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No. I.: To the President of the United States of America. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 4 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 4.
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To the President of the United States of America.
Queen-Square Place, Westminster, October 1811.
The offer, which it is the ambition of this address to submit to the consideration of the President of the United States, is addressed (you will see immediately) not to the person, but to the office. By an explanation thus early made, some reading will be saved to you. The respect, of which the offer itself is its own best testimonial, needs not, I presume, any more words for the expression of it.
To come to the point at once—Give me, Sir, the necessary encouragement,—I mean, a Letter importing approbation of this my humble proposal; and, as far as depends upon yourself, acceptance, I will forthwith set about drawing up, for the use of the United States, or such of them, if any, as may see reason to give their acceptance to it, a complete body of proposed law, in the form of Statute law: say, in one word, a Pannomion,—a body of statute law, including a succedaneum to that mass of foreign law, the yoke of which, in the wordless, as well as boundless, and shapeless shape of common, alias unwritten law, remains still about your necks:—a complete body, or such parts of it as the life and health of a man, whose age wants little of four and sixty, may allow of.
This letter, Sir,—I mean the letter above stipulated for,—when once I have it in hand, I have my reward. I have my employment: and the honour inseparable from the employment is the only retribution, that can be accepted for the labour of it.
I say “accepted,” Sir,—not required or expected, but accepted: for from this word corollaries will be deduced, the utility of which, with reference to the proposed service, will, I flatter myself, when brought to view, as they will be presently, not appear exposed to doubt.
The plan of the proposed work,—and therein the supposed advantageous results, the prospect of which forms what the proposal has to depend upon for its acceptance,—the circumstances of advantage attached to the nature of the terms on which the work would be executed,—the declared objections which it ought to be prepared for, together with the answers which those objections seem to admit of,—the latent, but not the less powerful, obstacles which it may have to contend with, the advances already made towards the execution of it,—on all these several topics, some sort of explanation may naturally be looked for:—on all of them, something in the way of explanation shall accordingly be attempted; attempted, though in that state of extreme, and proportionably disadvantageous compression, without which no reasonable hope could be entertained of that promptitude of return in the way of answer, which may be requisite to success.
Before I come to particulars respecting the proposed plan, with its supposed advantages, it will be necessary for me to make reference, once for all, to a view of it which is already in print. I mean the work in 3 vols. 8vo., which, under the title of Traités de Legislation, Civile et Penale . . . . par M. Jeremie Bentham, &c. was, in the year 1802, published at Paris, by my Genevan friend, M. Dumont.
One copy of it was, upon its publication, sent (I understand) by the Editor, to his countryman Mr. Gallatin, Secretary of the Treasury to the United States: whether, in your part of America, any other copies of it have ever been in existence, it has not fallen in my way to know.
Far as those papers were from being considered by the author as having attained a state approaching to that of a finished work, yet of the plan which, on any such occasion as that in question, was then, and still would be, proposed to be pursued, a conception, sufficient for the purpose here in question, may, if I do not deceive myself, be obtained from them. Of the details, even of the proposed text, they exhibit samples more than one, nor those of small account. So much of the plan being already there, it might seem that nothing in explanation of it could be necessary in this place. But, without some preconceptions, how slight and general soever, of some of its most striking peculiarities, what it will immediately be necessary to say of it in the gross might scarcely be found intelligible.
Nature and supposed Advantages of the proposedForm.
In a plan framed for any such purpose as that in question, matter and form—to one or other of these two heads, whatsoever features, whether of excellence or imperfection, may be distinguishable, will, it is believed, be found referable.
1. As to matter, in the character of a test of, and security for, the fitness of the work in this respect—of one constituent portion pervading the whole mass of the rationale (if so it may be termed,) such will, at first glance, be seen to be the efficiency, that of this appendage, a brief intimation, however slight, may, for the present purpose, be perhaps of itself sufficient.
By the rationale I mean (for a sample see Traités, &c. as above,) a mass of reasons, accompanying, in the shape of a perpetual commentary, the whole mass of imperative or regulative matter,—the only sort of matter, to which any body of law as yet extant has ever yet been found to give admission.
Not a single point of any importance will, in any part, be settled, but that, in the rationale, the considerations by which the provision made in relation to it was determined, will be to be found: and, by the connexion, which, through the medium of the all-governing principle, viz. the principle of utility, these reasons have with one another, and by the repeated application made of the same reason to different parts of the text, the quantity of space occupied by matter of this description will be found to have been rendered much less than could readily have been imagined.
This appendage, or component part,—call it which you please,—this perpetual commentary of reasons, is what I will venture to propose as a test; as a test, and the only test, by which, either of the absolute fitness or unfitness of any one proposed body of laws taken by itself, or of the comparative fitness of each one of any number of bodies of law, standing in competition with each other, and proposed as capable of serving for the same division in the field of legislation, any satisfactory indication can be afforded:—a test, to which, by a predetermined and pre-announced resolution, every such composition ought accordingly to be subjected.
Without this appendage, to draw up laws is of all literary tasks the easiest: power and will, wherever it happens to them to meet, suffice for it; of intellect there is no need.—On the other hand, if, with this addition, the task is of all tasks the most difficult, it is at the same time that, in the execution of which, whatsoever trouble may be found necessary to the surmounting it, will find itself most worthily and richly paid for, by real and important use.
2. As to form—here again, by one word—cognoscibility, every sort and degree of excellence, which, under this head, can be given to a body of law, will be found expressible. On the fact of its being present to the mind of him on whose part, to the effect indicated, action or forbearance is, on each occasion, called for, present,—that is to say, in the degree of correctness and completeness necessary to the accomplishment of the legislator’s purposes,—depends, on each occasion, whatsoever good effect the law can be, or can have been designed to be, productive of. But, on the form thus given to the matter, will depend the degree of excellence, in which the property of cognoscibility, as thus explained, has been given to it: on the form, therefore, will, in a proportionable degree, depend the practical good effect of whatsoever degree of excellence may have been given to the matter of the law.
Taking cognoscibility, then, for the end, the following may serve as a sample of the means,—of the securities which, in the plan in question, have been devised and provided for the attainment of that end.
I. Division of the whole Pannomion into two separate parts,—the General Code, and the system of Particular Codes.
In the general code are comprised all such matters, of which it concerns persons in general to be apprised:—in the system of particular codes, each particular code contains such matters only, with which some one class or denomination of persons only have concern:—some one class or denomination, or in case of correlative classes of persons running together in pairs (such as husband and wife, master and servant, and so forth,) some two or other such small number of classes or denominations, whose legal concerns are thus inseparably interwoven.
Merely for illustration’s sake: number of particular codes as above, say 200; average length of each, 5 pages. Consequent advantage: burthen of legal matter to be borne in mind by each person reduced from 1000 pages to 5 pages. Such, in respect of cognoscibility, is the advantage which this single arrangement sufficies to produce. To more such classes, it is true, than one, will one and the same individual person be commonly found aggregated:—I mean, of those classes which, as above, would have each of them its separate code. From the sort of saving in question, a correspondent deduction would accordingly be to be made: but, for illustration, thus much, without going any further into calculation, may, it is supposed, suffice.
