Front Page Titles (by Subject) No. VIII.: Jeremy Bentham, an Englishman, to the Citizens of the several American United States. - The Works of Jeremy Bentham, vol. 4
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No. VIII.: Jeremy Bentham, an Englishman, to the Citizens of the several American United States. - 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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Jeremy Bentham, an Englishman, to the Citizens of the several American United States.
London, Queen-Square Place,
Testimonials as to this Proposal, and its Author.
Friends and Fellow-men,—
Ere this reaches you, you may have seen, many of you, what, some years since, I wrote to the then President of your United States;—if so, you will have seen what in return was written by that chief functionary of yours to me. You will have seen the sort of service which it was and is my wish to render to you. You will have seen whether, in the opinion of your late President Madison—you will have seen whether, in the opinion of your late Secretary of the Treasury, Albert Gallatin—you will have seen whether, in the opinion of the Governor of Pennsylvania, Simon Snyder—the service itself promised and promises to be a useful one; and how far he who thus addresses you has been regarded as qualified for the rendering it. The tract, in which those Letters are inserted at length, being too bulky to admit of the sort of circulation hoped to be given to these,—short extracts from them are here subjoined.* The title of it is “Papers relative to Codification and Public Instruction,” &c. Copies of it, together with copies of a circular address from me, are on their way to the respective Governors of your States.
You may, I doubt not, learn at any time, by asking him (though never have I asked him,) what your present Secretary of State, late Minister Plenipotentiary in this country at this Court, John Quincy Adams, has seen, and heard, and knows, and thinks of me.
Thus much as to authority—intellectual authority: source of the influence of understanding on understanding: intellectual authority, sole and indispensable foundation for a derivative judgment:—the only sort of judgment capable of being pronounced by any man, in so far as the materials necessary for a self-formed judgment fail of lying within his reach. In the above-mentioned letters, you will have seen a set of testimonials—evidences as pure from all alloy of sinister interest, or even personal and partial favour, as it is possible for testimonials to be—evidences, the value of which no detraction can diminish, no exaggeration increase.
While these letters to you are penning, comes from another quarter a sort of testimonial, capable of being regarded by your representatives in the character of a precedent.
As the quondam metropolis and focus of religious liberty, and the still remaining receptacle of whatsoever comes nearest to pure representative democracy on any other part of the globe besides yours, the State of Geneva cannot be unknown to you. The intelligence I have to communicate to you from thence is this:—For the drawing up of a penal code, grounded on the principles of a work of mine, as published in French, in the year 1802, by my friend, Stephen Dumont, citizen of that commonwealth—a commission has just been given to him: whensoever finished, it is to be printed for the use of the constituted authorities, to whom it belongs, to deal with it in the character of a body of proposed law, as, under the name of Bills, works the same in kind, differing only in extent, are dealt with in this country, and, I suppose, in yours.
Here, then, is a precedent already set: a precedent which,—if without the praise, at any rate without the reproach of originality,—it belongs to your representatives, if it seem good in their eyes—to your representatives, with or without an impulse from you their constituents—to take into consideration and put to use.
In a private letter, dated from Geneva, 17th June 1817, and addressed to the man so well known to you as the oldest and most efficient friend to mankind among English practising lawyers—I mean Sir Samuel Romilly—after speaking of his having received from the constituted authorities a commission as above, Pierre Etienne Louis Dumont,—more commonly known by the shorter signature, Etienne (in English, Stephen) Dumont,—in words, of which the following is a close translation, proceeds thus:—“Bentham’s plan is the basis of my work. I pursue his method in respect of the division into General Titles and Particular Titles. In regard to offences, I adopt the whole of his classification: and more especially the great and beautiful idea, of proceeding in a uniform manner, by commencing with the definition of the offence, and following it by an exposition of the leading terms of which the definition is composed; then, by a statement of the grounds or causes of aggravation, and those of extenuation, applying to each genus or species of offence. This plan, which is altogether new, has a prodigious advantage over every other: viz. that of affording, in a pre-eminent degree, every possible facility to improvement, in every part of the details. In truth, this code will rather be a set of authentic instructions for the judges, than a collection of peremptory ordinances. A greater latitude of discretion will be left to them than was ever left by any code: yet their path being everywhere chalked out for them, as it were between two parallel lines, no power that can be called arbitrary is left to them in any part of it.
“In the code itself they will behold all the considerations capable of affording proper grounds for their decision: and, on each occasion, it is to the text of the law that, in justification of such application as, on that occasion, they think fit to make of those same grounds, they will all along make reference: for example, the several grounds of aggravation and extenuation, respectively above alluded to, on the occasion of their being brought to view, for the purpose of justifying such fixations as shall come to be made of the quantity of the punishment.”* Thus far Dumont.
To the acceptance of an offer such as the present from a foreign hand, various are the objections that will be apt to present themselves: in my first letter to Mr Madison, all those have been met, and will, I flatter myself, be found removed: advantage, and without inconvenience, will be seen to be the ultimate result,—of a circumstance which, at first sight, may be so apt to appear objectionable.
Of this letter, together with the paper containing those others of which you have just seen extracts, your Secretary of State, John Quincy Adams, has done me the honour to take charge, for the purpose of its being transmitted to the Governor of your State.
Such are the testimonies submitted to you for the present, in the character of grounds, on which to form a derivative judgment. Now, then, my friends, such of you as, on this subject,—from such considerations as are capable of being compressed within the compass of a sheet or two of letter-press,—regard yourselves as possessing the means of framing a self-formed judgment,—hear me. Hear an Englishman, whose mind, by the view and prospect of the state of government in this seat of ill-disguised despotism and self-acknowledged corruption, would be sunk in despondency, but for the ray of comfort which beams upon him from your happier clime:—from your incorruptible—your every day more and more flourishing commonwealth: from your government—the only one that now exists, or ever did exist, on the surface of the globe, in and by which the advancement of the universal interest, in preference to all particular and narrower interests, is or ever was the end pursued: pursued?—yes: or in any distinct and unequivocal terms, so much as professed to be pursued.
Properties desirable in a Body of Laws, for all Purposes.
Hear, then, from me, in the first place, the properties or qualities which,—ere it can fulfil the purposes for which in your country laws are, as in every country they ought to be, made,—a body of laws, designed for all purposes without exception, must be possessed of: properties which, accordingly, in a work of this kind, may be stated as being desirable. 1. Notoriety, or rather aptitude for notoriety, in respect of its contents; 2. Conciseness; 3. Clearness in respect of its language; 4. Compactness in respect of its form; 5. Completeness, or say all-comprehensiveness, in respect of its extent; 6. Intrinsic usefulness in respect of its character; 7. Justifiedness, i. e. manifested usefulness, in respect of the body of instruction, by which, in the form of principles and reasons, it ought to be illustrated, justified, recommended, and supported.
In regard to all these several properties, as they come to be explained, you will have to consider—how far, in their present state, the body of the laws, under which you live, is from being possessed of them—possessed of them respectively, in a degree approaching to that which is indisputably desirable, and affords a promise of being practicable. You will at the same time be able to form some sort of conception—not only of my anxiety to give to it the benefit of them all without exception, but, in some general way, of the resources to which I look for the accomplishment of so desirable a result: resources, by the contemplation of which has been produced that sort of conjectural confidence, which you have seen reposed in me by so many of the distinguished men, who are at once so happily possessed, and by general acknowledgment so highly deserving, of your more decided and unrestricted confidence.
Of these seven properties, three, viz. clearness, conciseness, and completeness—all of them qualities intimately connected with one another—will naturally present themselves as being desirable in a literary work of almost any sort: properties, the demand for which is at any rate not peculiar to a body of law; and of which, on that account, no particular mention need here be made. In regard to completeness, however, so peculiar will the import as well as importance of this word be seen, when applied to a body of the laws—peculiar not only in respect of utility but in respect of difficulty—nothing less than the conversion of the whole body of common law into statute law being included in the import of it—that the peculiar point of view in which, on this occasion, it has been necessary to contemplate it, will necessitate a particular mention of it in this address.
In this quality, accordingly,—to which, on this particular occasion, for distinction sake, it may be not improper to add the appellation of all-comprehensiveness,—in this, together with notoriety and justifiedness—(by notoriety understand here, as before, intrinsic aptitude for notoriety)—in these will be seen three qualities—and the only three qualities—which, on the occasion of the offer here submitted to you respecting a body of laws, it will be necessary for me to hold up in any special manner to your view: all three of them as being—completeness as there explained not excepted—such, as, till this your proffered servant ventured on the enterprise, no draughtsman in legislation ever professed to give, or for aught appears ever so much as thought of giving, in any tolerable degree, by means of any peculiarity of plan or texture, to the body of his proposed laws. Under the head of all-comprehensiveness, therefore, as applied to the proposed work in question—under this head, no less than under the several heads of notoriety and justifiedness, explanations of considerable length will be indispensably necessary.
As to intrinsic usefulness, obvious as is the title it possesses to a place not only in most literary works, but more particularly in this, no less obvious will be the non-necessity of making on the present occasion any special or separate mention of it: this being a quality which, of course, and without his being at the trouble of saying so, no man who ever pens a proposed law can fail of being understood, as wishing to be thought to be, and with whatever degree of sincerity professing to be, anxious in his endeavour to bestow upon it. “Whereas it is expedient”—only upon British legislators could such a phrase pass itself off in the character of a reason, or for anything better than a mark of dotage.
But in the ulterior quality of justifiedness, i. e. manifested usefulness, the quality of simple usefulness is included: justifiedness, a quality in which, on the present occasion, so much attention will be seen to have been bestowed: and in this may be seen a quality, which not only has never yet been endeavoured to be given to any comprehensive body of laws, but, until thus noticed by this your proffered servant, appears not to have ever yet been numbered by any person among the properties desirable in, or properly appertaining to, any such work.
I. On Notoriety, as applied toLaw.
As in every other part of the field of human action, so in the field of law, only in so far as it is present to the mind, can any idea be productive of any effect. Ah, poor silly man! that of such a truth, at this time of day, thou shouldst need to be reminded!
Yes: only in proportion as the conception a man has of it is clear, correct, and complete, can the ordinances of the law be conformed to, its benefits claimed and enjoyed, its perils avoided—those perils, with which every path, every step in the field of human action, may be encompassed.
To lodge and fix in each man’s mind, that portion of the matter of law on which his fate is thus dependent—exists there that State, in which this operation is not among the most important duties of the government?
Yet, where is the state, by the government of which any attention whatsoever appears to have been paid to it?*
To enable government to fulfil it to the highest degree possible, has ever been amongst the most anxious of my desires.
For this purpose, means extrinsic to the law itself present themselves of course to every mind:—publishing them, for example, in cheap editions; causing them to be publicly read by certain persons in certain places.
Of all such extrinsic means of notification, next to nothing, however, will be the effect, unless the matter of the law be prepared for the operation, by the distribution made of its contents, and the form into which they are cast.
