amounts, the more he reduces it; so that all proportionality is destroyed. By this means, the better a man can afford to pay, the less it is he pays; and the tax has the appearance of a conspiracy of the richer against the poorer classes of mankind.
Whence comes this? Only from its being raised by a tax, and not by a regulation, as above proposed. Under the regulation, the public will pay itself; the officer of the public will have the staff in his hands; a partiality as unfriendly to the interests of finance as it is unseemly in the eyes of justice, will disappear, and wealthy successions will yield in proportion to their opulence.*
To Mr. —
Instead of the matter destined for the present section, I must content myself for the present with sending you little more than a blank. I could not have filled it up without attempting to lead you into a labyrinth of calculations, which, after all, I could not render complete, for want of data, without your assistance, and which, if the principle of the measure should not be approved of, would have no claim to notice.
Meantime, as the result of the calculations need not wait for the calculations themselves, and as a supposition of this sort, however imperfectly warranted, may be more satisfactory than a total void, I will beg your indulgence for the following apperçu.
Net annual produce of this resource, upwards of £2,000,000 over and above the expense of collection:—
It is natural I should be over sanguine; but I must confess I should expect to find the above sum below the mark, rather than above it. The calculations in their present state point at three millions; but then there are deductions to be made on one hand, as well as additions on the other.*
For my own part, if it depended upon me, I should be very much disposed to turn my back upon calculations; for if the principle of the resource be but approved of, £200,000 a-year would be as sufficient a warrant for it as £2,000,000, since, whether much or little, it would be all so much clear gain, unfelt by anybody in the shape of a loss.
The calculations, however, such as they are, can be submitted at any time upon a day or two’s notice. They will, at any rate, afford a view of the data the subject affords, of the difficulties to be overcome, and of the uncertainties which are not capable of being cleared up without the aid of parliament.
A word or two may not be amiss respecting the application of the produce. In general, this topic may seem foreign enough from the consideration of the supply itself; but that, as we shall see, is not altogether the case here.
In time of full peace, the floating debt provided for, there are but two options with regard to the application of a new supply: reduction of debt and extinction of taxes; for current service is already provided for by existing funds.
In time of war, there are two additional options: pledging for interest of loans, and application to current service.
I will begin with the case of war; for though the measure would be equally fit for establishment at either season, yet war is certainly that which holds out to it the most promising chance for being actually established. Necessity, the mother of invention, may then be the mother of adoption too, which of the two, is by much the hardest offspring to bring forth.
I should not wish, or even expect, to see the produce of this resource appropriated to current service; I should not wish, or even expect, to see it among the mass of pledges given as security for a loan. The novelty of its complexion, the uncertainty of its amount, both seem to preclude it from either destination: it may be prodigious, it may be nothing; there is no saying what it may be taken for; resources more according to the usual model, and therefore regarded as more certain—taxes, in a word, would be the supplies naturally destined to such service.
There remain, discharge of debt, and extinction of taxes. Between these two employments I would wish to see it divided, and perhaps pretty equally divided.
There is one portion that could not well be refused to the discharge of public debt—even in war-time—even under the pressure of any exigency: I mean the portion which exists already in that shape—where the property consists of a debt due from government, to be discharged by an annuity till paid off; in a word, property in government-annuities, or (as it is commonly termed, to the great confusion of ideas) money in the funds. The extinction of so much of the debt is here so natural a result, that it may be set down as an unavoidable one:—to keep the debt alive, and sell it for the benefit of government (just as, if it had fallen into individual hands, it might have been sold for the benefit of individuals,) will surely not be thought of.
Remit taxes? and that in war time? That would be an extraordinary employment for it indeed! Extraordinary, indeed, but not on that account the less eligible: novel blessings shine but the brighter for being new.
An opportunity would, by this incident, be presented, and perhaps this is the only incident by which such an opportunity could be presented, of shaking off the yoke of some of the most oppressive taxes. The whole list would then be to be overhauled, and the worst chosen, picked out, and expunged.†
Those which, to my conception, would stand at the head of the list, are, as I have said already, the taxes upon justice. In relation to these, I can speak with confidence, having sifted them to the bottom, and demonstrated them—or I know not what demonstration is—to be the worst of all taxes, actual or possible.
Further from the precise limits of the subject I will not attempt to stray; unless it be for a fantastic moment in the way of reverie. Pure as we have found the resource to be from hardship, and, in all human probability, from odium, how pregnant may we imagine it at least to be of relief! No law-taxes—no prohibition of justice. No tax on medical drugs—no prohibition of relief from sickness and from death. No window-tax—no prohibition of air, light, health, and cheerfulness. No soap-tax—no prohibition of cleanliness. No salt-tax—no prohibition of the only sustenance of a famished people.* Make the most of this resource, and, if not all these reliefs, at least the most essential of them, might, perhaps, be afforded, even under the pressure of the war. To do all this, and government never the poorer! To do all this, and have a rich surplus for the sinking fund! what a feast for humanity! what a harvest of popularity! what a rich reward for wisdom and virtue in a minister!
It is scarce necessary to observe, that neither in any of those ways, nor in any other, should specific relief be engaged for, till the means of relief are actually in hand. The produce should be taken for nothing, till it is actually in the Exchequer. When a year of probation is elapsed, the amount will, for any reason that can be alleged to the contrary, be as uniform as that of the steadiest tax.
