The Online Library of Liberty

A project of Liberty Fund, Inc.

• Errata—vol. III.
• Defence of Usury; Showing the Impolicy of the Present Legal Restraints On the Terms of Pecuniary Bargains; In Letters to a Friend.
• Letter I.: Introduction.
• Letter II.: Reasons For Restraint—prevention of Usury.
• Letter III.: Reasons For Restraint—prevention of Prodigality.
• Letter IV.: Reasons For Restraint—protection of Indigence.
• Letter V.: Reasons For Restraint—protection of Simplicity.
• Letter VI.: Mischiefs of the Anti-usurious Laws.
• Letter VII.: Efficacy of Anti-usurious Laws.
• Letter VIII.: Virtual Usury Allowed.
• Letter IX.: Blackstone Considered.
• Letter X.: Grounds of the Prejudices Against Usury.
• Letter XI.: Compound Interest.
• Letter XII.: Maintenance and Champerty.
• Letter XIII.: To Dr. Smith, On Projects In Arts, &c.
• A Manual of Political Economy: Now First Edited From the Mss. of Jeremy Bentham.
• Chapter I.: Introduction. *
• Chapter II.: Analytical Survey of the Field of Political Economy.
• Chapter III.: Of Wealth.
• Chapter IV.: Of Population.
• Chapter V.: Of Finance.
• Chapter VI.: Operation of a Sinking Fund On the Production of Wealth.
• Chapter VII.: Noscenda.
• Observations On the Restrictive and Prohibitory Commercial System; Especially With a Reference to the Decree of the Spanish Cortes of July 1820.
• Preface.: Observations, &c.
• Section I.: Nature of the Prohibitory System.
• Section II.: Mischiefs of the Prohibitory System.
• Section III.: Causes of the Prohibitory System.
• A Plan For Saving All Trouble and Expense In the Transfer of Stock, and For Enabling the Proprietors to Receive Their Dividends Without Powers of Attorney, Or Attendance At the Bank of England, By the Conversion of Stock Into Note Annuities.
• Introduction.
• Chapter I.: Plan For the Creation, Emission, Payment, and Eventual Extension, of a Proposed New Species of Government Paper, Under the Name of Annuity Notes.
• Chapter II.: Form of an Annuity Note. (see Table II.)
• Chapter III.: Comparison of the Proposed, With the Existing Government Securities, &c.
• Chapter IV.: Grounds of Expectation, In Regard to the Proposed Measure.
• Chapter V.: Financial Advantages.
• Chapter VI.: Advantage By Addition to National Capital.
• Chapter VII.: Advantage By Addition to Commercial Security.
• Chapter VIII.: Particular Interests Concerned.
• Chapter IX.: Rise of Prices—how to Obviate.
• Chapter X.: Reduction of Interest—proposed Mode Compared With Mr. Pelham’s.
• Chapter XI.: Moral Advantages.
• Chapter XII.: Constitutional Advantages.
• Chapter XIII.: Recapitulation and Conclusion.
• Appendix A.: Government Ought to Have the Monopoly of Paper Money, As Well As of Metallic Money.
• Appendix B.: Paper Money—causes Why Not Circulated By Government Without Interest, As Well As By Individuals.
• General View of a Complete Code of Laws.
• Chapter I.: General Division.
• Chapter II.: Relations Between the Laws Concerning Offences, Rights, Obligations, and Services.
• Chapter III.: Relation Between the Penal and Civil Code.
• Chapter IV.: Of Method.
• Chapter V.: Plan of the Penal Code.
• Chapter VI.: Of the Division of Offences.
• Chapter VIII. Titles of the Penal Code.
• Chapter IX.: First General Title of the Civil Code, * of Things.
• Chapter X.: Second General Title of the Civil Code. of Places.
• Chapter XI.: Third General Title of the Civil Code. of Times.
• Chapter XII.: Fourth General Title of the Civil Code. of Services.
• Chapter XIII.: Fifth General Title of the Civil Code. of Obligations.
• Chapter XIV.: Sixth General Title of the Civil Code. of Rights.
• Chapter XV.: Seventh General Title of the Civil Code. of Collative and Ablative Events.
• Chapter XVI.: Eighth General Title of the Civil Code. of Contracts.
• Chapter XVII.: Ninth General Title of the Civil Code. of the Domestic and Civil States.
• Chapter XVIII.: Tenth General Title of the Civil Code. of Persons Capable of Acquiring and of Contracting.
• Chapter XIX.: Of the Particular Titles of the Civil Code.
• Chapter XX.: Of Elementary Political Powers.
• Chapter XXI.: Of Elementary Political Powers— Subject Continued.
• Chapter XXII.: Plan of the Political Code.
• Chapter XXIII.: Plan of the International Code.
• Chapter XXIV.: Plan of the Maritime Code.
• Chapter XXV.: Plan of the Military Code.