For this purpose, four leading principles of division, with as many correspondent divisions, have been contemplated and employed by me.
1. First principle of division.—For the benefit of each individual, separate from those portions of the matter of law on which he has a concern, all those with which he has not any concern. Correspondent division, Laws of universal concernment—laws of special or particular concernment. Code, to which are consigned all laws of universal concernment, the General Code. Codes, in each of which that portion of the matter of law in which only one or two† denominations or descriptions of persons are concerned, Particular Codes.
That portion of the matter of law, with which each individual is concerned to be acquainted, will therefore consist of two parts: viz. 1. The General Code: 2. The collection of Particular Codes; viz. those which correspond to the several particular situations in society, which it happens to him to occupy.
2. Second principle of division.—For the benefit of each individual, in that portion of the matter of law in which he has a concern, separate from those portions which he is concerned to bear constantly in mind, those which he is not concerned to bear constantly in mind. Correspondent division, Laws of constant concernment—laws of occasional concernment.
By a law of constant concernment, understand a law which applies itself to this or that incident, which is of such a nature, that without a man’s having warning of it, it may take place at any time: without his having warning, and thence without his having sufficient time for considering with himself how to act, or for taking advice of others. Example of laws of constant concernment: Laws declaring how, in case of an unexpected attack on his person or property, a man may, and how he may not, comport himself for the purpose of self-defence.
Note, that, though in the instance of such laws as are of constant concernment, the chance of their being present to the mind at the time for action, is in the highest degree dependent on their brevity and compactness,—yet, in the instance of such as are of occasional concernment, in such sort as to admit of time for deliberation and consultation,—though, even in regard to these, intelligibility may be destroyed by want of compactness,—brevity is comparatively immaterial. In the case of a dictionary, for example, the largest is little less easily consulted than the smallest. And thus it is—thus, and no otherwise—that brevity and compactness may be brought into consistency with completeness.
3. Third principle of division and distribution.—In the case of laws of constant concernment,—from such laws, on the observance of which the greatest quantity of interest is at stake, detach those, on the observance of which not so great a quantity of interest is at stake. Use of this separation, employing the most efficient means in planting in the mind those portions of the matter of law, on the observance of which the greatest quantity of interest is at stake. Correspondent division—1. Laws of major concernment: 2. Laws of minor concernment.
4. Fourth principle of division.—In regard to laws in general, but more particularly in the instance of such as are of constant concernment, from those principal portions of matter, to which the mind is not led by any other, and which accordingly cannot be kept in mind otherwise than by themselves,—separate all such portions of subsidiary matter, to which, especially when once presented to it, the mind will naturally be led by those same principal ones. In this case, for example, are rules and examples: rules on the one hand; examples of those same rules on the other. Correspondent division,—division into Main-text and Expository-matter.—Compared with expository-matter, main-text possesses not any thing by which its continuance in, or regress into, the mind is facilitated.* But, suppose the main-text once well anchored in the mind, the occasional regress of the expository-matter will find a constant source of facility in the relation it bears to the main-text.
Separated from the expository-matter, the main-text would thus constitute a sort of abridgment of the law: an abridgment of the body at large, as composed of main-text and expository-matter taken together. Thus there would be given the first example that has ever been given, or perhaps imagined, of a Law Abridgment, in which, as far as it went, confidence might be reposed with safety. In this way alone can you be assured, that what is given as and for the expression of the legislator’s will, is so.†
In prose, or even in verse, of that part of the law which is of universal and constant and major concernment, the main-text might be got by heart in Schools. And to this might be added the correspondent part of the body of reasons.‡
That, on every occasion of life, every man should be his own lawyer is plainly impossible. In many instances want of talent, in any instance want of time, may suffice to render it so. But, on this point as well as on others, the further the sense of independence can be carried the better: the better, if not in all eyes, at any rate in such as yours. By no man who is not a driveller, can it be expected that to every lawyer to whom he addresses himself he should be as dear as he is to himself: no man can have a lawyer at all times at his elbow.
Accept my services,—in the book of the laws, my friends, so long as the United States continue the United States, among you and your posterity, in every such accepting State, shall every man, if so it please its appointed legislators, find, for most purposes of consultation, his own lawyer: a lawyer, by whom he can neither be plundered nor betrayed.
Accept my services,—no man of tolerably liberal education but shall, if he pleases, know—know, and without effort—much more of law, than, at the end of the longest course of the intentest efforts, it is possible for the ablest lawyer to know at present. No man, be he even without education in other respects—no man but, in his leisure hours,—so he can but read—may, if so it please him, know more of law, than the most knowing among lawyers can possibly know of it at present.
II. Of Completeness, as applied to the Body of the Laws:—and herein of Common Law.
To be known, an object must have existence. But not to have existence—to be a mere non-entity—in this case, my friends, is a portion—nay, by far the largest portion—of that which is passed upon you for law. I speak of common law, as the phrase is: of the whole of common law. When men say to you, the common law does this—the common law does that—for whatsoever there is of reality, look not beyond the two words that are thus employed. In these words you have a name, pretended to be the name of a really existing object:—look for any such existing object—look for it till doomsday, no such object will you find.
Great is Diana of the Ephesians! cried the priests of the Ephesian Temple, by whom Diana was passed upon the people as the name of a really existing goddess: Diana a goddess: and of that goddess, the statue, if not the very person, at any rate the express image.
Great is Minerva of the Athenians! cried at that same time—you need not doubt of it—the priests of the Temple of Minerva at Athens: that Athens at which St. Paul made known, for the first time, the unknown God. The priests of Athens had their goddess of wisdom: it was this Minerva. The lawyers of the English School have her twin sister, their Goddess of Reason. The law (meaning the common law) “The law” (says one of her chief priests, Blackstone) “is the perfection of reason.” By the author of the book on Ecclesiastical Polity, Hooker,—for between lawyercraft and priestcraft there has always been the closest alliance—the law had long before been discovered to be a supernatural person, and that person of the feminine gender. Yes: exactly as much of reality was there, and is there, corresponding to the word Minerva,—as there is, or ever has been, corresponding to the compound appellative common law.
Would you wish to know what a law—a real law—is? Open the statute-book:—in every statute you have a real law: behold in that the really existing object:—the genuine object, of which the counterfeit, and pretended counterpart, is endeavoured to be put off upon you by a lawyer, as often as in any discourse of his the word common law is to be found.
Common law the name of an existent object?—Oh mischievous delusion—Oh impudent imposture! Behold, my friends, how, by a single letter of the alphabet, you may detect it. The next time you hear a lawyer trumpeting forth his common law, call upon him to produce a common law: defy him to produce so much as any one really existing object, of which he will have the effrontery to say, that that compound word of his is the name. Let him look for it till doomsday, no such object will he find.
Of an individual, no: but of an aggregate, yes. Will that be his answer? Possibly; for none more plausible will he find any where. Plausible the first moment, what becomes of it the next? An aggregate? Of what can it be but of individuals? An individual common law—no such thing, you have acknowledged, is to be found. Then where is the matter, of which your aggregate is composed?—No:—as soon will be find a body of men without a man in it, or a wood without a tree in it, as a thing which, without having a common law in it, can with truth be styled the Common Law.
Unfortunately, my friends,—unfortunately for us and you—in the very language which we all speak, there is a peculiarity, in a peculiar degree favourable to this imposture. Not in any existing European language but ours, is the same word in use to be employed to denote the real and the fictitious entity: not in the ancient Latin, nor in any of the modern languages derived from it: not in the ancient German, nor in any of the modern languages derived from it.
Behold here the source of the deception. But in the mind of any man, by whom this warning has been received, no deception will it produce, unless in this instance imposture be more acceptable to him than truth. In the article a—in the single letter a—he has an Ithuriel’s spear: by the touch of it he may, as often as he pleases, lay bare the imposture. A statute law, yes: a common law, no: no such thing to be found.
Be it a reality—be it a mere fiction—what is but too undeniable, and too severely felt, a something all this while there is, with which you are ever and anon perplexed and plagued, under the name of common law.
“Yes,” says our lawyer: “and, allowing to you that in common law there is no such thing as a law, yet what you will not deny—and what will equally suit my purpose, is—that such things there are—yes, and in no small abundance—such things there are as rules of law.” So much for our lawyer.
Rules? yes, say I: Rules of law? No. These rules, who are they made by? To this question, to find any positive answer is possible or not, as it may happen. But what is not only always possible, but always true, is—that the person or persons,—by whom these rules, whatever they are, are made,—is or are, in every instance, without exception, a person or persons, who, in respect of any part he or they may take, or be supposed to take, in the laying down of any such rules,—have not any title to make law, or to join in making law.
The sort of person, whose case, among those who have not a title to make law, comes nearest to the case of those who have, is a judge. But no law does any judge, as such, ever so much as pretend to make, or to bear any part in making.
What, if passed, he would take upon him to say he does is—to declare law: to declare what, in the instance in question, is law: to declare that a discourse, composed of such or such a set of words, is a rule of law. Thus speaking, he would be speaking the words put into his mouth by Blackstone.
Meantime,—be it or be it not, a rule of law,—here at any rate is a rule, which, having been made, must have been made by somebody. What is more, not only has it been made, but, by some judge whose duty it is to give to real laws the effect of law—the effect of a law, as if it were a real law, has been given to it. The effect? and what effect? exactly the same as if the words which it is composed of were so many words, constituting the whole or a part of some really existing law.
In the words in question, the rule in question, was it then ever declared before?—If not, then in truth and effect, though not in words, the judge, by whom this rule is declared to be a rule of law, does, in so declaring it, and acting upon it, take upon himself to make a law: to make a law: and this is the pretended law he takes upon him to make.
If it was declared before, then not having been made by a legislator, it must have had for its maker some person, be he who he may, of whom thus much is known, viz. that, in the matter in question, no right had he to make law: for its maker, either some judge—that is, a man who does not pretend to have any right to make law; or some other man who was still further from having any such right than a judge is.
At any rate, not having been made by any one of your respective legislatures, this thing then, which, by your judges and your other lawyers, is passed off upon you as and for a rule of law, viz. of English common law—if not by a judge, by whom then was it made? for laws do not make themselves, any more than snares or scourges.
Of all persons, who, on the making of it, can be supposed to have had a part, the only individual, in relation to whom you can have any complete assurance of his having had a part in the making of it, is a printer: the printer, by whom the first printed book in which it was to be found was printed.
But, though it is not without example for the man by whom a book is printed to have been himself the author of it, examples of this sort are comparatively rare. In the ordinary case then, here you have two persons, who have, each of them, borne a part in the making of this discourse, which is palmed upon you for law: two persons, who to you, let it never be forgotten, are both foreigners.
This book then, on what ground is it that the author and the printer together can have thus taken upon them to pass it off—to pass it off in the first place upon us,—in the next place (such is your goodness) upon you as and for a book of law?