HEADS OF OBJECTION, WITH ANSWERS.†
Objection I. Supposed tendency to promote dissipation of the national wealth, by leading men to live upon their capitals, or sell them for annuities for their own lives, in consequence of their being restrained from benefiting those that are dear to them after their death.
Answer: No such tendency; for—
1. A man will not bar those that are dear to him, from receiving any part, only because there is some part that he cannot enable them to receive.
2. Nor himself from disposing in that manner of any part, only because there is some part that he can not so dispose of.
3. The power of benefiting others after death is not the sole motive to accumulation: another, and a still stronger and more universal one, is the faculty of increasing a man’s fund of personal enjoyment during life—a faculty which would be at a stand, if he parted with his capital for an annuity.
4. Such dissipation, were it really to be, in here and there an instance, the result of the measure, would only be a diminution, and that a most trifling one, from the benefit of it—not any objection to the principle of it.
Objection II. Breach of faith in the instance of property in the funds.
Answer: Not unless confined to that species of property, which is not proposed,—
No more than the existing taxes on distributive shares and legacies, which, in as far as there is nothing else to pay them, must come out of any property a man had in the funds: no more than any tax on consumption, which must fall upon stockholders in common with other people; since, in as far as a man’s own income arises out of the funds, every tax he pays is paid out of what he has in the funds.
Property is not in this way the more affected for being in the funds; since in any other shape it would be equally reached by the proposed regulation.
Objection III. Breach of faith in the instance of foreign stockholders resident abroad, who would not have been affected by the taxes in lieu of which this would come.
Answer: None; for they may sell out.
Reply: The sort of obligation they will thereby be laid under to sell out, is still a hardship; the more, as their submitting to it will lower the price.
Answer: Yes; were many likely to sell out on this account, but that is not in the case,—
1. Because much of such stock is in the hands of bodies corporate.
2. Among individuals, it is but a small proportion that will be destitute of relations within the pale.
3. Fewer still who would take to heart to such a degree a restriction from which a man’s near relations stand exempted.
4. Feeling it to be in his power to sell out at any time, a man would neither sell out at first nor afterwards.
Objection IV. It is pro tanto very much exposed at least to evasion.
Answer: 1. To none but what may be pretty effectually guarded against by proper registers, &c.
2. If it could not, the objection applies, not to the principle of the measure, but only to the quantum of advantage.
3. It removes pro tanto the objection of breach of faith: so far as a man evades, so far he is not hurt.
Objection V. Tendency to sink the price of land by glutting the market with it.
Answer: 1. No reason for supposing it will tend to sink the price in one way, more than it will to raise it in another; for,
I. Income arising out of land being more generally eligible, will always fetch more than equal income arising out of the funds—still more than equal income depending upon mere personal security.
II. Nothing, therefore, can sink the price of land, without sinking that and the price of stocks together; nor without sinking the price of stocks more than the price of land; nor raise the price of stocks without raising the price of land.
III. It will tend to raise the price of stocks at any rate, as to that part of the property it attaches upon, which it finds already in the shape of stock, and which it will of course extinguish and take out of the market. As also in respect of whatever other part is applied to the extinction of the public debt.
Admitted, that a depreciation in the price of property in land, in comparison with that of property in the funds, might take place, if land were as yet at a monopoly price, as Adam Smith seems to think it is. B. iii. c. 4.
But this does not seem to be the case, since a man can make three per cent. by laying out his money in land, when he can make but three and a half per cent. by laying it out in the funds; which is no more than an adequate difference for the difference in point of general eligibility between the two sources of income.
2. A fall in the price of land is considered not as an ineligible, but as an eligible event, by Adam Smith (B. iii. c. 4,) though not by me, who, referring everything to the feelings of individaals, regard the sensation of loss thus produced, as an evil outweighing every possible advantage.
Objection VI. Money thus obtained will be collected at greater expense than if obtained from taxes.
Answer: 1. No particular reason for thinking so.
2. Were this clear, it would afford no objection, because none of the hardship would be produced here, which is the result of expense when defrayed by taxes.
Objection VII. Increase of the influence of the crown by the new places that would be necessary.
Answer: 1. Not more from this mode of supply, than from any other of equal magnitude.
2. Were the objection anything determinate, the weight of it would bear, not against a useful establishment like this, but against useless or less useful places.
3. The objection, if it were worth while, might be got rid of in part, by giving the appointment of escheators to the freeholders, who now have the appointment of coroners.
Objection VIII. The powers that must be given for the purpose of collection would be abused.
Answer: 1. This mode of supply is not more open to abuse of power, to the prejudice of the individual, than any other.
2. Abuse of power by undue indulgence to the individual, to the prejudice of the revenue, goes only to the quantum of the advantage, and forms therefore no objection to the principle of the measure; and as to the individual, so far as he is indulged, duly or unduly, he is not hurt.
3. Abuses of both kinds may be more effectually checked in this instance than in others; viz. by the publicity that, even for other purposes, would require to be given to the proceedings.
The remark, though bad as an objection, is good as a warning, and as such would be attended to.
Objection IX. By the facility it would give to the business of supply, it would be an encouragement to profusion on the part of government.
Answer: If this were an objection, the most burdensome mode of supply would be the best.
Rendering supply more burthensome than it might be, is a remedy worse than the disease; or rather an aggravation of the disease, to the exclusion of the remedy.