• Chapter XXVI.: Plan of the Ecclesiastical Code.
• Chapter XXVII.: Plan of Remuneratory Laws.
• Chapter XXVIII.: Of Political Economy.
• Chapter XXIX.: Plan of the Financial Code.
• Chapter XXX.: Plan of Procedure Code.
• Chapter XXXI.: Of the Integrality of the Code of Laws.
• Chapter XXXII.: Of Purity In the Composition of a Code of Laws.
• Chapter XXXIII.: Of the Style of the Laws.
• Chapter XXXIV.: Of the Interpretation, Conservation, and Improvement of a Code.
• Pannomial Fragments.
• Chapter I.: General Observations.
• Chapter II.: Consideranda.
• Chapter III.: Expositions.
• Chapter IV.: Axioms.
• Nomography; Or the Art of Inditing Laws: Now First Published From the Mss. of Jeremy Bentham.
• Chapter I.: The Subject Stated.
• Chapter II.: Relations.
• Chapter III.: Proper End In View.
• Chapter IV.: Imperfections Primary.
• Chapter V.: Explanations Relative to the Imperfections of the Second Order.
• Chapter VI.: Of Remedies. *
• Chapter VII.: Of Language.
• Chapter VIII.: Of the Perfections of Which the Legislative Style Is Susceptible.
• Chapter IX.: Of Forms of Enactment.
• Appendix. Logical Arrangements, Or Instruments of Invention and Discovery
• Equity Dispatch Court Proposal; Containing a Plan For the Speedy and Unexpensive Termination of the Suits Now Depending In Equity Courts. With the Form of a Petition, and Some Account of a Proposed Bill For That Purpose
• Section I.: Purpose Explained. Jeremy Bentham to the Honest and Afflicted Among Equity Suitors.
• Section II.: Equity Suitors’ Petition For Dispatch Court. to the King’s Most Excellent Majesty, —
• Section III.: Dispatch Court Bill—some Account of It.
• Section IV.: Information Requisite From Petitioning Suitors.
• Equity Dispatch Court Bill: Being a Bill For the Institution of an Experimental Judicatory Under the Name of the Court of Dispatch, For Exemplifying In Practice the Manner In Which the Proposed Summary May Be Substituted to the So Called Regular Sy
• Editor’s Note.
• Preface.
• Preamble.
• Part I.—: Judiciary.
• Section I.: Judge Located, How.
• Section II.: Remuneration.
• Section III.: Registrar, &c.
• Section IV.: Eleemosynary Advocate.
• Section V.: Judges’, &c. Deputes.
• Section VI.: Judge’s Powers—exemptions—checks.
• Section VII.: Prehensors and Messengers.
• Section VIII.: Consignees; * Or Say, In-trust-holders.
• Section IX.: Grounds of Decision For the Dispatch Court Judge.
• Section X. ‡: Suits’ Comparative Suitableness; and Order of Cognizance.
• Section XI.: Auxiliary Judges and Accountants.
• Section XII.: Sittings, Times Of.
• Part II.—: Procedure.
• Section XIII.: Definitions. *
• Section XIV.: Examination of Solicitors.
• Section XV.: Initiatory Examination of Parties, &c.
• Section XVI.: Appropriate Intercourse, Constant and Universal, Secured.
• Section XVII.: Mutual Security For Forthcomingness of Persons and Things. ‡
• Section XVIII.: Evidence-procuring Money, How Provided.
• Section XIX.: Subsequential Evidence, How Elicited.
• Section XX.: Execution, How Performed.
• Section XXI.: Equity Court Costs, How Disposed Of.
• Section XXII.: Dispatch Court Costs, How Disposed Of.
• Section XXIII.: Eventual Retrotransference of a Suit to the Equity Court.
• Section XXIV.: Expense of the Court, How Provided For.
• Supplemental Sections:—
• Section I. Or XXV.: Bankruptcy and Insolvency.
• Section II. Or XXVI.: Henceforward Dispatch Court.
• Schedules to the Bill.
• Plan of Parliamentary Reform, In the Form of a Catechism, With Reasons For Each Article: With an Introduction, Showing the Necessity of Radical, and the Inadequacy of Moderate, Reform.
• Introduction.
• Section I.: History of the Ensuing Tract—alarming State of the Country and the Constitution.
• Section II.: Most Prominent Present Grievance, Gareisoning France.
• Section III.: Causes of the Above and All Other Mischiefs:—particular Interests Monarchical and Aristocratical, Adverse to the Universal—their Ascendency.
• Section IV.: Sole Remedy In Principle—democratic Ascendency.
• Section V.: Remedy In Detail: Radical Parliamentary Reform: Elementary Arrangements In This Edition of It—their Necessity.
• Section VI.: Differences Between This and the Original Editions of Radical Reform.
• Section VII.: Virtual Universality of Suffrage Further Considered.
• Section VIII.: Virtual Universality of Suffrage—its Undangerousness.