First or last, the ground—at any rate the most plausible ground that can be made, comes to this. A portion of discourse, said to have been uttered by some judge—by some judge, on the occasion of some decision pronounced by him in the course of a suit at law. Of this description, take it at the best, was, or in the book was so said to have been, this pretended rule of law: a pretended rule of law made, or pretended to have been made, by a functionary, who, as such, neither had, nor (as you have seen) could so much as have pretended to have, any right or title to make law, or so much as to bear any part in the making of any one law.
Yet, in relation to law, be he who he may, this judge not only claimed a right to do, but has an indisputable right to do something. What is this something? Take, in the first place, to render the matter intelligible, the case of the only real sort of law. Statute law: and suppose that the sort of law under which the judge is acting. What in this case is it that, in relation to this same law, he has to do? By some person—say a plaintiff—the judge has been called upon to do something at his instance: something at the charge of some other person who, if he opposes what is thus called for, becomes thereby a defendant. “Why is it that I am to do this, which you are thus calling upon me to do?” says the judge: “Because (says the plaintiff) a law there is, which, in the event of your being called upon by a person circumstanced as I am, has ordained that, at the charge of a person circumstanced as the defendant is, a person, circumstanced as you are, shall so do.” This law says so and so: look at it here if you have need: it is a discourse which is in print; and to which, at such or such a time, by the constituted authorities, whose undisputed right it was to do so, was given the name and force of law.
Hearing this, or to this effect, the judge—(the facts on which the plaintiff grounds himself being regarded as proved)—the judge, does he do that which by the plaintiff he is thus called upon to do? What he thereupon and thereby declares—declares expressly, or by necessary implication, is—that the portion of law, in virtue of which the plaintiff called upon him so to do, is a portion of law made and endued with the force of law, by an authority competent so to do: and that of this discourse the true sense is the very sense which the plaintiff, on the occasion of the application so made by him, has been ascribing to it.
Thus doing, what is it that, in current language, the judge is said to have been doing? Answer: pronouncing a decision: a judicial decision: in particular a judgment, or a decree. Sometimes it is called by the one name, sometimes by the other: whereupon, in virtue, and in pursuance of this decision, if need be, out goes moreover in his name an order—a writ—a rule:—sometimes it is called by one of these names, sometimes by another:—but if it be a rule, nothing more than a particular rule, bearing upon the individual persons and things in question:—at any rate, ordering the defendant to do so and so, or ordering or empowering somebody else to do so and so at his charge.
That you may see the more clearly what is done under sham law, herein above then you have an account of what takes place under real law. Well now, suppose statute law out of the case, what is done is done then in the name of the common law. In this case then, observe what there is of reality, and what there is of fiction. What, in this case, supposing the matter contested really has place, is, as in the other case, a decision: a decision pronounced by a judge: say by that same judge: a decision, by which expression is given to an act of his judgment, followed by an order, or what is equivalent, by which expression is given to an act of his will. The order is but particular: the decision is in the same case.
But, to justify him in the pronouncing of this decision, something which men are prepared to receive as law is necessary. Real law, by the supposition there is none: fictitious law must therefore be feigned for the purpose. What does he then?—As above, under the name of a rule of law, either he makes for the purpose a piece of law of his own,—or, as above, he refers to, and adopts, and employs for his justification, a piece of law already made, or said to have been already made, by some other judge or judges.
What must all this while be acknowledged is—that, setting aside the question of its propriety and utility in other respects—if, so far as regards certainty,—viz. on the part of the decision, certainty, and on the part of those persons whose lot depends on it, the faculty of being assured beforehand what it will eventually be—a decision grounded on this sham law were upon a par with a decision grounded on statute law, thus far at least it would come to the same thing; and it would be matter of indifference, whether the rule acted upon were put into the state of statute law, or kept in the state of common law. In that case, for determining the utility of the proposed operation called codification, the only question might be—as between the two sorts of law—which of the two, their respective sources considered, afforded, generally speaking, the fairest promise of being most conducive to the universal interest?—that which, at the present time, in contemplation of the exigences of the present time, would have for its authors citizens of the state, mostly natives of the country,—chosen by the rest of the citizens, in like manner mostly natives,—or that which, in the course of several hundred years, was made at different times by from one to five persons, every one of them appointed by a monarch—by a monarch, under a constitution, of which, even in its most improved state, the yoke was found by you to be so grievous, that, at the imminent peril of your lives and fortunes, and, by the actual sacrifice of them to no small extent, you resolved to shake it off, and shook it off accordingly.
Thus much as to what, for illustration sake, may be conceived to have been the case. But alas! look to what is really the case, the more closely you examine into it, the more clearly will you perceive, that even on the ground of certainty, no comparison will this sham law be able to stand with real law. Yes: as well in point of stability might you compare the waves of the ocean with the rock they beat upon, as in point of certainty common law with statute law:—with this only genuine sort of law, which it is here proposed to substitute throughout to that spurious sort.
Suppose then, my friend, whoever you are,—suppose that, on the strength of this or that supposed particular decision, or this or that general rule, by the advice of a lawyer whom you have consulted, a suit at law has been engaged in by you, either in the situation of plaintiff, or in the situation of defendant: for simplicity sake, say in that of plaintiff: if in that of defendant, the same or the correspondent observations will still apply.
In appearance, suppose this decision ever so clearly decisive in your favour. Observe how many and what chances there are of its proving insufficient: insufficient, and by reason of its insufficiency occasioning you to lose your cause. Observe the list of objections—observe the alleged grounds or causes of invalidation; grounds or causes more or less peremptory, through which it has to run the gauntlet.
Of the rules in question so improperly called rules of law, the sources are, as above, decisions: of these general rules, particular decisions: from preceding decisions come rules, and from these rules again succeeding decisions.
Out of these rules and decisions are made treatises and abridgments: treatises, containing, with or without rules, argumentation about rules; abridgments, containing alleged rules, with or without—commonly without—the argumentation out of which the rules were spun, and in which they were drowned.
The books, in which are contained the decisions said to have been pronounced on each individual occasion, with the argumentation by which they are said to have been preceded, and the rules which in the course of that argumentation are supposed to have been laid down as referred to, are called Report Books.
Behold now a sample of the objections—of the alleged causes of invalidity or insufficiency, on the ground of any one of which, much more of all of them or a number of them together, the decision or supposed decision, on which the confidence of your advisers rested, may by the judge be found to be insufficient: insufficient in such sort that, in consequence of the alleged insufficiency, you will lose your cause. Behold them, if your patience serves you, here below.*
Thus in the case of common law. In the case of statute law, of all these sources of uncertainty and insecurity what is the number that can have place? Not one. In the case of statute law, no law can ever come into competition with any law of posterior date.
To the necessary uncertainty of common law, add now its equally necessary incorrigibility: incorrigibility, as in relation to all other points of imperfection, so in a particular manner in relation to this. Imperfections in statute law are continually cured by statute law: imperfections in common law can never be thoroughly cured by common law. By common law they can not be cured: and by statute law it has never been the fashion to cure them. Without the concurrence of lawyers, non-lawyers in the legislature would not know how, or would be afraid to attempt, to cure them: but to lawyers, to bestow any such concurrence is not, generally speaking, by any means pleasant. In common law, they behold, as you have seen, the goddess of their idolatry: by anything that contributes to the lessening of her glory, they have nothing to gain, they have much to lose.
By common law, I say, imperfections in common law never can be cured. By every attempt made at any such cure, whether for the moment the particular mischief in question be or be not excluded, general uncertainty—a disease, with which as with a palsy, the whole frame of this fictitious body is shaken—is a sure result. If, by the judicatory in question, on the occasion in question, the authority of the decision or the rule in question can be overthrown, so by this same or any other such judicatory may any other: in this way may the authority of the whole system of common law be shaken: shaken, and with it, in so far as the contrariety is known, the confidence hitherto so generally, but always so unwarrantably, reposed in it.
To save it from this reproach, recourse has been had to one or other of two expedients; viz. forced construction, or distinction.
First then as to forced construction. Upon the phrase employed in giving expression to the decision or the rule in question, the judge puts a sense of his own, such as no other man upon earth would have thought of putting upon it. But, by this remedy, the disease, instead of being cured, is aggravated. The more extensive a man’s acquaintance is with the language of common law, the greater the number he finds of these forced constructions: and the greater the number of them thus found, the better grounded, and naturally the stronger, is the general assurance thus obtained, that the whole of the field over which the dominion of common law has extended itself, has been thick sown by her with mantraps.
Thus much as to forced construction. Now as to distinction: taking a distinction as the phrase is.
In a statute law, on the occasion of every rule there laid down, a sort of caution, which by the penman is observed of course, is—to ask himself whether his purpose requires that the rule should be conformed to throughout the whole of the extent which the words of it import,—or whether, to give a correct expression to his meaning, there may not be this or that exception, that requires to be taken out of it: and if yes, set down of course is the description of all such particular exceptions, in the train of the general rule. This being the case, one good consequence is—that whatsoever notification is given to the general rule, is given—and, at the same time, to all the several exceptions, by which its extent is limited, and its import fixed.
Such being in this respect the case under statute law, observe now how it is under common law. Open a book of common law,—be it report-book—be it abridgment—be it treatise,—among rules by dozens and by scores, scarcely will you find one, but what, if it be not itself an exception to another, or even if it is, has exceptions tacked to it. But those exceptions—at what time was it that they were respectively tacked to it? At the time of laying down the general rule? No: but each of them at a different time: on the occasion of this or that one decision was the general rule laid down: on the occasion of so many different decisions, pronounced each of them at a different point of time, these several particular rules.
When an exception of this sort is applied to, or rather taken out of, a rule,—thus it is that a distinction is said to be taken. But, to the possible number of these distinctions never can there be any adequate assurance of an end. What is the consequence? that in the whole body of rules, such as they are, of which this common law is composed, seldom can you find one, which is not pregnant with deceit and disappointment. Say that, here or there, this or that one there may be, to which at no time any exception,—or, if exceptions have been attached to it already, any ulterior exception,—would ever be attached. But, whatsoever just ground for confidence to be reposed on might be framed by these few trust-worthy ones, is destroyed by the multitude of untrust-worthy ones, with which they are encompassed and confounded: I say, confounded,—for to the trust-worthy ones no car-mark is there, whereby they can be distinguished from the untrust-worthy ones.
To apply this general matter to your own particular case, my friend, as above supposed. First, see how you may be disappointed and ruined, by means of a forced construction. The decision or the rule upon which, as above, your leaning was, is, as it stands, clearly in your favour. But, authorised by a practice so extensively pursued and so familiar to every body,—the judge, to compass his object, whatever it may be, has recourse to the expedient of a forced construction: he puts a new, and till then never imagined sense, upon the words, either of this very decision or this very rule in which your trust was, or of some other, which, by this means, is set in opposition to it, and enables him to destroy the effect of it.