The following are the suppositions which the objection must take for granted:—1. That all expenditure is unnecessary; 2. That this mode of supply would be submitted to; 3. That no other would.
It would be a strange inconsistency if those who could not be brought to adopt other modes of checking profusion, could, in the mere view of checking profusion, be brought to reject this mode of supply.
Objection X. It would make a revolution in property.
Answer: The tendency of this objection, the force of which consists altogether in the abuse of a word, is to point to a wrong object the just horror conceived against the French revolution. The characteristic of that revolution is to trample in every possible way upon the feelings of individuals. The characteristic of this measure, is to show more tenderness to those feelings, than can be shown by the taxes to which it is proposed to substitute it.
Objection XI. The property of the nation would thus be swallowed up in the Exchequer.
Answer: No more than by taxes to the same amount.
Objection XII. It would be a subversion of the ancient law of inheritance in this country.
Answer: A quiet alteration, made by a mere extension given to the old law—to a branch more ancient than almost any of those at the expense of which it is extended. No subversion, except in as far as every amendment is a subversion.
Objection XIII. It would be an innovation.
Answer: No more than every new law; nor, as we have seen, so much as most new laws: no more than a set of taxes to the same amount.
Not so much; for all the revenue laws we have, are innovations in comparison with the law of escheat.
Can anything of harshness be imputed to the proposed measure? Not when viewed by itself, we have seen already. View it, then, in comparison: turn to existing law. No exclusion of the father here as there on pretence of the ponderosity of inheritances: no exclusion of the half-blood, as if the son of my father or my mother were a stranger to me: no exclusion of all children but the first born, as if the first born only lived upon food, and all others upon air: no exclusion of the better half of the species, as if the tender sex had no need of sustenance. The feelings of individuals—sole elements of public happiness—these, and these only, are the considerations that have here been exclusively consulted, and their suggestions undeviatingly adhered to;—human feelings, the only true standards of right and wrong in the business of legislation, not lawyers’ quibbles, nor reasons of other times, that have vanished with the times.
Pursue the comparison yet farther: on the one hand, no harshness at all, as we have seen; on the other, a harshness which is incurable. The proposed law, taking nature for its guide, leads expectation by a silken string: the existing law, pursuing the ghosts of departed reasons, thwarts expectation at every step, and can never cease to do so. It does so, because it is in the speechless shape of common law; and it would do so still, even though words were given to it, and it were converted into statute law. Reasons rooted in utility, are so many anchors by which a law fastens itself into the memory: lawyers’ quibbles are a rope of sand, which neither has tenacity of its own, nor can give stability to anything else. Rules and quibbles together, the impression they make upon the mind is that of the wind upon the waves; and when incidents spring up to call them into action, the sensation produced is the sensation of a thunder-stroke.
Shall we dig into antiquity? The result will be still more favourable. Reckoning from the subversion of the Roman empire, property, considered as surviving to the proprietor, is comparatively of modern date. Under the feudal system, in the morning of its days estates greater than life estates were unknown; the most fixed of all possessions fell back into the common stock upon the death of the possessor; and before the reign of the Conqueror was at an end, the feudal tree, transplanted from the continent into this our island, had covered almost the whole surface of the kingdom with its gloomy shade. This venerable system had, indeed, before that period, lost a good deal of its vigour, which is the same thing as to say its rigour; and the principle of succession had taken root under it, but not without being loaded with conditions, and weakened by defalcations and distortions, over and above those which have been already glanced at, and which we are plagued with to this day. The relaxation, too, was an innovation, which, in the vocabulary of antiquarian idolatry, as well as of indiscriminating timidity, means a corruption of the primeval state of things.
At a much later period, moveable property took, if not exactly the same course with immoveable, a course more opposite to that indicated by utility, and equally repugnant to that which seems prescribed by nature. The more substantial part—the immoveable—had been reserved for the maw of feudal anarchy: the lighter part—the moveable—was carried off by some holy personage for pious uses; and of all uses, the most pious was his own. Moveable and immoveable together, power without mercy, or imposture without shame, took the whole under their charge; the claims of the widow and the orphan were as little regarded as those of the most distant relative. So late even as the latter part of the reign of Edward III.* it required an exertion of parliamentary power to make the man of God disgorge, in favour of the fatherless and the widow.†
The right of bequest, the right of governing property by one who is no longer in existence to enjoy it, is an innovation still more modern. In its relation to moveables, it was conquered from the spiritual power by gradual and undefinable encroachments: the validity of its exercise having, from the conquest to the present time, depended on the decision of that same power, which, till the above-mentioned statute of Edward III. was interested in denying it: and after the right was secured, the facility of its exercise must for a long time have been confined within narrow bounds by the scarcity of literary acquirements. In its relation to immoveables, it was not placed on solid ground till the statute of Henry VIII., and then only by implication: nor (to take the matter in the words of Blackstone) was it “till even after the restoration, that the power of devising real property became so universal as at present.”*
All this while, the law of escheat, coeval with the reign of the Conqueror, dwelt upon as a subject of importance in the reign of Henry II.,† touched upon by a numerous series of statutes reaching down as low as Edward VI., recognised by decisions of so recent a period as the late reign,‡ exists in indisputable vigour; although the facility of tracing out heirs in these times of universal and instantaneous communication, added to the want of an administrative establishment, adapted to the collection of such a branch of revenue, prevent it from being noticed in its present state in the account-book of finance.