From general code to particular codes, and vice versd, frequent references will of course be necessary: nor in the working up of the one can the texture of the other, consistently with clearness and mutual consistency, pass unheeded. But all this in matter of detail, for which no room can be found here.
II. In each code, as well particular as general, an ulterior distinction, noted and acted upon, is the distinction between matter of constant concernment, and matter of occasional concernment. To produce the effect aimed at in the making of a law,—to produce the effect of guidance,—that which is matter of constant concernment must, in all its magnitude, in all its detail, be borne in mind at all times: while, in the case of that which is but matter of occasional concernment, the bare knowledge or suspicion of its existence will in general be sufficient; matters being so circumstanced, that, before the time for action comes, sufficient time for reference to the text of the law, and for perusal of its contents, may, on all occasions, be found.
III. In each code in which it is found requisite,—and in particular in the penal branch of the general code, in which it will throughout be found requisite,—another distinction and division made, is that between main text, and expository matter or exposition.
The expository matter consists of explanations, given of, or on the occasion of, this or that particular word in the main text. In the main text, each word so explained is distinguished by a particular type, accompanied by a letter or figure of reference, referring to that part of the expository matter in and by which it is explained; by which means the fact of its having thus received explanation, is rendered manifest to every eye.
In the course of the Pannomion, should this or that same word be employed in every so many hundred places, one and the same explanation serves for all of them: care having all along been taken to apply the explanation to every such passage, to the end that it may be found conformable to the sense intended, in each such passage, to be conveyed.
So moderate will the number of these essential terms—these expounded words—be found, that the labour necessary to the giving correctness and consistency to the part of the language, the import of which is thus fixed,—fixed by authority of law,—needs the less be grudged.
IV. To the penal code belongs an ulterior distinction peculiar to itself:—matter descriptive of the offence in its ordinary state, and matter indicative of the several causes of justification,*aggravation,† and extenuation,‡ with the grounds of exemption§ from punishment which apply to it.
From beginning to end, one object kept in view and aimed at is—that, the whole field of legislation being surveyed,—surveyed and travelled through, over and over again, in all directions,—no case that can present itself shall find itself unnoticed or unprovided for. Of this object the complete attainment may, perhaps, be too much for human weakness: but, by every approach made towards it, the science is advanced; and, in all shapes, the security of the people against suffering,—sudden and unlooked-for suffering,—is increased.
V. Promulgation-paper:—for formularies of all sorts,—conveyances and agreements, as well as instruments of judicial procedure,—paper, of a particular size and form, and appearance in other respects, provided; with a margin of letter-press, in and by which, in the instance of each such species of instrument, intimation is given of the whole text of the law, relative to the species of transaction therein in question: intimation,—viz. according to the quantity of room occupied by it, given, either in terminis, or in the way of abstract, with indication of, and with reference to, any such portion as is found to occupy too much room to be given in terminis.
In particular, to the whole business of conveyances and agreements would thus be given a degree of simplicity, certainty, and security, of which, even after the many improvements which, I am certain, must have been made in all the United States, upon the original chaos, no adequate conception would, I believe, be readily formed, antecedently to experience.
In and by this method, one useful result is looked for, and I hope provided for; viz. that to such persons, by whom, in respect of its matter, the work may, in this or that part of its extent, be disapproved, yet, in respect of its form, it may still be found of use. Seeing the reasons, in which the proposed provision has found its support and final cause, each such disapprover will thereby have before him such a view as, I hope, will not be an indistinct one, of the force with which, in the shape of reason and argument, he has to contend. On the one side, he may, in this case, see cause to say, “This or that reason seems defective; and taken all together, the whole mass of reasons appear insufficient and inconclusive:” or, on the other side, “The nature of the case affords such or such a reason, no mention of which is, in this work, to be found.”—Thus it is, that, even where the reasoning may appear erroneous or inconclusive, and the proposed provision improper or inadequate,—even in these places, if the matter be stated with that clearness, which it has been the object of the workman to give to everything that ever came from his pen, and which, on the occasion in question, would, in a more particular manner, be the object of his endeavour and his hope,—even his errors may, by serving or helping to bring to view the opposite truths, be found not altogether devoid of use.
In this way it is, that, both in point of matter and in point of form, his endeavour would be to give to the work such a character and complexion, as shall be found correspondent to the progress made, in these our times, in every other line of useful science: to the end that, neither in the whole nor in any part,—in matters of law any more than in matters dependent on mechanical or chemical science,—shall the lot of the inhabitants of your part of the globe, be, in future, determined by the unexperienced and ill-considered imaginations of primæval barbarism.
As matters of law stand at present, in your country, Sir (not to speak of ours,) on what sort of basis is it that every man’s dearest and most important interests stand, or rather fluctuate? On some random decision, or string of frequently contradictory decisions, pronounced in this or that barbarous age, almost always without any intelligible reason, under the impulse of some private and sinister interest, perceptible or not perceptible, without thought or possibility of thought, of any such circumstances or exigencies, as those of the people by whom the country here in question is inhabited at the present time: pronounced by men, who, if disposition and inclination depend in any degree on private interest, were as far from being willing, as from being, in respect of intelligence, able, to render their decisions conformable to the interests, even of the people, by whose disputes those decisions were called for, and whose situation alone it was possible that, in the framing of those decisions, they should have in view:—even of the people of those several past ages,—not to speak of those of the present age, or of ages yet to come.
Since the year in which the work edited by Mr. Dumont, was published in French, at Paris,—viz. the year 1802,—that same language has given birth to two authoritative codes—the one already a Pannomion, or at least designed to become such, published by authority of the French Emperor; the other, confined as yet to the penal branch, published by authority of the King of Bavaria. In both instances, the compositors have done me the honour to take into consideration and make mention of that work of mine. On the proposed occasion in question, I should not fail to make correspondent return, and make my best profit of their labours.
The examination of them is what I have as yet postponed, waiting for some particular occasion, by which such examination might be applied to some particular use. But to warrant a man in pronouncing, and with confidence, that, in and by each of those works, a prodigious benefit has been conferred on their subjects by their respective sovereigns, it is not necessary to have read so much as a single page. Executed as well as the nature of men and things admits of its being executed, no other literary work can vie with it in usefulness:—executed in the very worst manner in which, in the present state of society, it is at all likely to be executed, it can scarcely, when compared with the chaos to which it comes to be substituted, fail to be productive of clear profit in the account of use.
Of some of the leading features, by which the work here proposed would be distinguished from both those,—a work composed for the use of men who are in use not only to think, but to speak and print what they think, from works composed for the use of men who scarcely dare speak what they think, and to whom it has been rendered impracticable to print what they think—a slight sketch, Sir, has just been laid before you.
I. For securing the aptitude of it in point of matter,—in the proposed English work, the rationale above described: in neither of those French works, any security at all, in this shape or any other.