Next, observe how you may be put into the same sad case, by means of a distinction. Taken in its generality—taken in the whole of its extent, with the exception of one particular part—the judge sees nothing to object to in the particular decision or the general rule on which you rely. But, upon a close view of it, he sees reason to take a distinction: that is, to take out of the general rule a particular case, to which it seems to him that it ought not to be considered as extending: which particular case is exactly the case in which you stand.
Such might be the uncertainty of the law—such the insecurity of the citizen under it—even if the whole mass, of the matter of which it is composed—of the matter in which these rules are contained, or out of which they are deduced—were at all times in the hands of every body. But in this respect, how stands the fact? In your country more especially, neither the complete stock of data, nor any thing approaching to it, is in the hands of any body. Volumes, by scores, by hundreds, not to say by thousands,—dollars by thousands, not to say by ten thousands—would be necessary to complete it:—in a word, a complete law library would be necessary: nothing less. Whether, even in this country, in which this immense mass of delusive learning has its source, in any one hand any one such collection is to be found, is more than I would undertake to say: what I would undertake to say, and without much fear of contradiction, is—that in no one hand would any one such thing be to be found in all your United States, on the day on which these letters are landed.
If even, in each of your United States, not one only, but half a dozen hands, each of them possessed of such a treasure, were to be found, what would the citizens at large be the better for it? The result would be a monopoly: a monopoly of this necessary of life,—a monopoly, with this half-dozen of monopolists sharing in it.
Suppose even, that in the day, for example, on which this letter of mine is landed, a large library thus complete were in the house of every lawyer in all your United States,—even in this miraculous case, what would any one of those your lawyers, not to speak of the rest of you, be the better for it? By the next arrival comes a cargo of fresh English made law, by which to an indefinite extent the anterior stock of law is superseded: some of the general rules, completely overturned and superseded, by rules of equal extent, or by rules of greater extent in which they are included;—others, cut into and superseded in part, by distinctions and exceptions.
Even if it came from a legitimate source—from hands competent to make law—thus incapable of being known, even to your lawyers, would this English common law be: thus incapable are they of knowing it: they, whose profession it is to know it, and who, on pretence of knowing it, take payment of you for communicating to you what they thus pretend to know.
But, if such is the case with those who pretend, and are thence supposed to know it,—what, my friends, must your case be,—you who, knowing but too well that you neither do know it, nor of yourselves are capable of knowing it, have no other means of keeping yourselves safe from the perils with which you are encompassed by it, than by repairing, on the occasion of each question, to one of these your living oracles, and asking him what it is he knows or thinks about it?
Great as it is, the perpetual state of insecurity, in which you are all kept by this imposture, is not the only mischief produced by it. From the uncertainty comes not only insecurity but corruption: insecurity, in the situation of the non-lawyer—corruption, or at least a most powerful and perpetual temptation to it, in the situation of the lawyer, and in particular in that of the judge.
In most of the instances, in which under common law a case has been seriously argued, the judge might, without reproach to his probity or his judgment, have pronounced a decision opposite to that actually pronounced by him.—In the character of a well considered maxim, the fruit of long meditation, operating upon long experience, from how many mouths, without communication with one another, has it not happened to me to hear an observation to this effect? no such conception at the same time appearing to have been entertained by the author, as that by this observation any sort of reproach was cast upon this spurious sort of law, or upon any man from whom it ever received support or eulogy.
No cause ought ever to be given up as desperate! First from the mouth of Wedderburn—and in these very words—was that aphorism brought to me, presently after it was uttered. Wedderburn was at that very time in office; soon afterwards,—under the title of Lord Loughborough, surmounted afterwards by that of Earl of Rosslyn,—Lord High Chancellor of England, head of English law.
In your country—not to speak of this—the power which is thus in every instance arbitrarily, is it ever in any instance corruptly exercised? This it is not for me to say; for it is not possible for me to know. This, however, I will take upon me to say—that, for corruption, supposing at any time a man disposed to give himself to it, the head of man could not conceive, nor the heart of man desire, a more efficient cloak: and that, under it, whatsoever corruption has not place, it is to the individual, not to the state of the law in this respect—or, if to the state of the law, not to the state of this part of the law—that all thanks are due.
True it is, that under the worst system of judicature imaginable, some points there would always be, too clear to admit of wrong decision without infamy. But, in regard to the bulk of those which, in the present state of judicature—whether among us or among you—come actually under debate,—if, being a judge, my object were to gratify undue favour, prejudice, antipathy—even lust of gain, so it were without need of communication between myself and the party—no difficulty should I find; and if, being in possession of supreme power, it were my desire that judges should have the faculty of acting corruptly for ever in their hands, no means so effectual could I find, as that of ordaining that, throughout the whole field of law, the rule of action should be and continue every where in the state of common law, no where in the state of statute law. For my own part, considering the nature of man on the one hand, and the state of the law on the other, I do not see how it is possible that corruption—corruption of this necessarily unpunishable kind—should not, in every country, to the extent of the dominion exercised by common law, be in no inconsiderable degree frequent.
To any judge not known to me—to any judge individually taken—nothing of corruptness can I impute, in my own mind, on the score of his acting under the system in question, thus favourable to corruption as it is. But, not altogether easy would it be for me, in my own thoughts, to exempt from the imputation of corruption the mind of a judge, who, with this picture before his eyes—this picture of the invitation given by the system to corruption—should persevere in any such endeavour, as that of putting an exclusion upon any measure, which, without being pregnant with mischief in any assignable shape, should afford a promise of making any sort of advance towards the ridding the community, be it what it may, of so pestilential a nuisance.
After all, when corruption, on the part of the judge, is spoken of as a thing distinct from uncertainty on the part of the law, only to the cause, or perhaps to the quantity of the effect, does the distinction apply,—not to the nature of the effect.
For argument’s sake, suppose every judge, without exception, were corrupt: wherein would ultimately consist the real mischief?—wherein, but in this, viz. that no man could possess any tolerably firm assurance, but that, by means of this corruption, he remained continually exposed to injury: to injury, in every shape and without redress.
Well: though in degree it be extreme, in specie all this is but uncertainty:—uncertainty of the law—and nothing more.
Away with exaggeration—away with indiscriminating antipathy. A scourge as it is now, this sham law—time was when it was a blessing: nay, in a certain point of view, it will be seen to be a blessing even now.
You have seen what it is made of, and how it has been made,—viz. from particular decisions, general rules deduced by judges and others: by the authors or by others, those rules, before printing was in use, accidentally committed to writing,—after that to printing,—and thus made public: every tittle of it made by individuals, not one of whom so much as pretended to have any such right as that of making law. But in those same days,—improper as was the language by which any such name as law was given to them,—these rules, such as they were, were by no means without their use. Decisions and rules together, they formed,—not only a light, by which the paths taken by succeeding judges were lightened,—but a barrier, by which they were in some degree kept from going astray. In the character of a barrier, the effect they produced was in some sort, however imperfectly, the effect produced by real law: in the character of a light, howsoever faint, and frequently false, they produced another good effect; and that of a sort very scantily and irregularly, if at all, produced by real law. Ever and anon, by reasons—by reasons such as they were—and not always bad ones—a ground was made for these rules; and, along with the rest of the matter, these reasons were made public: made public—and that at a time when little or nothing in the shape of reasons was visible, in the character of an accompaniment to any portion of real law.
Antecedently to the appearance of these lights, what was the state of the rule of action, and of the citizen under it? Every decision was completely arbitrary: every judge had to begin afresh: no improvement in judicature; no art, no science, because no experience: no materials out of which grounds for law—for real law—could be made.
With the decisions were necessarily recorded the cases by which decision was called for: for example, the sorts of offences capable of being committed: the sorts of contracts capable of being entered into: the sorts of incidents, by which, to one or other of the parties, or to the public at large, the contract was capable of being rendered unexpectedly injurious: the sorts of titles, by which a reasonable claim to property was capable of being produced or put an end to.
A library, composed of the books in which these cases are thus brought to view—such a library, even though there were not so much as a single law in it, is at any rate a rich storehouse of materials for legislation: such a storehouse, that without it no tolerably adequate system of laws could be made. The more ample the stock,—so it be not to such a degree vast that the mind is lost in it,—the more effectual the provision made, made for this most necessary and arduous of all intellectual works.
The greatest quantity of wealth possessed in this shape by any other nation, is penury, in comparison of that which has been furnished by English Common Law. In this point of view, it is a blessing even now. As a light to the legislator, to assist him in the making of real law, it is a matchless blessing—this sham law: as a substitute to real law, now that the times are ripe for the making of real law,—in this character, indeed, though in this character only, is it a curse.
Time was, when, for want of recorded experience, the pen of the legislator could find no tolerably adequate indications for its guidance. Time was:—but that time is now at least at an end. Yes. In comparison of the practice of deciding each individual case purely on its own ground, without regard to consistency in relation to former decisions, and without looking for guidance to any lights derivable from former ones,—the practice—of resorting to memorandums made of the purport of former decisions, and of the circumstances in which they were pronounced,—was, doubtless, notwithstanding the looseness and untrustworthiness so frequently exemplified in those memorandums, a vast improvement. But, on no grounds can the advantageousness of this practice be demonstrated, but on those same grounds the superior advantageousness of the form of real law,—in comparison of the conjectural and fictitious substitute, framed by imagination out of those same materials,—will be rendered ten times more strongly and clearly visible.
Every man his own lawyer!—Behold in this the point to aim at.
Why every man his own lawyer?—1. Because no man’s interest is as dear to his lawyer as it is to himself.
2. It is not every man that can afford to pay a lawyer.
3. No man, how rich soever, can have a lawyer always at his elbow.
Every man his own lawyer? Yes:—but who shall make him so? Not he himself, as would be the case, if, instead of lawyer, you were to say tailor, shoemaker, or (as may be seen in the title of a book) broker. One sort of person there is, by whom, so far as the nature of things allows, every man may, and by whom alone any man can, be made his own lawyer: and that is the legislator. I say, so far as the nature of things allows. For, let the legislator have done his utmost, still the possibility of a man’s being his own lawyer will depend on the nature and situation of the man. As to more or less of the law, to some will always be wanting the necessary talents: to any one, may at any time be wanting the necessary time. No business can be mentioned, in which it may not incidentally be more for a man’s advantage to carry it on by proxy, than to carry it on himself. To so universal a rule, assuredly no exception can be afforded by law business.
No: never can the profession of a lawyer be wholly superseded: never, at any rate, the office of a judge.
But, in the impossibility of attaining the summit of perfection, no reason can be given for not aiming at it: by every step made towards it by the legislator, a blessing is bestowed.
Take, in its utmost extent, the mass of legislative matter with which, in the country in question, the universal interest requires that the field of law shall be covered—take any portion of it whatsoever,—what is necessary is—that such part as the pen of the draughtsman finds in the state of common law, and such part as it finds in the state of statute law, should, without any distinction, be cast together in one mass. What part he finds in the one state—what part he finds in the other—what part of the field, finding it as yet unoccupied by both, he sees reason to cover with new matter—in no instance need any trace of distinction be exhibited: none, at least, in respect of the form given to the matter: howsoever, in the way of note, intimation may be conveyed of the distinctions which once had place. Accidental as these distinctions are—the boundaries shifting place from day to day—no use can there be in keeping them on foot.
