Front Page Titles (by Subject) ESSAY II.: OF SUBJECTS, OR OF THE PERSONAL EXTENT OF THE DOMINION OF THE LAWS. - The Works of Jeremy Bentham, vol. 2
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ESSAY II.: OF SUBJECTS, OR OF THE PERSONAL EXTENT OF THE DOMINION OF THE LAWS. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 2 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 2.
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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.
[* ]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.