• Section IX.: Freedom of Suffrage Further Explained—seductive Influence—its Forms, Instruments, &c.
• Section X.: Bribery and Terrorism Compared.
• Section XI.: Purchase of Seats—in What Cases Mischievous—in What Beneficial.
• Section XII.: Secresy of Suffrage—its Importance Further Developed.
• Section XIII.: Exclusion of Placemen, &c. From the Right of Voting—mischievousness and Profligacy of the Opposite Arrangement.
• Section XIV.: Universal Constancy of Attendance—its Importance.
• Section XV.: Representatives—impermanence of Their Situation—its Importance:—objections—their Groundlessness.
• Section XVI.: Moderate Reform—its Arrangements—their Inadequacy.
• Section XVII.: Trienniality Inadequate;—annuality Necessary.
• Section XVIII.: Interests Adverse to Adequate Reform—support Given By Them to Moderate, to the Exclusion of Radical: Tories—whigs—people’s Men.
• Catechism of Parliamentary Reform; Or, Outline of a Plan of Parliamentary Reform; In the Form of Question and Answer; With Reasons to Each Article.
• Section I.: Ends to Be Aimed At On the Occasion of Parliamentary Reform.
• Section II.: Means, Conducive Towards These Ends.
• Section III.: Means—their Uses, With Reference to Their Respective Ends.
• Section IV.: Means Conducive to Aptitude In Members: I. Placemen Not to Vote, Nor to Be Seated By Election.
• Section V.: Means, &c. Continued.—ii. Placemen Seated By the King, With Speech and Motion, Without Vote.
• Section VI.: Means, &c. Continued.—iii. Elections Frequent—annual.
• Section VII.: Means, &c. Continued.—iv. Speeches Authentically and Promptly Published.
• Section VIII.: Means, &c. Continued.—v. Attendance, Punctual and General, Secured.
• Section IX.: Inconveniences Incident to Elections, and Election Judicature.
• Section X.: Election Inconveniences—means For Their Removal.
• Section XI.: Collateral Advantages, Referable to the Situations of Electors, Placemen, Lords, &c.
• A Sketch of the Various Proposals For a Constitutional Reform In the Representation of the People, Introduced Into the Parliament of Great Britain, From 1770 to 1812.
• Radical Reform Bill, With Extracts From the Reasons.
• Preliminary Explanations.
• Title of the Proposed Act.
• Preamble.
• Section 1.—: Seats and Districts.
• Section 2.—: Electors, Who.
• Section 3.—: Eligible, Who.
• Section 4.—: Election Offices.
• Section 5.: Election Apparatus.
• Section 6.—: Promulgation of Recommendations In Favour of Proposed Members.
• Section 7.—: Voters’ Titles Pre-established.
• Section 8.—: Election, How.
• Section 9.: Election Districts and Polling Districts, How Marked Out.
• Section 10.—: Vote-making Habitations, How Defined.
• Section 11.—: Members’ Continuance.
• Section 12.—: Vacancies Supplied.
• Section 13.—: Security For the House Against Disturbance By Members. †
• Section 14.—: Indisposition of Speakers Obviated.
• Appendix, Including General Explanations.
• Radicalism Not Dangerous. Extracted From the Mss. of Jeremy Bentham. *
• Part I.—: Introduction.
• Section I.: Radical Reform Bill Recapitulated.
• Section II.: Persuasion of the Dangerousness of Radicalism—cause of It, and of the Vituperative Expression Given to It.
• Section III.: Terms of the Accusation,—speeches From the Throne, 16 Th July and 21 St November 1819.
• Section IV.: The Accusation In General Terms—counter-averment.
• Section V.: Plan of This Defence.
• Part II.—: Deference From the General Nature of the Case.
• Section I.: Conditions Necessary to a Man’s Embarking In Such a Design.
• Section VII.: Concurrence In Any Other Extensive Plan of Spoliation Impossible.
• Section VIII.: Concurrence of Any Constituted Authorities Impossible.
• Section IX.: Accomplishment Impossible—design Impossible.
• Section X.: The Talked-of Spunge No Proof of the Design.
• Part III.—: Defence From Experience In the Case of the United States.
• Part IV.: Defence From Particular Experience In the Case of Ireland: Years 1777 Or 1778, to 1783.
• Section I.: Analogy Between This and the Previous Case.
• Section II.: Democratic Ascendency, How Produced.
• Section III.: Fruit of Democratic Ascendency a Golden Age.
• Section IV.: Coincidence of Its Characters With Those of Radicalism.
• Section VI.: Extinction of Democratic Ascendency and Reform—restoration of Monarchico-aristocratical Ascendency, and Its Consequences.
• Conclusion.