All this while, let it never be out of mind—that, in no case, by any part of the authorized rule of action, can any good effect be produced, any further than as it is known: to no part of it is it possible to be made known, any further than it has been made complete.
As to the arrangements which have been made, and would be employed, for securing to the mass of law in question, as far as it goes, so essential a property,—considering the limits necessary to be set to the length of this address—and the situation of by far the greatest number of the eyes for which it is designed,—the giving any tolerably intelligible indication of them would not here be possible.
In a work, published as long ago as the year 1802, composed I know not how many years before, a survey, which for this purpose had been taken of the whole field of thought and action, may be already seen. Three thousand copies of that work are abroad, in countries more than one: not only by individuals, but by the constituted authorities, signal have been the marks of approbation bestowed on it: no where any fault found with it.
Yet by no government, in no nation, in or for the penning of its laws, does any such all-comprehensive survey appear to have been made. Indeed, to an unaccustomed eye, no wonder should the operation present itself as an impossible one. But, by helps derived from the useful part of logic, works of this kind—as by helps derived from algebra, works of calculation* —may be executed, such as without such helps would indeed be impossible.
To your proffered workman, this part of the task has long ceased to present so much as the idea of difficulty: so long has he been in the habit of contemplating, in this point of view, objects of all sorts and sizes. For the purposes of public instruction, in a work,—a copy of which the Governor of your State has, it is hoped, in his hands ere these letters can have reached yours,—the whole field of thought and action has again been actually subjected to a survey of this kind: in a table in which an outline of the result of that survey is brought to view, it may be seen how comparatively small a portion of that universal field can properly be taken for the field of law.†
III. Of Justifiedness as applied to a Body of Law.
Third and last of the qualities hereinabove brought to view, as being indispensably to be desired in the aggregate body of the laws, justifiedness: justifiedness, a quality which, supposing the reasons adequate, will, in so far as the application of them extends, be given to it by an accompaniment of reasons.
No:—it suffices not, that in itself the matter of the laws be throughout of a reasonable, that is to say of a useful, quality; in the degree, in which it might be, and therefore ought to be, it cannot be so, unless it be seen,—and thence, unless it have been shown,—to be so. But, useful it cannot be seen to be, but in proportion as the considerations, by which, in the character of reasons, it has been proved to be so, not only have been brought to view,—but, in the instance of the person in question, at the very time in question, are actually in view. Let this be granted,—it follows, that no mass of the matter of law is what it might be, and therefore ought to be, otherwise than in so far as, throughout the whole extent of it, it is furnished with a correspondent body of reasons, for its accompaniment and support.
Note well the variety of characters, in which,—to or with reference to the several descriptions of persons, to whose lot it falls, in various ways, to have concern with the several parts of the body of the laws,—a correspondent body of reasons would be of use.
I. To the citizens at large, considered separately in their character of subjects to the law: persons bound respectively to conform their conduct to its ordinances. To men considered in this situation, the body of ordinances being supposed already constructed, a correspondent body of reasons would serve in the double capacity of an anchor and a compass: of an anchor, to fix the details of it in the memory: of a compass, to point to the true sense in case of doubt. In a former Letter, the main text of the ordinative part was stated as being capable of serving in no inconsiderable degree, in quality of an anchor to the expository matter. But, to fix it in the memory, the main text itself stands in need of an anchor: this anchor will be found for it in the accompaniment of reasons. Composed, themselves, of considerations having regard to the universally exemplified, and universally recognised, principles of human nature, viz. feelings and desires,—these reasons have their anchor already prepared in every human breast.
II. To the legislator (for simplicity of conception, let us consider the whole body of the legislature as one man)—to the legislator, considered on the occasion of his entering upon the task of framing the body of the ordinances—a correspondent body of reasons would serve in the several capacities of an instrument of guidance—an instrument of salutary restraint—and an instrument of support—say a compass, a barrier, and a support:—in so far as it happens to him to be well-disposed, in the character of a compass, to point out to him the right path: in so far as it happens to him to be ill-disposed, a barrier, to prevent him from swerving into any wrong path; in so far as being well-disposed, it may happen to him to find himself, in respect of his ordinances, subjected to accusation at the hands of a part of his fellow-citizens, in the character of his constituents,—an instrument of support, to justify him in the sight of the whole.
III. To the judge, considered on the occasion of his being about to engage in the task of grounding a decision, and thereby putting an interpretation upon this or that article in the body of the ordinances. In the same three characters, in which the body of reasons has just been seen serving, when applied to the situation of the legislator, viz. compass, barrier, and support,—in the same characters may it be seen serving, when applied to the situation of the judge.
IV. To the citizens at large, considered in their character of sensitive beings. In this character it would be to them a source of security and tranquillity of mind. Such will this rationale be to each citizen, when condered as an anchor, serving to fix the ordinative part on his mind:—thereby preserving him from the dangers, liable to be produced to himself, whether by unintentional deviation on his own part, from the path of rectitude and safety, as marked out by the law; or, by deviation from the like path, in the several instances of the legislator and the judge, for want of that guidance and restraint, which it affords to their respective situations as above.
What difficulties will not such an instrument be seen to throw in the way of arbitrary power, wheresoever seeking to intrude itself, whether in legislation or in judicature!
V. To Citizens at large, considered in the character of moral and intellectual agents, and in particular at the time of life allotted for the receipt of instruction. To the extent of that part of the field of action, over which the arm of the law shall have extended itself, it will serve in the additional character of a lesson-book: a book of instruction in the art and science of morals.
To the art and science of morals belongs the indication of the sorts of acts, by which, in the various situations of life, the universal interest is served or disserved,—or, in other words, general happiness in all imaginable ways increased or diminished. Of the sorts of acts by which it is in the highest degree diminished, the description will have been, under the several names of offences, given in the penal and civil code taken together, more especially in the penal. Under one or other of two heads, viz. rules of perfect obligation and rules of imperfect obligation, have the rules of morality—the whole aggregate of them—been wont to be ranked. Those, the general observance of which is most indispensably necessary to the being, as well as well-being, of society, are the rules of perfect obligation: and these are rules of law.
VI. To public functionaries in general—i. e. to such of the citizens, by whom, at any given point of time, any of the situations comprehended under that name are occupied or expected to be occupied—and in particular to all such by whom any such situations are occupied, as those of members of the legislature in any one of your United States, it will, in proportion to the extent of it as above, supposing it to be what it will aim at being, serve as a book of instruction in the art and science of legislation.
VII. To Electors in general—i. e. to such of the citizens, by whom at any given point of time, the right of suffrage is possessed, with reference to the filling of such of the above situations as are or shall have been filled by election, it will serve in like manner in that same character, viz. that of a book of instruction: a book, from which they will receive assistance, towards forming whatsoever judgment it may respectively happen to them to feel disposed to form, respecting the degree of appropriate aptitude, possessed with reference to the several official situations, by the several candidates.
In the situation of legislator, think how urgent is the demand for an accompanying instrument of this kind, as a security for the goodness of his ordinances—for their universal subserviency to the universal end which they ought to have in view:—as a perpetual standard of reference,—to be consulted—in the first place by himself, in the next place by his constituents: by himself, while occupied in the framing of these same ordinances; by his constituents, while occupied in judging of them. Without this accompaniment, a law is not necessarily anything more than a mere expression of will: only by means of such an accompaniment, can any proof be given, that to any such faculty as the understanding, exercise has been given in the fashioning of it. Without this accompaniment, fashioning the ordinances themselves is work for any man: so he have but the power—the political power—no driveller so weak in mind as not to be capable of executing it: the same hand, which in one moment has been employed in embroidering a robe for the Holy Virgin, may the next moment be employed in the penning of a law, consigning to death and torture the miscreant in whose eyes the exactness of its fitting shall be matter of dispute. Give a man but the power, be his will ever so flagitious, be it ever so foolish, words may be found for the expression of it: and, no sooner are they found, than they become words of law: and no sooner does the law thus made become law, than knaves by thousands, and fools by millions, not content with submitting to it, fall down and worship it.
Such throughout, but for such an accompaniment, may be the body of the ordinances under which a nation groans: on the other hand, suppose the body of the laws furnished with such an accompaniment, and that accompaniment such as it ought to be and might be, he by whom it has been framed must, by the very supposition, have been—reference had to the time at which it was framed—to say the least, among the ablest of the able, as well as among the wisest of the wise.
Suppose it then not only fashioned but in use: and now, with a mischievous or foolish law in his eye, in the situation of member of the legislature, suppose a man wishing to bring it into existence. To what course can he betake himself? There exists the rationale, bearing against him and his desired law perpetual testimony. Either in the whole, or in the particular part in question, he must succeed in the endeavour to remove this bar,—or, so sure as the wished-for law is proposed, the force of the bar will be brought to bear upon it, and pulverise it.
A law—any law—how can it be a good one, any further than as, in support of it, good reasons can be given? A man, who, speaking of a law, should take upon himself to declare it to be a good one, and as such supported by good and adequate reasons,—what credit can any such assertion of his be entitled to, if he has not those same reasons to produce?
Note here, that not with anything less in view than a complete body of the laws, can the sort of accompaniment in question be fashioned, with any near approach to full and adequate advantage. Stationed at a certain degree of proximity to that universal end in view, which constitutes the ultimate and universal reason of all laws for which any good reason can be found—stationed at this point of altitude, and thence occupying the correspondent portion of extent in the field of law, reasons assume the character and the name of principles. Suppose that, no such principle being as yet established, a set of ordinances in detail are brought forward, and to them is added an accompaniment of reasons: what will be the consequence? Set down as they are without any all-comprehensive plan—set down consequently without any stations respectively fixed for them in any such plan—clearness, correctness, completeness, compactness, consistency in design, and uniformity of expression—all these essential qualities would be wanting to these reasons. In this state of things, fortunate indeed will be the law to which they are attached,—if, taken all together, they are not frequently productive of erroneous practical results: in a word, if, in consequence, the laws, of which they form the accompaniment, are not, to an amount more or less considerable, productive of evil consequences.
If, on any one point whatsoever, any advantage, how slight soever, could with any colour of reason be ascribed to common in comparison with statute law, it would be on the ground of the sort of argumentative matter of which the mass of common law is composed, and which has no place in statute law. The remark has been already made. As in a dunghill here and there a grain of corn, so in a volume of common law here and there a grain of genuine reason—reason derived from the principle of general utility—from a regard to the universal interest—may be found. But, into the proposed body of law, the grain alone, none of the excrement will be admitted: no fictions: no technical reasons: sound grain, and nothing else: a sample has, as above, been under the eye of Europe these last fifteen years.
