Front Page Titles (by Subject) OBSERVATIONS ON PARTS OF THE DECLARATION OF RIGHTS, AS PROPOSED BY CITIZEN SIEYES. - The Works of Jeremy Bentham, vol. 2
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
OBSERVATIONS ON PARTS OF THE DECLARATION OF RIGHTS, AS PROPOSED BY CITIZEN SIEYES. - 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.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
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.)