CHAPTER IV.

AXIOMS.

§ 1.

Axioms of Mental Pathology—a necessary ground for all legislative arrangements.

By an axiom of mental pathology, considered as a ground for a legislative arrangement, understand a proposition expressive of the consequences in respect of pleasure or pain, or both, found by experience to result from certain sorts of occurrences, and in particular from such in which human agency bears a part: in other words, expressive of the connexion between such occurrences as are continually taking place, or liable to take place, and the pleasures and pains which are respectively the results of them.

Practical uses of these observations, two:—1. With regard to pleasures, the learning how to leave them undisturbed, and protected against disturbance—(for as to the giving increase to them by the power of the legislator to anything beyond a very inconsiderable amount, it is neither needful nor possible;) 2. With regard to pains, the learning how on each occasion to minimize the amount of them in respect of magnitude and number—number of the individuals suffering under them—magnitude of the suffering in the case of each individual.

Arithmetic and medicine—these are the branches of art and science to which, in so far as the maximum of happiness is the object of his endeavours, the legislator must look for his means of operation:—the pains or losses of pleasure produced by a maleficent act correspond to the symptoms produced by a disease.

Experience, observation, and experiment—these are the foundations of all well-grounded medical practice: experience, observation, and experiment—such are the foundations of all well-grounded legislative practice.

In the case of both functionaries, the subject-matter of operation and the plan of operation is accordingly the same—the points of difference these:—In the case of the medical curator, the only individual who is the subject-matter of the operations performed by him, is the individual whose sufferings are in question, to whom relief is to be administered. In the case of the legislator, there are no limits to the description of the persons to whom it may happen to be the subject-matter of the operations performed by him.

By the medical curator, no power is possessed other than that which is given either by the patient himself, or in case of his inability, by those to whose management it happens to him to be subject:—by the legislatorial curator, power is possessed applicable to all persons, without exception, within his field of service; each person being considered in his opposite capacities—namely, that of a person by whom pleasure or pain, or both, may be experienced, and that of a person at whose hands pleasure or pain, or both, may be experienced.

Axioms of corporal pathology may be styled those most extensively applicable positions, or say propositions, by which statement is made of the several sorts of occurrences by which pleasure or pain are or have place in the human body:—as also, the results observed to follow from the performance of such operations as have been performed, and the application made of such subject-matters as have been applied for the purpose of giving increase to the aggregate of pleasure, or causing termination, alleviation, or prevention, to have place in regard to pain.

Axioms of mental pathology may be styled those most commonly applicable propositions by which statement is made of the several occurrences by which pleasure or pain is made to have place in the human mind:—as also, the results observed to follow from the performance of such operations as have been performed, and the application of such subject-matters as have been applied for the purpose of effecting the augmentation of the aggregate of the pleasures, or the diminution of the aggregate of the pains, by the termination, alleviation, or prevention of them respectively, when individually considered.

Security—subsistence—abundance—equality—i. e. minimization of inequality:—by these appellatives, denomination has been given to the particular ends which stand next in order to the universal, and the greatest happiness of the greatest number. This being admitted, these are the objects which will be in view in the formation of the several axioms of pathology which present themselves as suitable to the purpose of serving as guides to the practice of the legislatorial curator.

Unfortunately, on this occasion, the imperfection of language has produced an embarrassment, which it does not seem to be in the power of language altogether to remove: all that can be done, is to lessen and alleviate it. Subsistence—abundance—equality,—these three immediately subordinate ends are conversant about the same matter; to wit, the matter of wealth. But security, besides a matter of its own, is conversant with that same matter, with which, as above, they are conversant; to wit, the matter of wealth: security for the matter of wealth—or say, to each individual, security for that portion of the matter of wealth which at the time in question belongs to him, and is called his. Security is accordingly security against all such maleficent acts by which any portion of the matter of wealth which ought to be at the disposal of the individual in question, is prevented from being at his disposal at the time in question. Now, the not having at his disposal at the time in question a certain portion of the matter of wealth, is indeed one efficient cause of pain to the individual in question, be he who he may, but it is but one out of several. In addition to the matter of wealth, sources of pleasure, and of exemption from pain, are certain others which have been found reducible under the following denomitions; to wit, power, reputation, and condition in life:—condition in life, to wit, in so far as, reference had to the individual whose it is, the effect is considered as beneficial—this complex subject-matter including in it the three subject-matters above mentioned—that is to say, the matter of wealth, or in two words, power and reputation.

Correspondent to these several subject-matters of security are so many classes of offences—of maleficent acts, by the performance of which such security is disturbed. Offences affecting property—offences affecting power—offences affecting reputation—offences affecting condition in life.

But all these subject-matters are, with reference to the individual in question, distinct from him, and exterior to him;—and in a more immediate way—and otherwise than through the medium of any of these outworks, he stands exposed to be made to suffer pain, as well of mind as of body, by the agency of every other individual, in whose instance a motive adequate to the purpose of producing an act by which it will be inflicted, has place. Thus, then, in addition to offences affecting property—offences affecting power—offences affecting reputation—offences affecting condition in life,—we have offences affecting person, considered with reference to its two distinguishable parts, body and mind.

So many of these classes of maleficent acts, so many branches of security: in which list, as being the most obviously and highly important, and most simple in the conception presented by it, security against maleficent acts affecting person—more shortly, security for person, presents itself as claiming to occupy the first place; after which, security for property, and so forth, as above.

§ 2.

Axioms applicable to Security for Person.

Axioms forming the grounds for such legislative arrangements as have for their object and their justification, the affording security for person against such maleficent acts, to which it stands exposed.

1. The pleasure derivable by any person from the contemplation of pain suffered by another, is in no instance so great as the pain so suffered.

2. Not even when the pain so suffered has been the result of an act done by the person in question, for no other purpose than that of producing it.

Hence, one reason for endeavouring to give security against pain of body or mind, resulting from human agency, whether from design or inattention.

Now, suppose the pain to be the result of purely natural agency,—no human agency having any part in the production of it—no human being deriving any satisfaction from the contemplation of it,—the result is still the same.

Hence one reason for endeavouring to give security against pain of body or mind resulting from casualty, or as the word is, when the evil is considered as having place upon a large scale,—calamity.