Isopinion worth resorting to? A poor warrant, after the fiat of utility written in characters so legible. In morals, in politics, in legislation, the table of human feelings is, I must confess, to me what the Alkoran was to the good Mussulman: opinions, if unconformable to it, are false—if conformable, useless. Not so to many a worthy mind: for their satisfaction, then, even this muddy source of argument shall not remain unexplored. Shall Blackstone, then, be our oracle? Blackstone, the most revered of oracles, though the latest? From him we have full licence—from him we have a latitude outstretching, and that even to extravagance, the utmost extent which either humanity or policy would permit us to assume. But let us hear him in his own words:—
Blackst. Comment. II. 12. “Wills, therefore,” says he, “and testaments, rights of inheritance, and successions, are all of them creatures of the civil or municipal laws, and accordingly are in all respects regulated by them; every distinct country having different ceremonies and requisites to make a testament completely valid: neither does anything vary more than the right of inheritance under different national establishments. In England, particularly, this diversity is carried to such a length, as if it had been meant to point out the power of the laws in regulating the succession to property, and how futile every claim must be, that has not its foundation in the positive rules of the state.”—“In personal estates, the father may succeed to his children; in landed property, he can never be their immediate heir, by any the remotest possibility; in general, only the eldest son, in some places only the youngest, in others, all the sons together, have a right to succeed to the inheritance: in real estates, males are preferred to females, and the eldest male will usually exclude the rest: in the division of personal estates, the females of equal degree are admitted together with the males, and no right of primogeniture is allowed.”
Thus far our Apollo. Legatees, we see, are nothing to him; he sacrifices parents to us, and even children; he sees not that children are not only expectants, but co-occupants.
No sympathy for disappointed expectation—no feeling for beggared opulence—no regard for meritorious service—no compassion for repulsive infirmity, obliged to forego assistance, or to borrow it of selfish hope. The law, his idol, has no bowels: why should we? The rights of legatees, the rights of children, are mere creatures of the law; as if the rights of occupants were anything more. Of wills, or even succession, he knows no use but to prevent a scramble.
The business of succession is a theatre which the laws of nations have pitched upon, as it were, in concert, for the exhibition of caprice; none with greater felicity than the law of England. She has her views in this, and they are always wise ones:—to insult the subject, to show him what arbitrary power is, and to teach him to respect it.
“This one consideration,” continues he, “may help to remove the scruples of many well-meaning persons, who set up a mistaken conscience in opposition to the rules of law. If a man disinherits his son by a will duly executed, and leaves his estate to a stranger, there are many who consider this proceeding as contrary to natural justice; while others so scrupulously adhere to the supposed intention of the dead, that if a will of lands be attested by only two witnesses instead of three, which the law requires, they are apt to imagine that the heir is bound in conscience to relinquish his title to the devise. But both of them certainly proceed upon very erroneous principles; as if, on the one hand, the son had by nature a right to succeed to his father’s lands; or as if, on the other hand, the owner was by nature entitled to direct the succession of his property after his decease. Whereas, the law of nature suggests, that on the death of the possessor, the estate should again become common, and be open to the next occupant, unless otherwise ordered for the sake of civil peace by the positive law of society.”
“The right of inheritance,” says he but two pages before, “or descent to the children and relations of the deceased, seems to have been allowed much earlier than the right of devising by testament. We are apt to conceive at first view, that it has nature on its side,* yet we often mistake for nature, what we find established by long and inveterate custom.”† It is certainly a wise and effectual, but clearly a political establishment,‡ since the permanent right of property,§ vested in the ancestor himself, was no natural but merely a civil right.∥
What we learn from all this is, that so long as a man can find a pretence for getting rid of the phrase, “contrary to natural justice,” there is no harm in his children’s being left by him to starve; and that those who would make a “conscience” of leaving their children thus to starve, are “well-meaning” but “mistaken” people. Quere, who is this same Queen “Nature,” who makes such stuff under the name of laws? Quere, in what year of her own, or anybody else’s reign, did she make it? and in what shop is a copy of it to be bought, that it may be burnt by the hands of the common hangman, and her majesty well disciplined at the cart’s tail?
It being supposed, in point of fact, that the children have or have not a right of the sort in question given them by the law, the only rational question remaining is, whether, in point of utility, such a right ought to be given them or not? To talk of a law of nature, giving them or not giving them a natural right, is so much sheer nonsense, answering neither the one question nor the other.
TAX WITH MONOPOLY; OR HINTS OF CERTAIN CASES IN WHICH,
Taxes on the profits of traders would, generally speaking, be impracticable:—
1. The difficulty of ascertaining the profit and loss upon each article would be an endless source of evasion.
2. The measures necessary to be taken against evasion, would be an equally endless source of real or supposed oppression.
3. The disclosure of the secrets of the trade would operate as a prohibition of ingenuity and improvement.
In the business of a stock-broker, none of these objections have place:—
1. & 2. No difficulty about ascertaining profit and loss: loss, none in any case: rate of profit perfectly fixed: the transactions which gave birth to it are always upon record.
3. No secret, no inventions, no improvement in the case.
1. 2. & 3. No more difficulty about ascertaining profit and loss, nor anything more of invention than in the case of stock-brokers.
