Front Page Titles (by Subject) DECLARATION OF THE RIGHTS AND DUTIES OF THE MAN AND THE CITIZEN, ANNO 1795. - The Works of Jeremy Bentham, vol. 2
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DECLARATION OF THE RIGHTS AND DUTIES OF THE MAN AND THE CITIZEN, ANNO 1795. - 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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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.
[* ]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.