Axiom indicative of the reasons which form the grounds of the enactments prohibitive of maleficent acts, productive of evil, affecting persons—that is to say, either in body or mind—in any mode not comprised in one or other of the modes of maleficence from which the acts constituted offences in and by the penal code receive their denomination, viz. Offences produced by the irascible appetite:—

When by one person, without gratification sought other than that derived from the contemplation of suffering in this or that shape, as about to be produced on the part of that other gratification in a certain shape, is accordingly produced in the breast of such evil doer,—call the gratification the pleasure of antipathy satisfied—or of ill-will satisfied.

If this antipathy has had its rise in the conception that by the party in question (say the victim), evil in any shape has been done to the evil doer,—the pleasure of antipathy gratified takes the name of the pleasure of vengeance—or say revenge.

Axiom. In no case is there any reason for believing that the pleasure of antipathy gratified is so great as the pain suffered by him at whose expense, as above, the pleasure is reaped.

Offences to which the axiom applies are—1. Offences affecting body; 2. Offences affecting the mind other than those belonging to the other classes; 3. Offences affecting reputation—the reputation of the sufferer—other than those by which the reputation of the evil doer is increased; 4. Offences affecting the condition in life of the sufferer, other than those by which the reputation of the evil doer is increased or expected to be increased.

For justification of the legislative arrangements necessary to afford security against maleficent acts affecting the person, what it is necessary to show is, that by them pain will not be produced in such quantity as will cause it to outweigh the pleasure that would have been produced by the maleficent acts so prevented.

For this purpose, in order to complete the demonstration and render it objection-proof, in certain cases, it will be necessary to take into account not only the evil of the first order, but the evil of the second order likewise.

First, then, considering the matter on the footing of the effects of the first order on both sides,—Axioms bearing reference to the effects of the first order on both sides, are the following:—

Axioms serving as grounds and reasons for the provision made by the legislator for general security;—to wit, against the evils respectively produced by the several classes and genera of offences.

Case 1. An offence affecting person, or say corporal vexation, in any one of its several shapes—offender’s motive, ill-will or spite—the enjoyment of the offender will not be so great as the evil of the first order, consisting in the suffering experienced by the party vexed.

Case 2. So if the offence be an offence productive of mental vexation—and the motive the same.

Case 3. So if the offence be an offence affecting reputation.

Case 4. So, exceptions excepted, in the case of every other class or genus of offences, the motive being ill-will or spite, as above.

Case 5. Exceptions are among offences affecting person and reputation jointly, the offences having for their motive sexual desire; to wit—1. Sexual seduction, allurative, or say enticitive; 2. Sexual seduction compulsory; 3. Rape; 4. Vexatious lascivious contrectation.

In any of these cases, what may happen is—that the enjoyment of the offender may be equal or more than equal to the suffering of the party wronged; in either of which cases the evil of the first order has no place. But to all other persons, the suffering of the one part will present itself as being to an indefinite degree greater than the enjoyment of the offender and proportioned to the apparent excess will be the actual alarm on the part and on behalf of persons exposed to the like wrong from the same cause: and thence, so far as regards alarm, will be the evil of the second order.

Addendum to security axioms:—

Be the modification of the matter of prosperity what it may, by losing it without an equivalent, a man suffers according to, and in proportion to, the value of it in his estimation—the value by him put upon it.

Value may be distinguished into—1. General, or say value in the way of exchange; and 2. Special, or say idiosyncratical—value in the way of use in his own individual instance.

Note, that the value of a thing in the way of exchange arises out of, and depends altogether upon, and is proportioned to, its value in the way of use:—for no man would give anything that had a value in the way of use in exchange for anything that had no such value.

But value in the way of use may be distinguished into general, which has place so far as, and no further than, the thing is of use to persons in general—and special or idiosyncratical, which has place in so far as, in the case of this or that person in particular, the thing has a value in the way of use over and above the value which it has in the case of persons in general: of which use, that of the pretium affectionis, the value of affection, is an example.

Definition: When from any cause—human agency or any other—a mass of the matter of wealth, or of the matter of prosperity in any other shape, is made to go out of an individual’s possession or expectancy without his consent, the pain produced in his breast by contemplation of its non-existence, or say by the loss of it, call the pain of disappointment: he being disappointed at the thought of the good which, it having been in his possession or expectancy, he has thus lost.

Among the objects of law in every community, is the affording security against this pain in this shape.

Axiom: The pleasure of antipathy or revenge produced in the breast of the evil-doer by the contemplation of a pain of disappointment produced in the breast of the sufferer, is not in any case so great in magnitude as that same pain.

To this axiom corresponds, as being thereon grounded, a fundamental principle entitled the disappointment-preventing principle.

Operation necessary for the establishment and continuance of security,—Fixation of the text of the laws.

For leading expectation, the law need only be exhibited, provided that it be clear, and not too vast for comprehension. But that it may be exhibited, it is necessary that it exist. The greatest and most extensive cause of regret respecting English law, is,—that as respects a large portion, it has no existence. Instead of laws, it cannot even be said that we possess shadows of law:—shadows imply substances by which they are formed;—all that we possess is a phantom, conjured up by each one at his pleasure, to fill the place of the law. It is of these phantoms that common law, unwritten, judge-made law, is composed.