The profit of the banker results from the placing out at interest, in large sums, what he finds to spare, out of the money he receives in large and small sums, on condition of returning it as it is wanted.
If in this case there be any such thing as a secret, the disclosure of which might be attended with prejudice to anybody, it lies in the money transactions of the customers, who deposit the money and draw for it, and of those who, by getting bills discounted or otherwise, deal with this shop in the character of borrowers. Were the knowledge of these transactions generally spread, or were it easily attainable, it might in some instances be attended with prejudice to the parties, by the information given to rivals in business, or other adversaries. But, for the purpose in question, the knowledge in question might be confined in each instance to a single accountant appointed by the crown, whose attention would be confined to the mere figures having neither time to inquire, nor interest in inquiring, into the history of any transaction, in the occasion of which this or that sum was drawn for or deposited.
So much for the tax—the burthen. Now as to the exclusive privilege—the compensation. The effects to which this sort of institution, in as far as it is mischievous, stands indebted for its mischievousness, are—
1. Enhancement of the price of the article dealt in.
2. Impairing the quality.
3. Lessening consumption, in the case of consumable goods:—or more generally, diminishing the general mass of benefit depending upon this use of the sort of article, whatever it may be.
4. Enhancement of trouble to the customer, by his having farther to go than if dealers were more numerous.
5. [The exclusion of persons already embarked in the business, a still greater grievance, if it existed, is out of the question here.]
None of these ill effects would take place in any degree, in the instance of either of the above professions. Thus, in the case of
The Stock Broker.
1. The price of the service rendered is a fixed per centage; it is amply sufficient: enhancement might be prevented by law.
2. The quality of the service cannot, from the nature of it, either be improved or impaired: neither skill nor invention, nor so much as any extraordinary degree of exertion, have anything to do with it.
3. The demand for this sort of service cannot in the nature of things, be lessened, or anyways affected, by the limitation of the number of the persons whose profession it is to render it, or by the fixation of the price at which they are to render it.
4. The distance between the agent and his employer cannot receive any enhancement from the exclusive privilege, or from anything else. The agents, how numerous soever, are confined to a spot by the very nature of their business.
1. The service of receiving and keeping—the service rendered to the depositor of money, is rendered gratis, and though the number of bankers should ever be lessened, there can be no apprehension of their requiring payment for this service.
The price at which the other sort of customer, the borrower, is supplied, is equally incapable of being raised by the operation; the rate of interest will depend upon the quantity of capital accumulated in the whole country, not upon the quantity that happens to be in the hands of bankers. A confederacy, and that a successful one, among all the bankers, town and country, to raise the rate of interest, is in itself scarce possible; besides that the rate is actually limited by law.
2. The quality of the service is as little susceptible of being impaired by such a cause: it is more likely to be improved: each bank being rendered richer, and thereby safer, in proportion as the number is kept down.
3. As little is the demand for this sort of service capable of being lessened by the restriction of the number of hands allowed to render it: the demand for the service, consisting in the keeping of money, will depend upon the quantity of money to be kept: the demand for the service consisting in the loan of money, will depend upon the quantity of money wanted for a time by those who have value to give for it when the time is over. In neither of these instances has the demand anything to do with the number of the persons whose business it is to render this sort of service.
4. The distance between the professional man and his customer and employer need not receive any enhancement in that case, any more than in the other. Distance has never been a matter much regarded in this branch of business. As to the London bankers, instead of spreading themselves equally within the circle of the metropolis, their object seems rather to have been to crowd into, or as near as possible to, Lombard Street.
In the country, whatever distance the depositor and borrower have been used to go, they might contrive to go, were it necessary, without much inconvenience. The inconvenience might be done away entirely by proper reservation, adapted to future demands in places where as yet there is none.
A calculation might easily be made of the progressive value of the indemnity, from retrospective view of the gradual increase in the number of bankers on the one hand and in the quantity of circulating cash and paper deposited on the other.
The advantages of monopoly find their way without much difficulty to the eyes of dealers.*
Monopoly would be no innovation in this branch of business; an illustrious example is afforded by the bank of England.
Should the principle be approved of, it might be worth while to look over the list of trades, professions, and other lucrative occupations, for the purpose of ascertaining the instances in which this species of compensation might be given, without any such inconvenience as would outweigh the benefit.
The exclusive privilege being a benefit, ought of course to be coupled with the tax in every instance where it is not attended by a proponderant mass of inconvenience to the public at large.
The stock of these cases being exhausted, then, and not till then, may be the time to look out for the instances, if any, in which the tax might stand alone without the indemnity to lighten it.
end of volume ii.
[* ]By a subsequent decree of the Convention, this silly provision was actually made law, under the notion of favouring liberty. The liberty of doing mischief, it certainly does favour, as certainly as it disfavours the liberty of preventing it. Ask for a reason: a man’s house, you are told, is his castle. Blessed liberty!—where the trash of sentiments—where epigrams, pass for reasons, and poetry gives rule to law! But if a man’s house be his castle by night, how comes it not to be so by day? And if a house be a castle to the owner, why not to everybody else in whose favour the owner chooses to make it so? By day or by night, is it less hardship to a suspected person to have his house searched, than to an unsuspected one? Here we have the mischief and the absurdity of the ancient ecclesiastical asylums, without the reason.
[* ]Introduction to the Principles of Morals and Legislation, first published 1789. See Vol. I. p. 154.