As to the addition, that would thus be made to the bulk of the body of the laws, let it not be an object of alarm to any one. The more extensive the view taken of the field of legislation, the more clear and correct it may be: the more extensive, clear, and correct, the more consistent, compact, and thence concise it may be: for, how often does it not happen, that by some one general observation the need of a multitude of observations of detail is superseded? True it is, that, be the part of the field what it may, limits, to the degree of conciseness, capable of being given, to the discourse expressive of the reasons belonging to the ordinances for which the public interest presents a demand, cannot but have place: but, small indeed will the quantity be found, in comparison of what might be expected by any workman, who, on taking measure of it in his mind, should look for a pattern, either to the debates of a legislative body, or to the argumentations delivered in a judicatory, on a ground of common law.
To the survey itself, of which the proposed accompaniment of reasons would be the fruit,—the quality in question, viz. all-comprehensiveness, was, as far as faculties permitted, actually given. It will not have been for want, either of endeavour bestowed, or of time occupied, should any failure in respect of the accomplishment of this object be discovered.
In and for that part of the field of law which is occupied by constitutional law, the result of an attempt, made about the year 1809, towards laying a foundation for an appropriate code, has just been laid before the English public: viz. in a short tract intituled Plan of Parliamentary Reform: published in May 1817. To this, in and for matters of detail—to this, as far as it goes, considered at any rate in the character of a sample, reference might be already made. In the French language, for the civil and penal branches of law, a sample of a work of this sort, though in a state not complete enough in respect of extent to serve for anything more than a sample, has already been before the public for these fifteen years. To give to it not only additional correctness but completeness, towards which ulterior advances have long ago been made, would be among the objects of the labours here proposed and offered.
Opposing Interests—Interests adverse to the Acceptance, as applied to an offer of this nature.
Essentially defective would be this address, if, after explaining the nature of the offer it is intended to convey, it were to omit altogether to present to view the interests, which, supposing it ever so advantageous, an offer of this nature cannot but find opposed to acceptance.
Stranger as I am to everything that is individual in your country, I not only am, but shall be clearly seen to be, under the happy impossibility of having had individuals in my eye. Situation—from that source alone will be drawn the observation of any such particulars, as on this occasion it seems necessary I should remind you of. In anything, therefore, that follows, no individual can behold any cause of personal offence.
“To satisfy yourself beforehand what, on a given occasion will be the course a man will take, look to the state of interests.” Be the class or body of public men to which a man belongs what it may,—of public men—not to speak of other men—for a clue to the conduct, which ought to be expected at his hands, this is what, in one of my lately published works* has been ventured to be proposed in the character of a universal rule. True it is, that, in the case of this or that particular individual,—this or that particular situation, by bringing into play this or that particular interest which happens not to be exposed to observation, may, in appearance at least, afford an exception to that rule. But, what on the present occasion belongs to the question is—not how it will be in regard to a few individuals, but how it will be in regard to the majority.
Unfortunately for the interest of the majority of the people of all classes taken together, the interest of the great majority of the body composed of the men of law—say in one word the interest of the man of law—is, throughout the whole field of law, with very inconsiderable exceptions, in a state of hostility—irreconcilable hostility—with that universal interest. From the law in its present state, mischief—and that such as in its own nature is not incapable of being excluded,—is continually flowing into the community in most unhappy abundance. Of this mischief it is of course the interest of the community that every particle should be excluded: but, of this same mischief, with exceptions to a very inconsiderable amount, not only is it the interest of the man of law that every particle should remain unexcluded, but that it should at all times receive as large an increase as possible.
We have a doctrine here—that it is wrong to say anything that can tend to weaken the confidence of the people in public men: so that when the state of things is such, that the interest of public men is in a state of opposition to that of the people, it is wrong to give intimation of the existence of any such state of things. With us this aphorism has been uttered not only with grave faces but to grave faces: grave would not be the faces, to which in any assembly in your union any such lesson were delivered.
In your country, or in any other, exists there that person, to whom the opposition between the universal interest and the particular interest of the man of law can be a secret?
No surely: not upon reflection. But, in this as in so many other instances, of that of which no man need be informed, men in general may every now and then need to be reminded.
That,—under a body of law, in great part fictitious and spurious, and as to that portion which is not so, in no part, unless by accident, either known or knowable by any one whose fate depends on it,—that, under such a system, uncertainty as to the treatment he will eventually receive at the hands of the ministers of the law—uncertainty, and on that account insecurity, is an undeniable consequence,—has in the course of these letters already, it is hoped, been pretty well put out of doubt:—insecurity, in respect of almost every one of the possessions, on which being and well-being depend.
But—“To the glorious uncertainty of the law,” in the character of the lawyer’s toast, to whom is this adage unknown? and, of the proposition implied in it, in whose eyes was the truth ever matter of doubt? By what man, even among men of law, was it ever desired? Suppose it uttered in the character of a jest: by being uttered in good humour, does truth change its nature and become falsehood?
1. Advising Counsellor—2. Pleading Counsellor—3. Attorney—4. Conveyancer,—behold in these the several characters, in one or more of which the professional lawyer acts. In every one of them,—such of you my friends, as are not lawyers,—examine and consider, whether his interest be not opposite—irreconcilably opposite to yours. In every one of them—in this, as in every other profit-enticing occupation—is it not a man’s interest to render the sum of his profits as great as possible? But—his profit, whence is it but out of your loss, that it comes? Is it not therefore his interest—not only where he has the whole of the profit, that that profit, and thence your loss, should be as great as possible,—but also, where he has but a limited part of it—say for example a tenth—that that part, and thence the whole, out of which it is to be extracted, and in proportion to which it increases, should be as great as possible? thence, rather than that, for example, he should not gain his ten, you should lose your hundred dollars?
As in other instances, so in this, is it not the interest of the existing dealers in any article, not only to have if possible the monopoly against all other rival dealers in that same article, but also against all persons, who but for the monopoly might, instead of customers for it, become makers of it, each for his own use? Is it not, then, the interest of the man of law, that, for his benefit, it should, by as many men as possible, be found impossible for them, on the several occasions above indicated, to conduct their own affairs? Is it not, then, his interest to render it, and keep it, impossible for them—each for himself, and of himself—to know what, on each occasion, will be the treatment he will eventually experience at the hands of the judge? and, in consequence of this impossibility, is it not his interest to render it and keep it necessary for them, if time admits, to repair to a lawyer for advice? and, if the time does not admit, or they have omitted to apply for such advice, to render them still severer sufferers, viz. by this or that suit at law, to which the errors they have fallen into, for want of such advice, have given birth?
Of this monopoly, behold, then, in few words, the two objects: 1. Means of being and well-being, as far as dependent upon law; 2. Means of safety against the perils of the law.
In the case thus described, is not every sort of man, who has anything to sell, whether it be goods or labour? labour on whatsoever subject employed? In the occupation of lawyer can any circumstance be found, by which his mind is exempted from being acted upon by those same springs of action, by which, in the instance of every other occupation, action is determined? If not, then is it not true, that the more eminent the degree, in which any scheme of legislation promises to be conducive to the acknowledged ends of all legislation, the stronger is the interest by which he is excited to use his utmost endeavours to oppose it?
True it is, that, like every other sort of man, the lawyer has his share in the universal interest: in that interest, by which a man stands engaged to wish, that in his own instance the rule of action may be as effectually conducive to its acknowledged purposes, and thence as completely, as well as correctly, known as possible.
But, on the other hand, what you will not fail to observe is—how much greater, generally speaking, to each individual lawyer, the value is of his share in that particular interest, in which, in his quality of a lawyer, he has a share, than his share in that universal interest, in which, in his quality of human being, he has a share. From that ignorance of the law, from which, in respect of the management of their own affairs, non-lawyers have so much to suffer, he, in respect of his own affairs, is, by the supposition, comparatively speaking, and in his own opinion at least, exempt: and, as for any ignorance, under which, in respect of the management of the affairs of his clients, it may happen to him, by the inscrutability and uncognoscibility of the laws, to be condemned to labour,—generally speaking, the client alone, not the lawyer, will be the sufferer by it. As to the lawyer, so far from being a sufferer, in so far as the effect of the error produced by the ignorance is to produce more business, he will be a gainer by it. True it is, that, in so far as it may happen to the client to perceive that there has been error, and that it is at the door of the lawyer that the error lies, the lawyer may, in the article of reputation, be a loser. But thus to see into the secrets of the law is not the lot of every man: in particular of every man who is not a lawyer.
Of the whole field of law, what is that part, by the improvement of which the man of law has, upon the balance, most to gain or least to lose? Answer—The penal branch. Why the penal branch? Answer—Because it is that branch, in which, in a more particular degree, depends the protection endeavoured to be afforded, against such injuries as in their nature are most afflictive, and to which, in every situation, man is more or less exposed. Take, for example, depredation in its coarsest forms: such as theft, highway-robbery, house-breaking,—murder, on the occasion of either. On the one hand, the offences here in question having their source in indigence,—on the other hand, individuals of all classes—the indigent not excepted—being exposed to suffer by them,—hence the sufferer is very likely, and the injurer almost sure, to have but small means, if any, for purchasing professional assistance. While, from delinquency in those shapes, as a man, he has as much as any man to suffer,—as a lawyer, the man of law has less to gain from it in those shapes than in any other. A consequence is—that, supposing it possible to keep completely separate from the rest of the law these particular parts, or even the whole, of the penal branch,—what might very well happen is—that, as it would be his obvious interest, so would it be his real wish, to see the rule of action improved to the utmost. But scarcely is any such perfect separation possible. Not only between all of the several parts of the penal branch, but between the penal branch and the civil branch, both taken in the aggregate, the connexion is most intimate: too intimate to admit, in the sight of eyes naturally so jealous, any adequate assurance that improvement begun in one place could be there brought to such a stand, as to be prevented from ever extending itself any further.
True it is, that particular cases may be supposed, in which, in his situation, no peremptory bar would be found opposing itself to his concurrence, or at any rate to his neutrality, in relation to the supposed benefit. But that, in any considerable proportion of the whole number of instances, any such agreeable suppositions should be found verified, you will judge, my friends, whether it be not rather too much to hope.
Among such of your men of law as are either members of your legislature, or possess an influence more or less considerable in elections, take any individual for example: call him, as in one of our plays he has been called, Mr. Eitherside.
An offer, of the nature of that in question, being made to your State, Mr. Eitherside, supposing him to take a part in relation to it, will he support it or oppose it? Such being the question, the answer will, on each occasion, depend upon the proportion which, in Mr. Eitherside’s eyes, has place between the value of his share in the universal interest, and the value of such part of his share in the particular interest of the profession, as is at stake upon the acceptance or rejection of the offer.
Suppose, that, in relation to the universal interest, acceptance, if given, does, in his eyes, afford a promise of a nett benefit,—the following may be stated as the cases in which, the sinister professional interest notwithstanding, it may happen to him to be desirous of being contributory to the giving of such acceptance.