II. For securing the aptitude of the work in point of form,—for securing to it the maximum of cognoscibility—and thereby the advantage of producing, to the greatest extent possible, in respect of number of observances compared with number of non-observances, whatever effect it purposes to itself to produce, in the proposed English work—1. Division into General Code and system of particular codes. 2. Division of the tenor of the law throughout into Main text and Expository matter. 3. In the Penal Code (not to insist on any such division as the usual and already familiar one,) into general titles (titles of general application) and particular titles, (each applying exclusively to a particular species or tribe of offences.) 4. Division of Main text and Expository matter together, into definitional matter, descriptive of the main body of each offence; and modificative matter, indicative of the several causes of justification, aggravation, extenuation, and exemption, which apply to it.
III. For securing, on every imaginable occasion, actual and perfect notoriety,—to each new set of rights acquired, and correspondent obligations contracted,—viz. by whatsoever instruments of conveyance or agreement contracted, and that not only as soon as contracted, but also before contracted, and thence before the time when repentance would come too late,—in the proposed English work, the already described Promulgation paper:
In neither of those French works, for the necessary cognoscibility and notoriety above described, is any security at all, in any of the just above mentioned shapes, or in any other shape, either declared to be given, or discernible.
Here, Sir, you see, was a memento given;—it was not put to use:—here was even a gauntlet thrown down;—it was not taken up. Circumstanced as those respectable and truly useful servants of the public were, causes for such abstention might, without much difficulty, perhaps be found:—causes which it would, however, be more easy to imagine, than useful to express.
That, in the United States, any similar, or any other, causes should be found—found not only operating, but operating with effect, to the neglect of all those securities for the adaptation of law to the only useful ends of law,—is a result, the bare possibility of which cannot, by a feeling mind, be regarded with indifference.
The encouragement, not only stipulated for, as above, but demanded in advance, is a gem of too high a price, to be cast, either into the sea, or across the sea, without thought, or without such prospect of a suitable return as the nature of the case admits of.
Of the presumable fitness of any person for the execution of a literary work proposed by him, no evidence so apposite can, I suppose, be looked for, as that which is presented by a work or works, where any such happen to be in existence, taking for their subject the subject itself which is proposed to be taken in hand, or any part or parts of it.
An assortment, as nearly complete as could be formed, of such of my printed works as have taken for their subject any part or parts of the field of legislation, accompanies this letter, and solicits the honour of your acceptance. They are the fruit of above forty-five years devoted to the study of the science, and for little less than the whole of that time, without a view to anything but the improvement of it.
If to a discerning mind, such as that to which this offer considers itself as addressed, any such loose presumptions, as are capable of being afforded, by tokens of attention and approbation, given by foreign authorities, can be of any use, it can only be by contributing to produce, should such be the result, a recurrence to the only direct and proper evidence—viz. the works themselves.
Citizenship of France, decreed by one of the National Assemblies, on the same occasion on which the like mark of approbation was bestowed on Joseph Priestley and Thomas Payne.—In one of the Legislative Assemblies held during the consulate of the present Emperor, eulogium pronounced by one of the members on the above-mentioned work, and printed in the official paper—Nomination (though by subsequent incidents rendered fruitless) to the then existing Institute of France—Translation of that same work, made by order of the Russian government, and published in the Russian language, besides another published in the same language without authority—Translation of another work, viz. one on the mode of providing for the poor, made and published during the consulate by the municipality of Paris, and (if I have been not misinformed) since put, in some shape and degree or other, to public use—these tokens, together with the notices taken, as above, in the French and Bavarian codes, may, it is hoped, have the additional good effect, of rendering it pretty apparent, that governments of the most opposite forms and characters have found something to approve, nothing considerable to disapprove, and nothing at all to be apprehensive of, in the views and dispositions, with which the task here proposed would be taken in hand.
In a man’s writing, the character of the moral part is not so clearly delineated, as that of the intellectual part, of his frame.
Artifice, in pursuit of some private end, might give birth to an offer such as the present, unaccompanied with any such intention as that of giving effect to the engagement sought: levity, though pure from original insincerity, might intervene at any time, and be productive of the same failure.
On the question concerning intellectual aptitude, the evidence lying before you, the judgment, Sir, will be your own. As to what regards moral promise, the nature of the case refers you in course to the gentleman, be he who he may, who in this country, stands charged with the affairs of your State. Transmitted to him, your letter—I mean the necessary letter of authorization above stipulated for—may, according to the result of his inquiries, be delivered or kept back.
As to the advantages that promise to result from the gratuitousness of the proposed service, though there is not one of them that seems much in danger of escaping the observation of the distinguished person to whom the proposal is addressed, yet, as it will naturally have to pass through a variety of hands, in all of which it cannot promise itself exactly the same degree of attention, it may not be amiss that these features of recommendation should in this place be distinctly brought to view.
1. In the first place, no pecuniary charge whatever being to be imposed on the public, or any part of it, the great and prominent objection which public works in general have to encounter, has here no place:—and be the chance for useful service rated ever so low, still, should any the smallest portion be reaped, it will be all clear gain.
2. By supervening imbecility, by death, or even by levity and caprice on the part of the proposed workman, should the work be left in a state ever so far from completeness, still, to the public, there would be no positive loss: the situation in which in this respect it would find itself, would, at the worst, be but what it is at present—be but what it would have been, had no such proposal been ever made.
3. On these terms, the situation of the workman stands altogether out of the influence of any sinister motive, from which either an undue protraction of the business, or an undue acceleration of it, might be apprehended:—protraction, as if a salary were given, to be received during the continuance of it: acceleration, as if it were a sum of money to be once paid, or a life-annuity to commence, at the completion of it.
4. In respect of the commencement, and so far in respect of the completion, of the work, it admits of a degree of promptitude, the want of which might otherwise be fatal to the whole design. If money were necessary, consents,—I need not set myself to think or to inquire in what number—would be requisite to be obtained—obtained not only for the fixation of the sum, but for the origination of the measure, and, therefore, if not for the giving of any answer, at any rate for the giving any definitive and sufficient answer to this address. As it is, a single fiat, a letter, how short soever, from the authority to which this address is made, suffices for giving commencement to the work: and whatever subsidiary matters may hereinafter come to be suggested, may without inconvenience wait, in that case, all proper and accustomed delays.
5. It must, I think, be acknowledged to be a feature of no small advantage in any proposal, if it be such as to clear from all possible suspicion of sinister interest, all such persons to whom it may happen to take a part in the giving introduction or support to it.
To this sort of advantage, if there be any imaginable proposal that can lay claim, this, I think, cannot easily avoid being recognised to be thus happily circumstanced.
With or without any particular individual, in the character of proposed workman in his eye, suppose the pre-eminent person to whom this proposal is submitted—suppose him bringing forward a plan, tending to the accomplishment of the proposed work, but accompanied with a plan of remuneration, in the ordinary shape and mode. What would be, be he who he may, the motives to which the proposal would be referred?—referred, by adversaries at least, not to speak of friends?—they are by much too obvious to need mentioning.
Supposing it the good fortune of this proposal to obtain the sort of approbation which it aspires to, I have set myself to consider, by what public tokens it may be natural and proper for that approbation to declare itself. The inability I have found myself under, of obtaining the documents necessary to secure me against falling into misconception respecting such of the functions of your high office, Sir, as may be found to have application to the present case, will, I hope, in case of missupposal, obtain for me the benefit of your indulgence.