A discussion upon a point of unwritten or common law has been defined a competition of opposite analogies. In giving this definition, the most severe and well-deserved censure was passed both upon this species of law, and upon the carelessness of the legislators who have tolerated its pernicious existence—who have allowed the security of their fellow-citizens to remain without foundation, tossed about by the interminable and always shifting competition of opposite analogies,—who have left it upon a quicksand, when they might have placed it upon a rock.

§ 3.

Axioms pathological, applicable to Subsistence.

Axiom 1. Though to each individual his own subsistence be, by the nature of man, rendered the chief object of his care, and during his infancy an object of care to the author of his existence, yet a considerable portion of the aggregate number of the members of the community there will always be, in whose instance a subsistence cannot have place (without the legislator’s care) without provision made by the legislator to that effect.

2. For the subsistence of all, and accordingly of these, provision will to a certain degree have been made by the provision for security in all its shapes, and for security of property in particular: as also for abundance; for abundance, because of the abundance possessed by some is composed a stock, a fund, out of which matter is capable of being taken applicable to the purpose of affording, whether immediate or through exchange, subsistence to others. But for the subordinate end to the purpose here in question, the utmost of what can be done for these two other subordinate ends, taken together, will not of itself be sufficient.

Of the nonpossession of the matter of subsistence in such quantity as is necessary to the support of life, death is the consequence: and such natural death is preceded by a course of suffering much greater than what is attendant on the most afflictive violent deaths employed for the purpose of punishment.

Rather than continue to labour under this affliction, individuals who are experiencing it will naturally and necessarily, in proportion as they find opportunity, do what depends upon them towards obtaining, at the charge of others, the means of rescuing themselves from it: and in proportion as endeavours to this purpose are employed, or believed to be intended to be employed, security for property is certainly diminished—security for person probably diminished on the part of all others.

By the coercive authority of the legislator provision cannot be made for the indigent, otherwise than by defalcation from the mass of the matter of abundance possessed by the relatively opulent, nor yet, without a correspondent defalcation more or less considerable, from security for property on their part.

In every habitable part of the earth, people, so soon as they behold themselves and their eventual offspring secured against death for want of the matter of subsistence, which security cannot be afforded otherwise than by correspondent defalcation from the matter of abundance in the hands of the relatively opulent, will continue to effect addition to the number of its inhabitants. But this augmentation thus produced will proceed with much greater rapidity than any addition that can be made to the quantity of the matter of subsistence possessed, as above, by the indigent, by defalcation made at the expense of security for property, as well as from the matter of abundance, by correspondent defalcation from the matter of abundance in the hands of the relatively opulent.

The consequence is, that sooner or later, on every habitable part of the earth’s surface, the community will be composed of three classes of inhabitants:—1. Those by whom, with the addition of more or less of the matter of abundance, the matter of subsistence is possessed in a quantity sufficient for the preservation of life and health;—2. Those who, being in a state in which they are perishing for want of the matter of subsistence, are on their way to speedy death;—3. Those who to save themselves from impending death are occupied in waging war upon the rest, providing the means of subsistence for themselves at the expense of the security of all, and the matter of subsistence and abundance in the possession of all.

So long as by arrangements taken for the purpose by government, the thus redundant part of the population can be cleared off by being conveyed from the habitable part of the globe in question to some other part, these two classes of quickly perishing individuals may be prevented from receiving formation, or if formed, from receiving increase. But in no one part of the habitable globe can this be done by government without expense, nor the matter of expense be obtained without defalcation made from security, and suffering from loss, by forced contribution as above; and sooner or later, in proportion as property and security for property establishes itself, the whole surface of the habitable globe cannot but be fully peopled, in such sort, that from no one spot to any other could human creatures be transplanted in a living and about to live state.

Human benevolence can, therefore, hardly be better employed than in a quiet solution of these difficulties, and in the reconciliation of a provision for the otherwise perishing indigent, with this continual tendency to an increase in the demand for such provision.

§ 4.

Axioms applying to Abundance.

1. Included in the mass of the matter of abundance, is the mass of the matter of subsistence. The matter of wealth is at once the matter of subsistence and the matter of abundance: the sole difference is the quantity;—it is less in the case of subsistence—greater in the case of abundance.

2. If of two persons, one has the minimum of subsistence without addition,—and the other, that same minimum with an addition,—the former has the matter of subsistence, the latter the matter of abundance:—understand, in comparison with him who has nothing beyond the minimum of the matter of subsistence,—the term abundance being a comparative, a relative term.

3. The matter of subsistence being, in the instance of each individual, necessary to existence, and existence necessary to happiness,—suppose a quantity of the matter of wealth sufficient for the subsistence of 10,000 persons, at the disposition of the legislator;—more happiness will be producible, by giving to each one of the 10,000 a particle of the matter of subsistence, than by giving to 5000 of them a portion of the matter of abundance composed of two particles of the matter of subsistence, and then giving none to the remaining 5000: since, on that supposition, the 5000 thus left destitute would soon die through a lingering death.