1. If, on the one hand, in his eyes, the public benefit be so great, and, on the other hand, the private and personal loss so small, that the value of his share in the public benefit promises to be greater than that of his share in the profit from the public mischief.
2. If, in his eyes, such is his own individual position, that, by the benefit expected to the public from such acceptance, no reduction will at any time be produced in the amount of his individual share in the professional profit resulting from the public mischief, in the diminution of which the expected benefit would consist.
3. If, though some reduction may have place, yet—so small is its greatest amount, so distant the probably nearest time of its taking place, and so great the uncertainty whether it will take place at all,—at the same time so great the reputation to be gained by giving support to the measure, so great the disrepute to be incurred by making opposition to it,—that the giving support to it will, upon the whole, be the most advantageous course he can pursue.
It is more pre-eminently in the general character of a precedent—whatsoever it may be in its own particular character—that, in proportion as it is good, everything that is good is,—to every sort of man whose particular interest is hostile to the universal interest, and in particular to the man of law,—an object of terror. Principiis obsta—set up the bar at the threshold—is of course the motto of such men.
Sharp enough, of course, with us, are the eyes of the man of law, in their look-out after everything that threatens them with reform or improvement: anxious enough their endeavours to keep it out. With you, one circumstance there is, the tendency of which is to give additional strength to those same propensities. Among you, with the exception of what you have derived from us, everything that regards government is on so good a footing,—and consequently, upon the whole, that proportion of abuse which remains still unextirpated is, comparatively speaking, so small,—that nothing can be more natural than that this “rest, residue, and remainder,” as they say in the law branch of the flash-language, should be cherished and defended, with a degree of pertinacity proportioned to its scantiness.
Yes: the more closely the field of law is looked into, the more clearly perceptible will be the opposition of interests, which on this ground has place, between such of you as are lawyers, and (to employ a useful phrase I have observed in books of American growth) the balance: the balance composed of non-lawyers, or—as lawyers say, or at least used to say—lay-gents.
Look back to the three qualities, held up to view as essential endowments of a complete and adequate body of law, viz. 1. Notoriety, or rather intrinsic aptitude for notification: 2. Completeness, including complete extirpation of common law; and 3. Justifiedness; i. e. the quality conferred by an adequate accompaniment of reasons. Not one is there of these instances, in which you will not find—that, the greater the degree in which this endowment is possessed by any proposed body of laws, the greater will be the injury done to the particular interest of the correspondent body of professional men, in so far as their prosperity is dependent upon their practice.
1. Aptitude for notification.—That which the lawyer lives by the sale of is—law-knowledge or the semblance of it: of this necessary article, the larger the stock which each man is enabled to receive from the only pure and genuine source—viz. the law itself,—the less the need he has of resorting for it to any such impure and inadequate source.
2. Completeness.—The further the rule of action is from having been rendered complete, the further it is from being capable of being made known—each part of it, to every man who has need to be acquainted with it: and, the greater the degree, in which the extension given to real law is accompanied by a correspondent extirpation of common law, the greater the degree in which true are substituted to false and deceptious lights.
3. Justifiedness.—In the body of the laws scarcely can that disorder be found, against which, with a degree of efficiency more or less powerful and immediate, a well compacted accompaniment of reasons will not, as you have seen, operate as a remedy: scarcely, at the same time, a disorder, from and with which, in proportion to its acerbity, the profit of the man of law does not receive its increase. Moreover, with the spurious sort of law, from the interpretation of which lawyer’s profit is, so large a portion of it, derived, is mixt up all along a quantity of argumentative matter, uttered under the name of reasons. True it is, that of this matter, some portion is composed of genuine reasons:—reasons derived from the principle of utility:—from the consideration of the effect of the species of action in question, upon human feelings—upon the universal interest. Technical, however, to use the name by which among themselves they speak of them—technical are the sort of reasons, of which the great mass of this same argumentative matter is composed. But wherever, conjoined to the word reason, you see the word technical, for explanation of the word, add, or substitute—for so you may do with little danger of error—the words absurd and dishonest: absurd in its nature, dishonest in its cause, viz. in respect of the end or object with a view to which it was framed. At the head of the list of these same reasons, may be placed law fictions: a sort of article, which may be defined—lies, devised by judges to serve as instruments of, and cloaks to, injustice:—injustice in various forms, and in that of usurpation of power in particular.
Now, suppose a complete body of ordinances, and for its support a correspondent rationale, composed of reasons, introduced by principles: a body of reasons—complete, consistent, and compact, into which no reason drawn from any other than the only pure source—the fountain of general utility—were admitted. In comparison of these genuine reasons, how would they appear—those spurious ones—to which lawyers have given currency one among another, for the purpose of passing them off for genuine upon their customers? What would then be the emotions they would excite? Awe and admiration as at present?—No: but scorn and abhorrence.
Not that from all that has been said, any such conclusion follows, as that, in a preponderant and prevalent degree, thus adverse to the universal interest is the interest of every individual lawyer among you, without exception. All that follows is—that so it is, in so far as his dependence in pecuniary matters is on his profession,—and barring all particular circumstances, which may happen to intervene, and give an opposite direction to the force of interest. Say that a lawyer has no interest in the uncertainty of the law,—as well might you say, that a gunpowder-maker has no interest in war, or a glazier in the breaking of windows.
Of the particular circumstances here alluded to, one there is, which, in its application, is confined to that sort of lawyer who is in possession or expectation of a seat in one of your legislatures. If, in his view of the matter, the offer promises to find favour in the eyes of his constituents, and that to such a degree, as that, in the event of his voting for the rejection or neglect of it, he will not, at a future election, be numbered among the objects of their choice:—at the same time that in his eyes the value of his official situation is greater than that of the quantity of emolument, which, by acceptance given to the offer, would at the long run be cut off from the profit of his practice.
On this occasion I will venture to put it to you,—whether, of the strength of the claim which any representative of yours can have upon you for your confidence,—the magnitude of the interests which you have at stake on the use made of the offer being considered,—there can be a clearer or more instructive test, than the sort of countenance which he shows to it.
Such, then, in relation to the grand point in question, is the state of interests. And—not to speak of individuals individually taken—taking men in bodies, what is their conduct ever determined by, if it be not by interest?—the balance, on the account taken by each man of his own interests?
Your representatives at large—whence happens it that, in that all-commanding situation, their conduct has, in relation to every thing but the state of the law, been so uniformly conformable to the interest of their constituents? Whence, but because by your matchless constitution it has been made their interest to keep this conformity inviolate.
So far as concerns the state of the imported part of the law, this conformity has not, at any rate in anything like an equal degree, had place. Why? Because, though in most other instances, in the event of his sacrificing your universal interest to his own particular interests, it would be in your power to punish a representative by withdrawing from him that confidence, in the continuance of which his continuance in such his situation depends; yet, for not having either brought, or used his endeavours to bring, the general mass of the law into a better state than it is in at present, it would not be in your power thus to punish him: at least consistently with any regard for justice. Why? Because, among men in general, the importance of the sort of work in question seems not as yet to have been sufficiently understood:—because what is everybody’s business is nobody’s business:—and because, until some prospect had been opened, of a measure, from which, with a reasonable expectation of success, a work of this sort might receive its commencement,—no one individual, in whom the blame of omission could, with any sufficient reason, be made to attach, was presented to view by the nature of the case.
But, though there exists not any one, whom, antecedently to the making of the offer in question, it would have been competent for you thus to punish,—on the one hand, now that such an offer has been made, whether in the event of his receiving it with opposition, or even with indifference, there be any one from whom you need scruple to withdraw your confidence, is a question which lies before you.
In the exposure thus made of this sinister interest, and of the state of temptation, under which those who are partakers in it are, on all occasions, kept by it,—may be seen the eulogium—the uncontradictable eulogium—of all those, if any such there be, in the texture of whose minds there shall be found a force of principle, strong enough to oppose to it an effectual resistance.
To no man can it be matter of just reproach that his situation is such as exposes him to temptation. Be the temptation what it may, the act or line of conduct to which a man is invited by it being by the supposition mischievous, the stronger the temptation the greater his merit if he resists it. In the observations which you have just seen, every lawyer by whom any sincere assistance shall have been afforded to this offer, may in this letter behold a testimonial, of the merit manifested by him in the rendering so high a service: and, whatsoever may be said against the judgment thus exercised by him, the probity manifested—manifested by the self-sacrifice—will at any rate stand unquestionable.
If it be true, that, at the height to which the state of government in your country has already risen in the scale of excellence, no ordinary benefit, of the number of those for the receipt of which it has room still left, can be equal to the extraordinary benefit, which, supposing the rule of action put upon the proposed footing, would have place,—so, in the situation of representative, neither could any ordinary service be capable of coming into competition with the corresponding extraordinary service.
The completion of the work, would it be at best remote?—in any sensible degree the production of the looked-for good effect still more so?—even the very commencement of it, all chances considered, precarious? Well, if so they be—the greater the degree in which all these things are, the less is the detriment which each such professional man has to apprehend, on the score of his professional and personal interest, while the glory, of contributing in this way to the advancement of the universal interest, is, from the first moment, at his command.
Such are the interests, to the hostility of which a measure of the sort in question is doomed to find itself exposed. I wish it were equally in my power to put you as effectually upon your guard, against the weapons to which, on an occasion such as that in question, the war of words is wont to have recourse. Those which I have in view rank under the general name of fallacies.
By the word irrelevancy, may by far the greater number of them be designated: be the measure on the carpet what it may, they are irrelevant to it: they bear no particular relation to it: and of these irrelevancies, personalities, of which there are also various kinds, form no inconsiderable part.
Impracticable and mischievous—mischievous and impracticable: this is the conclusion on which, be the measure what it may, opposition is apt to begin or end. In the course of my own observation, to what multitudes of measures have I not seen them applied!—measures, of which the utility has afterwards been certified by unquestioned experience.
On the present occasion, the essential thing is—to engage your attention to the nature of the particular object, to which, if at all, these epithets will have to apply. It is nothing more than this:—in relation to the proffered body of proposed law, on the part of the house of representatives, a resolution, engaging them to receive it, and take it into consideration. This done, and the work received—and, on any one day, taken into consideration accordingly,—the very next day, if not approved of, the whole together may for ever be put aside.
This done, all is done for which I stipulate. To say what mischief can ensue from this, seems not to be a very easy task. In the event in question, the natural course for the Assembly to take would, I suppose, be—to order the work to be printed for the use of the members. But in this case there would be expense:—an expense, to which, if, in the eyes of those to whom it belongs to judge, the work affords not an adequate promise of being useful to their constituents—those same constituents should not, by any act of their representatives, be subjected.
To no such expense, however, do I call upon the representatives of any State to subject their constituents. On the contrary, without any expense to them, other than that of conveyance (this being without the reach of any calculation of mine) I hereby offer to present, to the representative body of any State, a number of printed copies exceeding that of its members: the copies to be delivered here in London, to any person commissioned by the competent authority in the State to receive them; reserving to myself only the right of reducing the number presented to each, should this offer find acceptance at the hands of more than one.