The steps, to any or all of which it may happen to be taken in this view, present themselves to my imagination as follows:—
1. To lay the proposal before Congress at its meeting, with a recommendation to take it into consideration, stating, or not stating, the provisional authorization given, or intended to be given, to the author.
2. To cause a minute to be made in the books of the President’s office, stating a resolution, on the part of the President for the time being, to lay before Congress any such part of the work as may have been transmitted during his continuance in office, together with a recommendation of the like operation, in the like event, to future presidents.
3. To transmit a copy of this proposal, accompanied with a like recommendation, to the legislative bodies of each, or any, of the several particular States.
4. To cause it, on public account, to be printed and published by authority, as other public documents are in use to be.
For affording to me the necessary encouragement, any one of the above testimonies of approbation would, if notified to me by the President, be sufficient: but the greater the number of them that may come united, the greater, of course, and the more operative, would be the encouragement.
Two things require to this purpose to be distinguished:—1. The design itself; 2. Any work that may come to be presented by me in execution of it.
If, by any approbation bestowed upon the design itself, you were to be pledged for the like or any other tokens of approbation, to be bestowed on any work done in execution of this same design, this would be an objection against the bestowing any such provisional approbation on the design itself. When it comes, the work might appear ill adapted to its purpose, and, on that or any other account, not likely to be approved by the respective constituted authorities, on which the adoption of it would have to depend.
With submission, it appears to me, Sir, that, on the supposition that the design itself has met your approbation, it would not be a committal of yourself, were you to undertake for the forwarding, either to Congress or to the several legislatures, for their consideration, any work, that shall have been transmitted by me, in execution of the design so approved.
For, contrary to expectation, when produced, suppose the work to prove, in your judgment, to ever so great a degree absurd, and even ridiculous, nothing will there be to hinder you from saying so: wherever it goes, there it will lie: nor will it impose, on any person, any such trouble as that of taking it into consideration, unless some person or other should happen to be to such a degree impressed with the contrary notion as to make the proper motion for causing it to be taken into consideration, as in the case of any particular law proposed in ordinary course.
As to the expense of printing—to any such extent as in the different cases may appear requisite—an expense so moderate would hardly, I should suppose, be grudged by those to whom it belongs to judge: if it should, it would not be grudged by me.
Against an enterprise of the sort in question, a host of jealousies and fears will naturally be springing up and arming themselves with objections. To such as appear best grounded, or most plausible, I proceed to submit such answers as the nature of the case presents to me.
Objection the 1st.—Disturbance to property, and other existing rights.—“What!” (cries the man of law) “remove our landmarks! revolutionize our property! throw every thing into confusion! Is this what you would be at? and is this to be the practical fruit of these fine theories of yours?”
Such, Sir, if not where you are—such, at any rate, would be sure to be his language here.
My answer is—So far as the objection confines itself to the law of private rights—when these, and any other number of declamatory generalities in the same strain have been expended, the only real mischief which they hold up to view, is, that which is reducible to this one expression—to existing expectations, disappointment, productive of the painful sense of loss.
What, then, is this mischief, by the apprehension of which the proposed Pannomion is thus to be put aside?
It is the very mischief, under which it is impossible that,—for want of a written, and visible, and intelligible, and cognoscible rule of action, in a word, for want of a Pannomion,—the people in your country should not be at present labouring: the very grievance from which it is the object of this, my humble proposal, to be admitted to afford them my best assistance towards working out their deliverance:—the principal grievance, which it would not only be the object, but, to a considerable degree, the sure effect, of a Pannomion, to remove.
Throughout the whole extent of the territory of the United States (new-acquired dependencies excepted, in which matters cannot but be still worse,) what is it that, at this moment, forms the basis of the rule of action? What but an ideal and shapeless mass of merely conjectural and essentially uncognoscible matter?—matter without mind, work without an author; occupying, through the oscitancy of the legislature, a place that ought to be filled; and exercising in it the authority that ought to be exercised, by law?
Law which, having had for its authors, not the people themselves, nor any persons chosen by the people, but the creatures, the ever-removable and completely and perpetually dependent creatures of the king alone (till the revolution this was completely true, and even since, it has not wanted much of being so,) had, of course, for its main object, not the good of the people, but, as far as the blindness or patience of the people would permit, the interests—the sinister and confederated interests—of the creator, under whose influence, and the creatures, by whose hands, it was spun out:—
Law, blundered out by a set of men, who,—their course of operation not being at their own command, but at the command of the plaintiffs in the several causes,—were all along as completely destitute of the power, as, under the influence of sinister interest, they could not but be of the inclination to operate in pursuit of any clear and enlarged views of utility, public or private, or so much as upon any comprehensive and consistent plan, good or bad, in the delineation of the rights they were confirming, and the obligations they were imposing:—and which accordingly never has been, nor, to any purpose, good or bad, ever could have been, nor ever can be, the result of antecedent reflection, grounded on a general view of the nature of each case, of the exigencies belonging to it, or the analogous cases connected with it: nor, in a word, anything better than a shapeless heap of odds and ends, the pattern of which has, in each instance, been necessarily determined by the nature of the demand, put in by the plaintiff, as above:—
Law which, being, in so far as it could be said to be made, made at a multitude of successive periods, and for the use and governance of so many different generations of men,—men, imbued with notions, habituated to modes of life, differing, more or less widely, from each other, as well as from those which have place at present,—would, even had it been well adapted to the circumstances and exigencies of the times, in which its parts respectively came into existence, have, to a considerable extent, been thereby rendered, not the better adapted, but by so much the worse adapted, to the notions and manners now prevalent, to the state of things at present in existence:—
Law, which, by its essential form and character, as above indicated, is, so long as it retains that form, altogether disabled from either giving to itself, or receiving from any other quarter, improvement or correction, upon a scale of any considerable extent; which, even upon the minutest scale, cannot give to itself any improvement in the way of particular utility, but at the expense of general certainty: nor, even at that price, but by a course of successive acts of arbitrary power—acts productive, in the first place, of a correspondent succession of particular disappointments, followed, each of them in proportion as it comes to be known, by those more extensively spreading apprehensions of insecurity, which are among the inseparable concomitants and consequences of that ever deplorable, howsoever originally necessary and unavoidable, taint of iniquity, inherent in the very essence of ex-post-facto law.
Of ex-post-facto law, did I say? Yes: for that which by common sense, speaking by the mouth of Cicero, has been spoken of as the most mischievous and intolerable abuse, of which, in the form in which it is called written or statute law, the rule of action is susceptible, is an abomination interwoven in the very essence of that spurious and impostrous substitute, which, to its makers and their dupes, is an object of such prostrate admiration, and such indefatigable eulogy, under the name of common or unwritten law.