4. But suppose that, after giving existence to the 10,000, and to each of them a particle of the matter of subsistence, the legislator have at his disposal a quantity of the matter of wealth sufficient for the subsistence of other 10,000 persons, and that he have the option—of either giving existence to an additional number of persons to that same amount, with a minimum of the matter of subsistence to each,—or instead, without making any addition to the first 10,000, of giving an addition to the quantity of wealth possessed by them,—a greater addition to the aggregate quantity of happiness would be made by dividing among the first 10,000 the whole additional quantity of wealth, than by making any addition to the number of persons brought into existence. For, supposing the whole 10,000 having each of them the minimum of the matter of subsistence on any given day,—the next day, in consequence of some accident, they might cease to have it, and in consequence cease to have existence: whereas, if of this same 10,000, some had, in addition to his minimum of the matter of subsistence, particles one or more of the matter of abundance, here would be a correspondent mass of the matter of wealth, capable of being by the legislator so disposed of as to be made to constitute the matter of subsistence to those who, otherwise being without subsistence, would soon be without existence.

5. Not that, as between the matter of subsistence, and the matter of abundance, the identity is other than virtual—identity with reference to the purpose here in question, to wit, the effect on happiness;—and this virtuality depends upon the facility of obtaining one of the sorts of matter necessary to subsistence, in exchange for matter neither necessary, nor so much as contributing to subsistence—potatoes, for example, in exchange for coin; but so far as is necessary to the guidance of the legislator’s practice, this virtual identity always has had, and is likely always to have place.

6. Thus it is that the matter of abundance, as contradistinguished from the matter of subsistence, is contributory to happiness, in three distinguishable ways or capacities:—1. As contributing in a direct way to enjoyment, in a degree over and above what could be contributed by the mere matter of subsistence; 2. As contributing in an indirect way to security, to wit, by its capacity of serving, in the way of exchange, for the obtainment of the efficient instruments of security in any of these shapes; 3. As eventually contributing, in the same indirect way, to subsistence.

§ 5.

Axioms applying to Equality,*in respect of wealth.

I. Case or state of things the first.—The quantities of wealth in question, considered as being in a quiescent state, actually in the hands of the two parties in question: neither entering into, nor going out of the hands of either.

1. Cæteris paribus,—to every particle of the matter of wealth corresponds a particle of the matter of happiness. Accordingly, thence,

2. So far as depends upon wealth,—of two persons having unequal fortunes, he who has most wealth must by a legislator be regarded as having most happiness.

3. But the quantity of happiness will not go on increasing in anything near the same proportion as the quantity of wealth:—ten thousand times the quantity of wealth will not bring with it ten thousand times the quantity of happiness. It will even be matter of doubt, whether ten thousand times the wealth will in general bring with it twice the happiness.* Thus it is, that,

4. The effect of wealth in the production of happiness goes on diminishing, as the quantity by which the wealth of one man exceeds that of another goes on increasing: in other words, the quantity of happiness produced by a particle of wealth (each particle being of the same magnitude) will be less and less at every particle; the second will produce less than the first, the third than the second, and so on.

5. Minimum of wealth, say £10 per year;—greatest excess of happiness produced by excess in the quantity of wealth, as 2 to 1:—magnitude of a particle of wealth, £1 a year. On these data might be grounded a scale or table, exhibiting the quantities of happiness produced, by as many additions made to the quantity of wealth at the bottom of the scale, as there are pounds between £10 and £10,000.

II. Case, or state of things the second,—the particles of wealth about to enter into the hands of the parties in question.

1. Fortunes unequal:—by a particle of wealth, if added to the wealth of him who has least, more happiness will be produced, than if added to the wealth of him who has most.

2. Particles of wealth at the disposition of the legislator, say 10,000;—happiness of the most wealthy to that of the least wealthy, say (as per No. 5,) as 2 to 1:—by giving to each one of 10,000 a particle of wealth, the legislator will produce 5000 times the happiness he would produce by giving the 10,000 particles to one person.

3. On these data might be grounded a scale, exhibiting the quantities of happiness produced, by so many additions made as above to the minimum of wealth, to the respective happiness of any number of persons, whose respective quantities of wealth exceed one another, by the amount of a particle in each instance.

III. Case, or state of things the third,—the particles of wealth about to go out of the hands of the parties.

1. By the subtraction of a particle of the matter of wealth, a less subtraction from happiness will be produced, if made from the wealth of him who has the matter of abundance, than if from the wealth of him who has the matter of subsistence only.

2. So, if from the wealth of him who has a larger portion of the matter of abundance, than if from the wealth of him who has not so large a portion of the matter of abundance.

3. Fortunes equal, and the aggregate sum subtracted being given, the greater the number of the persons from whose wealth the subtraction is made, the less will be the subtraction thereby made from the aggregate of happiness.

4. Fortunes unequal, still less will be the subtraction of happiness, if it be in the ratio of their fortunes that the subtraction is made, the greatest quantity being subtracted from those whose fortunes are greatest.

5. A quantity of the matter of wealth may be assigned, so small, that if subtracted from the fortune of a person possessed of a certain quantity of the matter of abundance, no sensible subtraction of happiness would be the result.

6. The larger the fortune of the individual in question, the greater the probability that, by the subtraction of a given quantity of the matter of wealth, no subtraction at all will be made from the quantity of his happiness.