[* ]See Essay on the Levelling System, Vol. I. p. 358.
[* ]In modern times, one of the most fruitful sources of war has been the limits of new discoveries. They have sometimes been traced by common agreement:—but this has seldom happened till after wars or discontents which have sown the seeds of wars. It would be better to undertake such labours in cool blood, and to make previous arrangements with regard to possible discoveries, without waiting till they are made. It was thus that a pope once thought, with a mathematical line, to have for ever crushed the seeds of future wars. This was not ill-imagined at a time when the earth was flat, and the servant of servants was the ruler of kings. Since that time the earth has become round, and the power of the triple crown is somewhat retrenched. Still, however, that demarcation is not the less good as a lesson, how defective soever it may be as a law. The difficulty would be to trace such limits as should agree with objects which have not been seen. An island, for example: in what case ought the whole of it to belong to those who first discovered it, and when to many others who have equally touched at it? Ought it to belong to him who first saw it without entering it,—to him who first entered it,—or to him who first went round it? How also shall an island in every case be distinguished from a part of a continent, or even from an entire continent, which may be very extensive? And when it respects a discovered continent, to what distance shall the right of possession extend? Shall it be the space inclosed by the sea, the two nearest navigable rivers, and the high ground in which these rivers take their rise? What depth shall constitute a navigable river? &c. In these points may be seen a crowd of questions sufficiently difficult of resolution.
[* ]Country allegiance, sovereignty and subjection, may therefore be either fixed and regular, or occasional.
[* ]The following sentences are taken from Bentham’s “Projet Matiere.”—Ed.
[* ]See Essay IV. p. 546.
[* ]Two original writers have gone before me in this line, Dean Tucker and Dr. Anderson. The object of the first was to persuade the world of the inutility of war, but more particularly of the war then raging when he wrote; the object of the second to show the inutility of the colonies.
[* ]Reasons for giving up Gibraltar:—
[† ]It is in proportion as we see things—as they are brought within the reach of our attention and observation—that we care for them. A minister who would not kill one man with his own hands, does not mind causing the death of myriads by the hands of others at a distance.
[* ]All bounties on particular branches of trade do rather harm than good.
[† ]Precedents.—1. Convention of disarmament between France and Britain 1787,—this is a precedent of the measure or stipulation itself; 2. Armed neutrality code,—this is a precedent of the mode of bringing about the measure, and may serve to disprove the impossibility of a general convention among nations; 3. Treaty forbidding the fortifying of Dunkirk.
[* ]This brings to recollection the achievements of the war from 1755 to 1763. The struggle betwixt prejudice and humanity produced in conduct a result truly ridiculous. Prejudice prescribed an attack upon the enemy in his own territory,—humanity forbade the doing him any harm. Not only nothing was gained by these expeditions, but the mischief done to the country invaded was not nearly equal to the expense of the invasion. When a Japanese rips open his own belly, it is in the assurance that his enemy will follow his example. But in this instance, the Englishman ripped open his own belly that the Frenchman might get a scratch. Why was this absurdity acted? Because we were at war,—and when nations are at war something must be done, or at least appear to be done; and there was nothing else to be done. France was already stripped of all its distant dependencies.
[* ]Turgot and Vergennes
[* ]May 22, 1789.
[† ]It lies upon the other side, at least, to put a case in which want of secresy may produce a specific mischief.
[* ]The fate of Queen Anne’s last ministry may be referred in some degree to this cause: and owing to the particular circumstances of their conduct they perhaps deserved it.—See the Report of the Secret Committee of the House of Commons in the year 1715. The great crime of the Earl of Bute was making peace. The Earl of Shelburne was obliged to resign for having made peace. The great crime of Sir R. Walpole was keeping the peace. The nation was become tired of peace. Walpole was reproached with proposing half-a-million in the year for secret-service money. His errors were rectified—war was made—and in one year there was laid out in war four times what he had spent in the ten years before.
[* ]The MSS. from which the following work is taken, bear date from 21st to 24th June 1822, and appear to have been prepared for the press under the author’s superintendence. As the project brings out a practical illustration of the principles inculcated in the Essays on International Law, it is conceived that the account of it will form a suitable appendix to that work.
[* ]It confines itself of course to public men, or what comes to the same thing, private men speaking in the character of public. As for individuals aggrieved, they have performed their part when they have stated their own grievance.
[† ]Even in the instance of a defendant, or when the wrong is not pecuniary, the hardship of a double yoke does not cease: for the natural expense of litigation is a burden which this artificial one finds pressing on him in any case.
[* ]I say there never can be: in those other instances the event insured against is always some very simple event,—such as the death of a person,—which in the ordinary course of things is not open to dispute. Here the incident which calls for contribution, is not only disputable, but by the supposition is actually in dispute. Nothing less than litigation can ascertain legally, whether litigation has been necessary. Have you engaged with a man for his paying you a sum of money whenever it shall become necessary for you to institute or defend yourself against a lawsuit?—wait till the suit is at an end, and you will know whether he ought to pay you. A society indeed, and a very laudable one, has been established for purposes which come under this head: but the relief it affords is confined not only to criminal cases, but to a certain description of criminal cases; nor could it be rendered anything like co-extensive with the grievance.