Of unwritten (for such is the term in use,) but much more properly of uncomposed and unenacted law (for of writing there is, beyond comparison, more belonging to this spurious than to the genuine sort)—of this impostrous law, the fruits, the perpetual fruits, are—in the civil or non-penal branch, as above; uncertainty, uncognoscibility, particular disappointments, without end, general sense of insecurity against similar disappointment and loss;—in the penal branch, uncertainty and uncognoscibility, as before; and, instead of compliance and obedience, the evil of transgression, mixed with the evil of punishment:—in both branches, in the breast and in the hands of the judge, power everywhere arbitrary, with the semblance of a set of rules to serve as a screen to it.
Such are the fruits of this species of mock law, even in the country which gave it birth: how much more pregnant with insecurity—with unexpected and useless hardship—as well in the shape of civil loss, as in the shape of penal infliction, and non-prevention of crimes, must it not necessarily be, in a country into which the matter of it is continually imported; imported from a foreign country, whose yoke the American nation has, to all other purposes, so happily for both nations, shaken off.
Not that I am by any means unaware of the prodigious mass of rubbish, of which, on the importation of English common law into America, part was, on the change of place, naturally, or even necessarily, left behind—other parts, since the original importation, at different times, so wisely and happily cast out of it: religiously persecuting laws, manorial rights, tithes, ecclesiastical courts, in several of the States at least; distinctions between law and equity, secret Rome-bred mode of extracting testimony, I believe everywhere,—and so forth. Not that I am by any means insensible to the prodigious alleviation, which, from the removal of so large a portion of it, the burthen cannot but have experienced. But though, of the whole mass already imported, as well as of each successive mass, as they come respectively to be imported, there is, and will be, so much the less that needs to be attended to; yet, from the respective magnitudes of those several masses so imported, no defalcation ever has been made, or can be made. The consequence is, that what alleviation soever the burthen of the law has ever received, or can ever be made to receive, as above, viz. by successive patches of statute law, applied to the immense and continually growing body of unwritten, alias common law, is confined to the matter, leaving the form of it as immeasurable, as incomprehensible, and consequently, as adverse to certainty and cognoscibility, as ever.
Yes, Sir, so long as there remains any the smallest scrap of unwritten law unextirpated, it suffices to taint with its own corruption,—its own inbred and incurable corruption,—whatsoever portion of statute law has ever been, or can ever be, applied to it.
So far then as disturbance to existing rights is the disorder in question, the proposed operation, so far from producing or aggravating such the disorder, presents not only the sure, but the only possible remedy. Disturbance?—a state of disturbance,—of perpetual and universally extending disturbance—is the very state in which they have hitherto existed; have existed, and, until fixed and secured by the application of this sole remedy, are condemned to remain till the end of time.
All this while, incapable as, in respect of its form, it is of serving, in any tolerable degree, in its present state, in the character of a rule of action and guide to human conduct, nothing could be much further from the truth, than if, in speaking of the matter of which English common law is composed, a man were to represent it as being of no use. Confused, indeterminate, inadequate, ill-adapted, and inconsistent as, to a vast extent, the provision or no-provision would be found to be, that has been made by it for the various cases that have happened to present themselves for decision; yet, in the character of a repository for such cases, it affords, for the manufactory of real law, a stock of materials which is beyond all price. Traverse the whole continent of Europe,—ransack all the libraries belonging to the jurisprudential systems of the several political states,—add the contents all together,—you would not be able to compose a collection of cases equal in variety, in amplitude, in clearness of statement—in a word, all points taken together, in instructiveness—to that which may be seen to be afforded by the collection of English Reports of adjudged cases, on adding to them the abridgments and treatises, by which a sort of order, such as it is, has been given to their contents.
Of these necessary materials, the stock already in hand is not only rich, but, one may venture to say, sufficient: nor, to the composition of a complete body of law, in which, saving the requisite allowance to be made for human weakness, every imaginable case shall be provided for, and provided for in the best manner, is anything at present wanting but a duly arranging hand.
Objection 2. Foreign Yoke.—It was to free ourselves from the yoke of foreign law that we took up arms against the monarch of England; and shall an obscure subject of the same nation fasten another such yoke upon our necks?
It may perhaps appear an idle precaution, to bring to view, in the character of an objection capable of being urged, an observation so palpably void of substance. But it is not always by the most rational argument that the strongest impression is made. At any rate, the answer will, I flatter myself, be found sufficient.
1. The yoke, the foreign yoke, is already about your necks: you were born with it about your necks.
What your proposed scribe does, if he does anything, is to facilitate to you the means of relieving yourselves from it.
2. Year by year, or rather term by term—that is, quarter by quarter—the mass and burthen of it receives, at present, its increase. What he does, if he does anything, will be to help to relieve you from such increase.
3. By him, let him do what he may, no yoke will be imposed; nothing, like the imposition of a yoke, either done, or so much as attempted. By him, let him do what he may, no act of power will be performed, not any the minutest particle of power exercised. The honour for which he is suing, is that of being admitted to work in the character of a servant. Labour alone will be his part: acceptance, rejection, alteration, decision, choice, with as much or as little labour as it may be your pleasure to bestow upon it, will be your’s.
Yes:—if, to have part in the governance and plunder of you for seven years, he were to be occupied in cringing to you, and in flattering you, for as many days or weeks, then indeed there might be power for him to exercise, then indeed there might be a yoke for you to take upon yourselves, and for him to impose:—but any such authority is not more completely out of his reach, than it is, and ever would be, out of his wish.
4. In suing to be thus employed himself, it is no less opposite to his wish, than above his power, to exclude from the same employment any of yourselves. But of this a little further on.
Heavy or light, by your own hands, if by any, will the burthen, if any, be imposed.
5. Innumerable are the yokes,—the additions to the existing foreign yoke,—by which, until you take this only method of securing yourselves against all such nuisances, the burthen, you now labour under, will continue to be increased.
Not a year, not a quarter of a year, but, here, in this country, fresh loads are produced of the excrementitious matter, of which this burthen is composed. Of this matter, this or that portion, will it, or will it not, by such or such a time, have, in your country, begun to swell the load? Upon arrivals or non-arrivals—upon winds and waves—upon good or ill-humour between the two nations—will even possibility depend in the first place.
Let possibility be now converted into fact. The produce of the last twelvemonth, or of the last quarter, or such other portion as accident may have determined, is now arrived. Upon whom, on the occasion of each cause, will the acceptance or rejection of it, and of each particular portion of it, depend? Upon yourselves altogether?—upon your appointed legislators?—upon the aggregate of all your legislative bodies?—or, upon any one of them? No: but, on each particular occasion, upon the will of some one or other such small number of yourselves, acting as judge or judges.
Take, for example, any one such judge, upon this or that case, that chance has brought before him, this or that English decision (let it be supposed) bears; will it, or will it not, be taken by him for his guide? On contingency upon contingency depends the answer. The last cargo, has it, in the whole, or any part of it, come into his hands, or under his cognizance? if not the whole, but a part only, what part? The case produced to him, will he, or will he not, pay regard to it? Yes or no depends—(for I see not how it should fail of depending)—altogether upon his good pleasure. If it be such as suits his views, he makes use of it: if it be such as does not suit his views, he turns aside from it.