7. So likewise, if the ratio of the sum to be subtracted, to the aggregate mass from which it is to be subtracted, be so great, that by the subtraction of it, subtraction of a quantity, more or less considerable, cannot but be made from the aggregate of happiness,—still the larger, in the case of each individual, the aggregate of wealth is from which the subtraction is made, the less will be the quantity of happiness so subtracted, as above.

IV. Case, or state of things the fourth,—the particles of wealth about to go out of the hands of the one party into the hands of the other.

1. Fortunes equal:—take from the one party a portion of the matter of wealth and give it to the other,—the quantity of happiness gained to the gainer of the wealth will not be so great as the quantity of happiness lost to the loser of the wealth.

2. Fortunes unequal:—the poorer the loser, the richer the gainer: greater in this case is the diminution produced in the mass of happiness by the transfer, than in the last mentioned case.

3. Fortunes again unequal:—the richer the loser, the poorer the gainer: the effect produced on happiness by the transfer may in in this case be either loss or gain.

Whether it be the one or the other, will depend partly upon the degree of the inequality, partly upon the magnitude of the portion of wealth transferred. If the inequality be very small, and the wealth transferred also small, the effect produced on the sum of happiness may be loss. But if either be—much more if both be other than, very small, the effect on happiness will be gain.

4. Income of the richer, say £100,000 a-year—income of the less rich, say £99,999 a-year: wealth taken from the first, and transferred to the less rich, £1 a-year:—on the sum of happiness the effect will be on the side of loss;—more happiness will be lost by the richer than gained by the less rich.

Hence one cause of the preponderance produced on the side of evil by the practice called gaming.

5. Income of the richer loser, £100,000 a-year;—income of the less rich gainer, £10 a-year;—wealth lost to the richer, gained by the less rich, £1 a-year:—on the sum of happiness the effect will be on the side of gain. More happiness will be gained by the less rich gainer, than lost by the more rich loser.

Thus it is, that if the effects of the first order were alone taken into account, the consequence would be, that, on the supposition of a new constitution coming to be established, with the greatest happiness of the greatest number for its end in view, sufficient reason would have place for taking the matter of wealth from the richest and transferring it to the less rich, till the fortunes of all were reduced to an equality, or a system of inequality so little different from perfect equality, that the difference would not be worth calculating.

But call in now the effects of the second and those of the third order, and the effect is reversed: to maximization of happiness would be substituted universal annihilation in the first place of happiness—in the next place of existence. Evil of the second order,—annihilation of happiness by the universality of the alarm, and the swelling of danger into certainty:—Evil of the third order,—annihilation of existence by the certainty of the non-enjoyment of the fruit of labour, and thence the extinction of all inducement to labour.

Independently of the destruction which would thus be produced by carrying, or even by the known intention of carrying to its utmost possible length the equalization, or say levelling system, as above, diminution would be effected in the aggregate of happiness, by the extinction of the fund afforded by the matter of abundance for keeping undiminished the stock of the matter of wealth necessary for subsistence.

On consideration of what is stated above, it will be found that the plan of distribution applied to the matter of wealth, which is most favourable to universality of subsistence, and thence, in other words, to the maximization of happiness, is that in which, while the fortune of the richest—of him whose situation is at the top of the scale, is greatest, the degrees between the fortune of the least rich and that of the most rich are most numerous,—in other words, the gradation most regular and insensible.

The larger the fortunes of the richest are, the smaller will be the number of those whose fortunes approach near to that high level: the smaller, therefore, the number of those from whose masses of property the largest defalcation could by possibility be made:—and, moreover, the larger those masses, the greater would be the difficulty which the legislator would experience as to the obtaining at their charge such defalcation as the nature of the case would not exclude the possibility of making.

Thus, for example, it would, in case of over population, be easier in England, or even in Ireland, to ward off famine for a time, than it would be in British India.

Equality requires, that though it be at the expense of all the other members of the community, the income of those whose income is composed of the wages of labour be maximized. Reason: Of these are composed the vast majority of the whole number of the members of the community.

Exceptions excepted, equality requires that the profits of stock be minimized. Reason: Because the net profit of stock is composed of the mass, or say portion remaining to the employer of the stock, after deduction made of the wages of the labour applied to it.

Exception will be—if this supposed case be really exemplified—where the possessors of the wages of labour are so many, and the possessors of the profits of stock so few, that by a small addition to the one, no sensible defalcation will be made from the other.

§ 6.

Axioms relating to Power, Rank, and Reputation.

By axioms relating to power, understand self-serving power, exempt from the obligation by which it is converted into trust.

As between individual and individual, the pleasure to the superior, to the power-holder, from the possession and exercise of the power, is not so great as the pain experienced by the party subjected.

Therefore, only when converted into extra-benefiting by appropriate obligation, can it be conducive to greatest happiness.

The same observations will equally apply to rank, and factitious estimation produced by rank.

So also to extra reputation, or say estimation, unless when acquired by service rendered to others.

The principle corresponding to these axioms, as to equality, is the inequality-minimizing principle.

NOMOGRAPHY; OR THE ART OF INDITING LAWS:

NOW FIRST PUBLISHED FROM THE MSS. OF JEREMY BENTHAM.

OF NOMOGRAPHY.

[* ]See also Principles of the Civil Code, ch. 6, Vol. I. p. 304.

[* ]In England a disproportion still greater than this is actually exemplified.