[* ]In England, the expense of carrying through a common action, cannot be less than about £24 at the lowest rate, on the plaintiff’s side alone, [See Schieffer on Costs, 1792.] The average expense of civil suits of all sorts, taking equity causes into the account, can surely not be rated at less than double that amount, on that one side. The average expenditure of an English subject, infants and adults, rich as well as poor, taken together, has been computed by Davenant (as quoted on this occasion somewhere by Adam Smith) at £8 a-year. Six years’ income then is what a man must have in advance, before he can be admitted to take his chance for justice. Of many estimates which Dr. Anderson had met with, £20 was the highest, and he takes but ten pounds. [Interest of Great Britain with regard to her colonies, London, 1792.] No man then, we may say at any rate, can have the benefit of justice, in the ordinary way, either in making good a just claim, or saving himself from an unjust one, who cannot find, for this purpose alone, a sum equal to several years of a man’s income. From this statement it needs not much study to perceive, that for the bulk of the community, as far as ordinary cases of the civil kind are concerned, justice is but an empty name.
[† ]This species of tax would stand absolutely alone in point of depravity, were it not for the tax on drugs, as far as it extends to those used in medicine. This, as being also a tax upon distress, is so far in specie the same, but is nothing to it in degree. To recover a shilling in the way of justice, it will cost you at least £24, of which a good part in taxes: but to be admitted to buy a shilling’s worth of medicine for a shilling, it does not cost you threepence. Hospitals for the sick are not uncommon: there are none for harassed and impoverished suitors. There are Lady Bountifuls that relieve the sick from the tax on medicines, and the price of them into the bargain: but a Lady Bountiful must be bountiful indeed, to take the place of attorney and counsel, as well as of physician and apothecary, and supply a poor man with as many pounds worth of latitats and pleas, as he must have to recover a shilling. A man cannot, as we have seen, insure himself against lawsuits: but a man may insure himself, and many thousands actually do insure themselves against sickness. But these reliefs are neither certain nor general: and after all, a tax on him who has had a leg or an arm broken, a tax on him who has had a fit of the ague, gout, rheumatism, or stone, will be the worst possible species of tax, next to a tax on justice.
[* ]Dr. Adam Smith, Wealth of Nations.
[* ]For instance the case of Mr. Atkinson.
[† ]It would be curious enough to know what profit the Treasury may have drawn from that time to the present, from so extraordinary a fund; certainly, not enough to pay the salary of one of the Lords Commissioners: probably not enough to pay that of his valet-de-chambre.
[‡ ]The distinction between temerity and consciousness of blame, a distinction pervading human nature, and applicable to every species of misbehaviour, is scarce so much as known to the English law. There are scarce words for it in the language. Temerity is taken from the Roman law. Malice, the term by which English lawyers seem in some instances to have had in view the expressing consciousness of blame, presents a wrong idea, since in common language it implies hatred, an affection which in many instances of conscious guilt, may be altogether wanting:—instance, offences of mere rapacity, such as theft, robbery, and homicide for lucre.
[* ]Let us not for the purpose of any argument, give rise or countenance to injurious imputations. Though justice is partly denied, and partly sold, the difference is certainly immense, betwixt selling it for the personal benefit of the king or of a judge, and selling it for the benefit of the public—betwixt selling it by auction, and selling it at a fixed price—betwixt denying it for the sake of forcing the sale of it, or denying it to a few obnoxious individuals, and denying it indiscriminately to the great majority of the people. In point of moral guilt, there is certainly no comparison: but in point of political effect, it may not be altogether easy in every part, of the parallel, to say which mode of abuse a most extensively pernicious.
[† ]Law paper might be forged: but the difficulty would be to issue it.
[* ]The duties on nearly every proceeding, at law or in equity were repealed by the 5 Geo. IV. c. 41. The duties which were left were those upon proceedings, which were generally used for and operated as conveyances. By the subsequent alterations in the laws relating to fines and recoveries, these latter duties have become extinct also.—Ed.
[* ]Protest against Law-taxes, printed 1793, now first published and subjoined to the present Essay, December 1795. [See the immediately preceding Tract.]
[* ]To save circumlocution, relations, whom under this, or any other definition of near relations, I should propose to exclude, I shall term relations without the pale: those whom I should propose not to exclude, relations within the pale.
[† ]Say, in the instance of females, 48;—in the instance of males, 60, if no child within 5 years past; or 55, if married to a wife above 48.
[‡ ]Many writers (Blackstone for one) have treated the right of bequest with very little ceremony: many writers, without having in view any such public benefit as is here in question, have been for abolishing it altogether [the author of the Code Frederic for instance; Cocceiji, chancellor to the late king of Prussia. See the preface to that work.] Without entering into a discussion which is not to the present purpose, it will be sufficient here to observe, that not only the regard due to old-established privileges, and long-existing usages, but the success of the very system here proposed, though established in so great a degree at the expense of the power in question, may depend upon the leaving that power in possession of a very considerable degree of force. If a man were allowed no power at all over what property he left behind him, he would, in many instances, either be indifferent about getting it, or spend it as fast as he got it, or transfer it to some happier clime, where the interests of the community were better understood, and the feelings of individuals treated with more respect; and, in fact, a great part of the value of all property would be thus destroyed.