6. Innumerable—and many of them still more obscure than your proffered servant—are the workmen, who, in this country, and at present, bear, each of them, a part, in the fashioning of these successive accretions to this your foreign yoke.
At present, under the existing system of blind and sheepish acquiescence, who are they, who thus,—in conjunction, in each instance, with this or that judge,—become respectively the arbiters of your fate? Speaking of individuals, to say who, is, in any instance, impossible: speaking generally, a judge, or bench of judges, nominees of a foreign monarch;—or, to speak more correctly, as well as particularly, a mixed yet uncommunicating multitude, composed of judges, advocates, self-appointed note-takers, law report writers, law treatise-makers, law-abridgment makers, and publishing law-booksellers.
Suppose, on the other hand, the proposed work executed, the proposed Pannomion completed;—in what state would the rule of action be among you in that case? Comprised it would be, the whole of it, in a small number of volumes; the part necessary to each man in particular in some one small volume:—the whole heap of foreign lumber, existing and future contingent, as completely superseded, rendered as completely useless, as an equal quantity of school divinity, or Romebred canon law.
Wide, in this respect, is the difference between a situation, in which not a particle of labour has place without a correspondent particle of power attached to it, and a task which would have to consist purely of labour, without any the least particle of power attached to it.
But, though thus bare of power would be the service in question, if rendered by an obscure and unknown foreigner, the case not only might be, but naturally would be, very different, if a service of the self-same nature were to find the performance of it lodged in the hands of a native. In that case, whatever reputation, and consequent influence, it might happen to a man to obtain by the execution of it, would, in his situation, and for his benefit, convert itself into so much power. In power, in short, not only would the performance of the service terminate, but it is in power that the choice of the person for the performance of it would have originated. If, therefore, the business finds itself in the hands of a foreigner, there will be at least this advantage, viz. that the judgment to be pronounced upon it will stand so much the clearer of the influence of local, as well as personal, enmities and partialities, and the work stands so much the better chance of being judged and decided upon, on the ground of its own intrinsic merits,—its own fitness for the intended purpose.
Discussions of this sort do not, it must be confessed, shed any very brilliant lustre upon human nature;—but so it is that we are constituted: and, being thus constituted, it is impossible for us to act either prudently or beneficially, any further than as we know ourselves for what we are.
As to local jealousies, to my eyes, dissension, be the seat of it where it may, is never a pleasing object. But, though in some measure it depends on a man’s choice what objects he shall fix his eyes upon, it depends not altogether upon his will, what objects shall pass before them.
By the words northern and southern, if my eyes or my memory do not deceive me, one cause of division, more or less active, has been indicated, as having place, and more or less frequently manifesting its influence, in your confederacy. Supposing this to be so, what is then the consequence? For public service in this or in any other line, if a member of the southern division presents himself, or is held up to view, jealousy and opposition gather in the northern regions: and so, vice-versâ.
Another source of division, though to my unpractised eye not so clear and intelligible an one as the foregoing, is that which is brought to view by the words democrat and federalist.
Under these circumstances, be the nature of the work ever so uninviting, if a hand were to be offered for it, from one of the sides distinguished as above, in the natural course of things, it would find on the other side, hands drawn up in array, and prepared, if possible, to repel it. Such at least would be the case here. Such, in a word, would be the case (for such has ever hitherto been the case) wherever there have been parties:—whereever there has been either liberty, or the appearance of it. If to this rule the land of the United States afford an exception, it is a land—not of men, but angels.
Such, then, are the perils which a work of the sort in question would have to encounter, if proposed for a native workman: perils, which, in proportion to the utility of the work, would, it is apprehended, be more likely to receive increase than diminution: from these perils, at least, it would be saved, by acceptance given to a remote and foreign hand.
Objection 3. Foreigner’s necessary ignorance.—A foreigner, by whom the territory has not, any part of it, ever been, or ever will be visited,—who, with the population, with the territory, or its local peculiarities, never has had, nor proposes ever to have, any the least personal acquaintance,—a person so circumstanced,—a person thus ignorant—unavoidably and incurably ignorant—of so many necessary points of knowledge,—is he a person who, with any propriety, can be looked to for any such service?
1. To this question, one answer may be given by another question. The legislators,—such as they are, to whose combined exertions the loads of writing, of which our and your unwritten law is composed, owe their existence,—have already been laid before you, and brought under review:—our advocates, our judges, our note-takers; our report-makers, our treatise and abridgment-makers, our publishing law-booksellers. By how many of all these functionaries has the legislative system of the United States been ever studied—been ever so much as thought of—or the country visited?
2. Another answer is—that, upon a closer scrutiny, the points, which present a demand for local knowledge, would not, it is supposed, be found to cover, in the field of law, so great an extent, nor yet to be so difficult to discriminate beforehand, as, upon a transient glance, general notions might lead any person to imagine.
3. Nor, if I may venture to say as much, would it be easy to find any person, more completely aware of the demand, presented by the nature of the case, for attention to those local exigencies; nor more completely in the habit of looking over the field of law in this particular view.
Of this disposition, and this habit, exemplifications of considerable amplitude may be seen, in the already-mentioned work, which, for these nine years, has been under the public eye: and by that work, Sir, I am saved from the need of attempting, on the present occasion, to give you any further trouble on this head.
Thus in the case of penal law. Of the genera of offences,—as distinguished or distinguishable by their generic names—murder, defamation, theft, robbery, and so forth,—definitions may, for the most part, be the same all the world over. But for particular species, occasion may be afforded, by particular local circumstances:—and so in regard to causes of justification, aggravation, extenuation, or exemption, with demand for corresponding varieties, in respect of satisfaction or punishment:—And so in regard to contracts.
Accordingly, in any draught which I should draw, care would be taken, not only to keep the distinction all along in mind, but to keep pointed towards it the attention of all those to whom in dernier resort it belonged to judge.
4. I say to those to whom it belonged to judge:—for, as it never would be by myself, neither by any one else let it be forgotten,—that, of any body of proposed laws, to which it may happen to have been drawn up by the proposed draughtsman, there is not any part, of which the legislative bodies in the several United States will not take, each of them according to its competence, perfect and effectual cognizance: cognizance no less perfect and effectual than what has been taken of any other portion of the matter of law, to which their sanction has respectively been given or refused.
Whatsoever, therefore, may, in relation to the local points in question, be the ignorance of the proposed and supposed foreign draughtsman, and, in his draught, whatsoever may have been the errors produced by these ignorances,—all such errors will, for their correction, have the same instruments and opportunities as any other errors that ever have been, or may ever come to be, made and corrected.
5. Not but that, on this, as on most other occasions, it is more to be desired that errors, of whatever kind, should, particularly in such a work, have never been made, than that, having been made, they should be corrected:—and, by original exclusion, not only the time and labour necessary to correction would be saved, but the danger of non-correction—of their not being corrected—avoided.
Objection 4. Shame of being beholden to a foreigner.