[* ]If without provocation on the part of my children, I were to let in strangers, or mere collateral relations, for an equal share of my fortune, my children would feel themselves injured, other people would look upon them as injured, my behaviour to them would be universally regarded as cruel or unnatural. A man is considered, indeed, as having his own fortune pretty much in his power, as against one child in comparison with another, but very little so as against his children taken together, in comparison with collaterals or strangers.
[* ]The matter belonging to the ensuing heads is not all of it included in the present publication. No part of it was sent, the demand for it depending upon the approval or disapproval of the principle of the measure; nor has it ever been thought worth while to work up into form any more than is here subjoined.—Note added in December 1795.
[† ]Heads of objections, with answers, were sent, in form of a table, and being now printed verbatim, form the matter of one of the ensuing sections.—Note added December 1795.
[* ]I leave out of the supposition the case when there is a father left, a grandfather, or a relation of the half blood, and the estate escheats to the prejudice. These are but too real hardships; but they belong to the law in its present state, were ingrafted into it by accident, and would not continue in it in its proposed extended state if the choice depended upon me. Thus much must be acknowledged: the removal of them is a separate question, bearing no necessary relation to the present measure. [The law of England in this respect was altered by 3 and 4 W. IV. c. 106.—Ed.]
[† ]—πλεον ημισυ παντος.
[* ]Better to have nothing than to have a share, (says an objector.) How can that be? Is not the man himself the best judge? Ask him, then, which is best for him—share or no share? My answer is—the question does not meet the case. You suppose his attention previously drawn to the subject:—you have raised his expectation; you have given him his option between some and none:—that being the case, his answer, it is true, cannot but be as you suppose. Not to come in for anything, would now be a disappointment. It will even be a disappointment should the share he gets prove smaller than what he hoped to get, and the disappointment will be not less, but greater, if he gets no share at all. True; but all this depends upon the option: accordingly, in the case you suppose, there is an option given; whereas in the case I suppose, here is none. When an estate in England has been limited away from a man altogether, he never looks at it:—what should lead him? he has no more option in it than in the kingdom of Spain.
[† ]Try the experiment upon a hungry child: give him a small cake, telling him, after he has got it, or even before, that he is to give back part of it. Another time, give him a whole cake, equal to what was left to him of the other, and no more, and let him enjoy it undiminished:—will there be a doubt which cake afforded him the purest pleasure?
[* ]In my own estimation, the good that can be done by any encouragements of a positive nature given to marriage, shows itself, I must confess, in a very questionable point of view; but the reasons in support of this opinion not being to the present purpose, will be better spared than given. I say positive; for as to the negative kind of encouragement that, in the instance where any obstacles of a political nature can be shown to subsist, may be afforded by the removal of those obstacles, the utility of this species of encouragement stands upon a footing altogether different.
[* ]The freshest and most considerable tax upon legacies and shares in successions (that of 29 Geo. III. c. 51, anno 1789,) has freed itself so far from this objection; but the duties on probates and letters of administration remain exposed to it; as do the anterior taxes on legacies and shares in successions imposed by 20 Geo. III. c. 28 anno 1780. There reason in the instance of the duty on probates and letters of administration, seems to be that in that stage the value of the subject can only be guessed at, whereas in the other cases it has been liquidated.
[* ]The documents resorted to as data for calculation, were the instances of collateral succession in different degrees, compared with those of lineal succession, as indicated by the publications on the peerage. The data thus obtained were digested into Tables, including Scotch and Irish, as well as English and British, existing as well as extinct.—Note added Dec. 9, 1795.
[† ]Fresh taxes have, in many instances, been repealed upon fresh experience of their ineligibility or unpopularity; examples of the repeal of an old-established tax are rare indeed.
[* ]Fish to the Highlanders of Scotland.
[† ]To Mr.—. This is but an, index: the objections and answers are given at large in the body of the paper.
[* ]31 Edward III. parl. 1, ch. ii. 9, co. 40, in Burn’s Eccl. Law, iv. 197.
[† ]Hume has fallen into a mistake on this subject, in supposing that in the reign of Henry II. moveables were the prey, not of the spiritual power but the temporal. “It appears,” says he, vol. i. anno 1100, “from Glanville, the famous justiciary of Henry II., that in his time, where any man died intestate, an accident which must have been frequent when the art of writing was so little known, the king, or the lord of the fief, pretended to seize all the moveables, and to exclude every heir, even the children of the deceased,—a sure mark of a tyrannical and arbitrary government.”
[* ]II. Comment. ch. i.
[† ]Glanville, I. vii. c. 17.
[‡ ][George II.] Atkyn’s Reports.
[* ]Quere, what is “nature?”
[† ]Quere, the difference between “nature” here and “custom?”
[‡ ]Quere, what “establishments” are there in the world besides political ones? Quere, what signifies whether a “political establishment” be a “natural” one or no, so long as it is a “wise and effectual one?”
[§ ]If an “impermanent” right be a “natural” one, quere, at what o’clock does it cease to be so? If it be natural a right of property should commence, how comes it to be unnatural it should continue?
[∥ ]Quere, what signifies whether it was a “natural right” or no. Quere, what sort of a thing is a “natural right,” and where does the maker live, particularly in Atheist’s town, where they are most rife?
[* ]Not long ago a great banking-house opened upon the plan of giving 3 per cent. for money on condition of its not being drawn out till after a short notice. This was too much, and so it proved: but an indication seems to be afforded that, even without the benefit of the monopoly, the profits of trade are capable of bearing a deduction in this instance.