But a foreigner—how necessary soever the work itself may be—would it not, to American citizens, be matter of just shame, to see a foreign hand entrusted with, or so much as employed in, the execution of it? America, the whole population of United America—the eight or nine millions, or whatever may be the amount of it—among such multitudes of hands, constantly occupied in the business of legislation, does it not contain so much as a single one, competent to such a task?
A question this, which will be apt to appear much more within my competence to put, than to find an answer for. I shall venture, however, to submit answers more than one:—
1. In the first place, what I believe is certain, is—that, whatsoever number of persons thus qualified may, at this time, be in existence, no one such person has as yet, at any time, made himself known as such, or been recognised as such.
2. In the next place,—be the number of persons, in an equal, or by any amount superior, degree, competent to the task in question, ever so great—of the offer here submitted, it is no part, either of the design, or tendency, to deprive the United States of the services of any one. On the contrary, among its tendencies is that of calling forth into action, to this very purpose, and on this very occasion, whatsoever qualifications or capabilities, of the kind in question, may happen to be in existence.
3. Of this sort of national jealousy, if the effect be to call forth into existence any competitors, who would not otherwise exist—so far at least, if the sort of work, supposing it well executed, be deemed a useful one—in such case, as well the utility of this offer as the propriety of giving acceptance to it, will be out of dispute; and, in such a competition, the danger that the work of a perfect stranger should, to the prejudice of local interests and influences, obtain an undue preference, will hardly appear very formidable.
4. If, on the other hand, it should happen to it, either to be the only work produced, or, finding rival works to contend with, to be really, in the judgment of the competent judges, thought better adapted than any other to the intended purpose,—in either of these cases, any such supposition, as that, on the occasion of such a work, these same judges would see their country less well served, or not served at all, rather than see it served by a foreign hand,—and that, accordingly, they would put it in the power of any foreigner, to preclude them from the benefit of a good body of law, or so much as of a single good clause in a law, merely by being the first to propose it, is that sort of supposition, which, if seriously made, would not, I imagine, be, very generally, well received.
5. Whatsoever disposition toward jealousy it might happen to an offer of this sort to have to encounter, a man, of whom it were perfectly known, that in person he could never be present, to give to any one the sort of offence which such a disposition supposes, should naturally, on this supposition, present such a ground for acceptance, as should give him, on this one score at least, the advantage over a native. On affections of this kind, distance in respect of place,—especially when the continuance of it is certain,—produces an effect intimately analogous to, and little different from, that of time. In the present case, were the proposed workman already numbered among the dead, he could not be more effectually placed out of the sight of the people, and in particular of the constituted authorities, in whose service it is his ambition thus to place himself, than, to the day of his death, he would find it necessary to remain, if this his offer found acceptance.
6. So far from operating as an objection, at least in the mind of any gentleman who fills the high station to which this offer is addressed, what I should expect is—to find this very circumstance of foreignership placed, and on this very score, to the account of advantage.
There are certain situations, and those highly important ones, for the filling of which it has been a known maxim among republican states, to resort to foreigners in preference to natives. Among the Italian republics, this sort of policy was applied—sometimes by usage, sometimes by positive law—not only to the subordinate situation designated among us by the title of judge, but to that of podesta: a sort of supreme monarchical magistrate, to whose power, while it lasted, it seems not very easy to assign any very distinct limits. My books are not at present within my reach: but in the case of the podesta, instances, more than one, will be found in Sismondi’s lately published history of the Italian republics: and, in the case of judge, I have read laws to that effect in the codes of Italian states, more than one: and if I do not misrecollect, these instances, or some of them, are mentioned in the “Defence of the Constitution of the United States,” by Mr. Adams.
Of this preference the cause—the efficient cause—seems manifest enough. For any of those great and enviable situations, seldom could a man, whose character was such as to afford him any chance of finding acceptance, offer himself, without raising up against himself, besides a band of rivals, a much larger host of adversaries.
Nor was the justificative cause—the reason—much less clear or impressive. In any such powerful situation, no native could seat himself, without bringing into it, in his bosom, a swarm of sinister interests, prejudices, and partialities.
Advances already made towards the Execution of the proposed Work.
The degree of advance already made by my labours in the field of legislation—and the order of priority in which, if undertaken, the several distinguishable parts of the Pannomion would be proposed to be executed—these seem to be of the number of the topics, on which something will, on such an occasion, be expected, and on which accordingly it will not be allowable for me to be altogether silent.
On these topics, on the other hand, any considerable details would, if comprised within the compass of this paper, swell it to such a bulk, as to subject to too great a degree of uncertainty its prospect of finding a reader, in the exalted and busy station to which it is addressed.
The point for your consideration, Sir, supposing the work in itself a desirable one, will, unless I misconceive the matter, be found to be—whether, if this proposal should be passed by without acceptance, the rejection would leave an adequate probability of seeing the work executed, at any future period, and under other circumstances, to equal advantage?—and, in particular, whether there be any such probability, that any other person will arise, who having, without receipt or prospect of pecuniary retribution, made equal advances in the prosecution of such a design, shall, upon the same desirable terms, be ready to undertake to do what depends upon him towards the completion of it?
To enable you to afford to yourself a proper answer to these questions, the following statements, compressed as they are, and consequently, in a proportionable degree, deficient in point of specific information, may yet perhaps be found to suffice:—
1. In regard to the penal code, the work is already in a state of considerable forwardness. That it was so, so long ago as the year 1802,—not to speak of a much earlier period,—may be seen from the work edited in that year in the French language by Mr. Dumont. What may be seen upon the face of that work is indeed a sample; but it is no more than a sample: a great deal more had even then been executed than is there exhibited; perhaps the greatest part of the whole:—a few months would, if I do not much miscalculate, suffice for the completion of it—I mean, in terminis.
2. As to the civil code, in the adjustment of the terms of it, but little advance has been made: but, in respect of leading principles, of which, in regard to form as well as matter, a pretty ample view may in that same work be seen, they have long ago been settled.
3. Of the subject of the judicial establishment—(the judiciary is, I think, the more concise denomination it goes by with you,)—a pretty full view may be seen in the printed, but never yet published, papers drawn up about the year 1790, on the occasion of the French revolution: copy herewith sent, as per list. To adapt it to the purpose of the United States, if the system actually in force there should be regarded as susceptible of improvement, would of course require considerable modifications.
4. As to procedure—judicial procedure,—in the adjustment of the principles of that branch of the law, considerable progress was necessarily made, of which the result was brought to view, and may be seen in the course of the inquiry made into the subject of the correspondent part of the official establishment, as above.
Since that time, farther advances were made, and presented to view in the work intituled Scotch Reform, &c., published anno 1806: copy herewith sent.
In addition to this, a work, complete, or nearly so, on the subject of Forthcomingness,—viz. on the most effectual, and in other respects most proper, means to be employed for ordering matters in such sort that, whether for the purpose (as they say in French) of justiciability (I mean being placed at the disposal of the judicial authorities,) or for the purpose of evidence (I mean being made to furnish evidence,) as well all things as all persons requisite shall, on each occasion, be forthcoming,—lies by me in manuscript.
5. The subject of evidence has been examined in its whole extent, and sifted to the bottom. A work of mine on this subject, under the title of The Rationale of Evidence,—enough to occupy two moderate-sized quarto volumes,—has been for some time in the hands of another friend of mine, and will be in the printer’s hands in the course of about two months.
For drawing up a code in terminis, grounded on the principles there laid down, very little time would suffice. Of the customary exclusionary rules, rules, which are not, in the law of any country, either consistent with one another, or adhered to with any tolerable degree of constancy,—the place would be mostly occupied by a set of correspondent instructions:—Instructions, from the legislator to the judge, pointing out, inter alia, as causes of suspicion, those circumstances which, in general, are employed in the character of causes of rejection—absolute and inexorable rejection.
On several subjects not included, as well as on several of those which are included, under the above heads, disquisitions may be seen in the subjoined list of printed works. But, to the present purpose, no separate mention of them seems requisite.
The printed but never published fragment, on the subject of the Art of Tactics as applied to political assemblies, is but one essay out of some thirty or forty, which were at that time written, and which, taken together, did not want much of having gone through the subject in its whole extent.
But this is a subject, which I should scarcely myself propose to include in the Pannomion. It is a subject, on which each political body will naturally feel itself disposed to legislate, or at least to act, according to its own views of its own exigencies; meaning exigencies considered with a view to the public good,—the good of that part of the public service;—not to speak of particular interests and prejudices.
As to constitutional law, I mean that branch which regards the mode of appointing the several public functionaries, with their respective powers and obligations:—with you, I believe, the appellative has a sense somewhat more extensive. As to constitutional law thus explained, I mention it for no other purpose than to show that it has not been overlooked. In respect of the matter, no demand for alteration has presented itself to my view, nor should I myself be disposed to look out for any. In respect of the form, something might possibly be found needful to adapt it to the other parts.
But, though it were to be transcribed without the alteration of an iota, still, for symmetry and compactness, it might perhaps be of advantage, that it should go through the hands, by which the other parts were drawn up.
As to the order of operation—I mean as between the different parts of the proposed Pannomion—the penal code is that which, I imagine, has already presented itself to your thoughts as the part which claims the first place. In respect of the matter of it, it is that in which the demand, for variation presented by local circumstances, will naturally be least extensive; and the comparative progress already made in it would, in default of material reason to the contrary, be of itself sufficient to determine the preference.
I know not whether the legal circumstances of your recent territorial acquisitions will be thought to add anything to the reasons for acceptance. In the character either of subjects or fellow-citizens, you have to make provision for the legal exigencies of a new mass of population, differing from you not less in laws and customs than in language. In the state of these their laws, alteration in many points must already have been necessitated,—alteration in many others must be continually in contemplation. Besides the advantage of having the work done—whatsoever there may be of it to be done—upon an already considered and comprehensive plan, might it not, to the new citizens in question, be in some degree a matter of satisfaction to learn, that the preparation of the business was consigned to hands, for whose impartiality there would be such a security as could scarcely have been in contemplation otherwise?
To contemplate the matter on the footing of presumptions merely,—and laying out of the case any such ground for acceptance as the works themselves may be found to afford,—I wish to be clearly understood, in what I say as to the considerations, which, in the present instance, may appear to operate in favour of the experiment, of receiving into the field of legislation the labour of a foreign hand. They are reducible to this simple circumstance,—viz. that of the existence of a person, by whom so large a portion of time and study has been bestowed upon the business, coupled with the assumption that, neither in the British Empire, nor in the United States, does there exist that other person, by whom, upon any comprehensive plan, an equal portion of time and study—I might perhaps add, any portion of time and study—has been employed—especially with any ameliorative views.
One thing I am ready to admit, and am fully assured of: and that is, that if, on general grounds, and setting aside any such casual opportunity, a resolution were come to in your country, to set about the drawing up a Pannomion, reasons for looking beyond the American States (I mean on the ground of abstract aptitude, and setting aside those which have reference to local jealousies and partialities) would not be to be found.
No, Sir;—not the smallest doubt have I, but that, if, in both countries, a Pannomion were to be drawn up, and, in both countries, hands were to be looked out for, in the class of practising lawyers, the hand of an American lawyer would, even for the use of England, present beyond comparison a fairer promise than that of a lawyer of the English school.
What this persuasion has for its ground, is—the observation of the improvements—the prodigious improvements—which, in matter and even in style, since its voyage to America, the law of England has received from American hands.
Laying out of the case those necessary changes, which, in the constitutional branch, have been produced by the emancipation, and the change in the form, of government—(subjects to which my attention neither has turned, nor is disposed to turn itself,) those which, on this occasion, I have in view, are those which, through the medium of such materials as I have been hitherto able to collect, I have had the opportunity of observing in the penal branch, in the civil branch, and in the system of procedure.
Among these, though there may be some, which, being the result of the change in the constitutional branch, could not, consistently with the existing constitutional system, be introduced into the mother-country, yet there are others—and those occupying the greatest extent,—which, with as much advantage, and with as little inconvenience, might be effected in England, as they have been in the United States.
Accordingly, but for the adverse interest of professional men, and the lazy and the stupid confidence, or rather thoughtlessness, with which the bulk of the people have resigned their best interests into the hands of a class of men, who, in so far as affection is governed by personal interest, can never be otherwise than their natural and irreconcileable enemies,—long ago would these same amendments have been made in this country.
In America, the work could not fall into the hands of any persons, to whom the practice of amendment was not familiar:—who had not been in use not only to see amendments made—and made to a great extent,—but made with manifest and undeniable good effect: whereas, in this country (saving exceptions in too small a number to be mentioned) any such work would look in vain for operators, to whom the very idea of amendment was not an object of unaffected terror and undisguised enmity.
In this state of things, suppose any person, myself for example, after making up a list or these amendments, were to come forward with the proposal to introduce the same amendments here:—what would be the reception it would meet with?—“Oh! you want to republicanize us, do you?” This would be the cry set up by the men of law—echoed by all others (a countless multitude) who have any share in the profit attached to the existing abuses:—and in this cry would be found a full and sufficient answer. Foundation, it is true, it would have none. But, such is still the blindness and indifference of the people at large,—so bigoted their admiration, so prostrate their adoration, of their natural and implacable enemies and oppressors.
Such is the bigotry and indifference, which in this country is still prevalent. How long is it destined to continue? This is more than, with any precision, a prudent man will venture to answer. Thus much, however, I will venture to predict, viz. that before this century, not to say this half century, has passed away, this shame to the British Empire will likewise have passed away.*
[* ]Examples—Consent, self-defence, lawful exercise of public power, lawful exercise of domestic power, &c.
[† ]Premeditation, confederacy, &c.
[‡ ]Unintentionality, provocation (contemporaneous or recent) &c.
[§ ]Insanity, Infancy, &c.
[* ]In the manuscript letter, as sent to the President, followed a paragraph or two, the brouillon of which cannot, at this time, be recovered. Nothing of moment is supposed to have been contained in it. To it was subjoined a list, as far as it could be then made out, of the author’s printed works, edited and inedited. And of such of them as could then be procured, several being out of print, copies were therewith sent.—(Note to 1st Edition.)