In return, no such State will, I hope, grudge me the present of a printed almanac,—or by whatsoever name the work be designated,—by which, if any such thing be in existence, the official establishment of the State, with the expense belonging to each of the several situations contained in it, is brought to view. My wish is, in the most detailed and demonstrative manner, to contrast the principles and practice, in so exemplary a degree established in your happy commonwealth, with the system of regulated—, which is here called government:—with the waste and corruption that characterizes the system of that government; and which, every time I think of it, fills my mind with a mixture of shame, and melancholy, and indignation.
Testimonies, as to the Species of Work here offered, and its Utility.
At the outset I submitted to you, my friends, some testimonies in favour of the present proposal and its author. The time is now ripe for adding to them a testimony or two in favour of the work. I mean the species of work: testimonies, by the light of which,—even supposing the execution ever so much inferior to what I cannot but flatter myself you will expect to find it,—you will see, in the very nature of the work, how much you have to hope from it.
Of these testimonies, the body of statute laws, established in France by Napoleon, is the main source. They consist, in the first place, in the recognition made of the utility of the species of work by the restored authorities: and this, notwithstanding the inferiority of the individual work, in comparison with that, of which, in case of acceptance given to this my offer, you cannot but stand assured: inferiority, and that, as you will see, rendered palpable by reference made to those objects, which, in the composition of a work of this species, I hope I may now say ought indisputably to be in view; viz. the three qualities, of which, in the third, fourth, and fifth of these letters, so particular an explanation has been given.
To come to particulars. In France, there you may see they not only had, but still have, the Corps de droit Napoleon: the body of law, designed probably to cover, when completed, whatsoever portion of the field of action was intended to be covered by law; and actually comprehending codes more than one, and of the three main branches actually covering two; viz. one, called the Civil or Code Napoleon,—another, called the Penal, together with the corresponding Codes of Procedure; not to speak of the Code de Commerce, and others branching from those two, or coming within the field of a Constitutional Code. Now then—be it as it may, in regard to the individual works—such in this instance was the sort of work—so great the benefit acknowledged to be derived from it—so great the mischief that would have been produced by the restoration of the chaos to which they succeeded,—so it is, that the restored authorities, on their restoration,—notwithstanding the intensity of their desire to obliterate, as far as possible, every trace of the intervening changes,—felt the necessity of abstaining, and abstained accordingly, from the destruction of this the most important of them all:—this vast remaining monument of now extinguished power and energy.
With whatsoever horror the government of Napoleon, considered in a constitutional point of view, may, by so large a proportion of the thinking part of the population of that state, be regarded;—by some, in respect of the damage to the interests of the ruling few—by others, in respect of the injury to the interests of the subject-many,—scarcely should I expect to find a Frenchman, of any party, to whom the reality of the service done by this work, to all interests, would be spoken of as matter of doubt.
The service thus acknowledged to have been rendered, in what then can it be found to consist? in which of the three capital qualities herein above brought to view?
1. Not in intrinsic aptitude for notoriety, as explained in my letter on that subject: not in intrinsic aptitude for notoriety, except, in so far as is necessarily included in the substitution of real to imaginary law: an advantage which belongs to the next head.
2. Not even in completeness: in advance made, as above, towards completeness, yes: but nothing more. No such idea brought to view, as that it would be possible, by any survey taken of the field of thought and action, to trace out the portion which it might be proper for government so to take possession of, as to convert it into the field of law.
3. Not in any degree in justifiedness, as above explained.
That, in respect of intellectual aptitude and active talent, it was not in the power of the draughtsman employed by Napoleon to give those qualities to their respective works, might be too much for a rival to take upon himself to pronounce: those to whom it belongs to judge, may judge. But, that the necessary political power, and consequently the will, so to do, was wanting to them, may without hesitation be affirmed. In every explicit reason, attached to any expression of his will, Napoleon would have seen a chain—a chain put upon his power.
Not even to any arrangements, if any such there were, in the penning of which he had no other end in view than the furtherance of the universal interest, would he have suffered reasons to be held up to view. Why? Because, if introduced into any one part of the whole body of law, the operation of giving reasons would naturally have been looked for, in the instance of every other: but, in the instance of no part of any body of law, in and by which a sacrifice is purposely made of the universal interest to the particular interest of the ruling one, or to that of the ruling few, can any appropriate and adequate body of reasons be found—any body of reasons that,—if not of and in itself,—at any rate by the observations it would call forth, would not in effect counteract the design that gave it birth.
To the ruling power, in every government but such as yours, every application thus made of the faculty of reasoning is therefore, in the very nature of the case, an object of horror. It is, and will ever be so, in every pure monarchy: it is, and ever will be so, in every aristocracy: it is so in this government, which, in substance and effect, is become a compound of monarchy and aristocracy: of monarchy and aristocracy, with a thin coat of democracy remaining on the surface, sufficient for the delusion, but not sufficient for the protection, of the people.
You have been seeing what everybody has seen—what the Cromwell of France actually did for France. Behold now what, if life had been long enough, the Cromwell of England would have done for England:—
In a conversation with Ludlow, Cromwell said, “That it was his intention to contribute the utmost of his endeavours to make a thorow reformation of the clergy and law: but,” said he, “the sons of Zeruiah are yet too strong for us: and we cannot mention the reformation of the law, but they presently cry out, we design to destroy propriety: whereas the law, as it is now constituted, serves only to maintain the lawyers, and to encourage the rich to oppress the poor; affirming that Mr. Coke, then Justice in Ireland, by proceeding in a summary and expeditious way, determined more causes in a week than Westminster-Hall in a year; saying farther, that Ireland was as a clean paper in that particular, and capable of being governed by such laws as should be found most agreeable to justice; which may be so impartially administered as to be a good precedent even to England itself: where, when they once perceive propriety preserved at an easy and cheap rate in Ireland, they will never permit themselves to be so cheated and abused as now they are.”*
Behold what was said in his day by Cromwell! In my eyes, it ranks that wonderful man higher than anything else I ever read of him:—it will not lower him in yours.
As to the clergy, in your happy country the reformation has already been effected. Remains as and for the only class, in the instance of which any the least need of reform still remains—the class of lawyers. That, in your country, in comparison of what it is here, the quantity of abuse issuing from this source is in no small degree inferior, I am fully sensible: but, so long as any the least particle of mischief, though it were but a single one, is perceptible, why it should continue unexcluded,—unless by the exclusion put upon it, a preponderant mass of mischief can be shown to be let in,—remains for him to say, who to the desire, seems to himself to add the power, of rendering to his profession and its interest so acceptable a service.
In this same volume (i. p. 436) the last paragraph is in these words:—“In the meantime the reformation of the law went on but slowly, it being the interest of the lawyers to preserve the lives, liberties, and estates of the whole nation in their own hands. So that upon the debate [on the subject] of registring deeds in each county, for want of which, within a certain time fixed after the sale, such sales should be void, and being so registred, that land should not be subject to any incumbrance; this word incumbrance was so managed by the lawyers, that it took up three months’ time before it could be ascertained by the committee.”
Thus, by the particular and sinister interest of the lawyers, was the reformation of the law obstructed. From the same honest pen, behold how, and by the force of what sinister interests, so desirable and admirable an enterprise was soon afterwards finally quashed (ii. 717:)—“The Parliament, on their part, being sensible of their danger” (viz. from the army: this was the latter end of 1659,) “were not wholly negligent of the means to prevent it: though I cannot say they gave no advantages to the faction of the army, by disgusting the sectarian party, and falling in with the corrupt interests of the lawyers and clergy, wherein the army did not fail to outbid them when they saw their time.”
The provocation given by the honest lawyer (I mean Chief-Justice Coke—not the rapacious pedant, Sir Edward—but one whose conduct formed so perfect a contrast to his,)—the provocation—I say the provocation, given by this honest lawyer to his brethren of the profession—being thus great, you will not wonder when you find it productive of an adequate resentment. From the same pen hear an account of this reformist’s end (ibid. iii. 75:)—“An order being made, that the Chief-Justice Coke and Mr. Peters should die on the same day, they were carried on two sledds to the place appointed for the execution of the sentence that had been pronounced against them, the head of Major-General Harrison being placed on that which carried the Chief-Justice, with the face uncovered and directed towards him: which was so far from producing the designed effect, that he not only seemed to be animated with courage from the reflection he might make upon that object, but the people every where expressed their detestation of such usage.” At the place of execution, among other things, he declared, (p. 196) “that he had used the utmost of his endeavours that the practice of the law might be regulated, and that the public justice might be administered with as much expedition and as little expense as possible; and that he had suffered a more than ordinary persecution from those of his own profession on that account.”
Thus far honest Ludlow. Beholding what, in England, not only our unambiguously true commonwealth’s men, but even our Cromwell would have done,—you have beheld the ends which he would have had in view in doing it. But if, in the conception formed by him concerning what would eventually take place in England, he was correct,—you will see how different a sort of thing the spirit of an Englishman was in those days from what it is at present. Supposing substantial justice established in Ireland, the English of those days would no longer (he concludes) continue to permit themselves to be so “cheated and abused by the lawyers,” as they then were. No: not if a hand such as his—(for to representative government Cromwell was not, like Napoleon, an enemy, but a friend)—No:—not if a hand such as Cromwell’s had remained to do its part, towards freeing them from that bondage. But now that, between the S—s, the E—s, and the W—s,—between those who rule by fraud and those who rule by force,—the contract has been completed, the connexion is indissoluble. The spirit which in those days animated the English is no more. We are content to be “cheated:”—we are content to be “abused:”—all security is fled from us. I, for example, who am writing this to you, I am at this moment in my workshop; to-morrow I may be in a dungeon: not only friends and books, but pen and ink, kept from me—my small remnant of existence rendered at once a blank and a burthen to me,—lest these my labours, which here are useless, should elsewhere be of use. Yes: all security has fled from us: and not only the security itself, but all regard for it.
No tyranny, under which we are not prepared to crouch, so long as in England, under the —,* —as at Rome, under the Cæsars,—the forms of the constitution under which it is exercised are, some of them, preserved: so long as the selfish idlers, by whom we are scorned and pillaged, condescend to style themselves our — —,—we care not how gross nor how notorious the falsehood is, which in that denomination is involved.
Now, suppose that, at this advanced period,—at the presentation of anybody, authority were given in your country,—and that with the happiest success,—to a complete body of laws; such as,—according to the character ascribed by the effrontery of lawyers to the reigning mass of pernicious absurdity,—has, by the testimony of experience, been proved to be the very “perfection of reason.” By that character would it in this country stand recommended to the ruling powers? No:—the more thoroughly would they have been convinced of its having an undeniable title to that same character, the more cordially would they abhor it: the more intensely, according to the humour of the moment, would they either dread or scorn it.
In a general point of view, you have seen, my friends, the state which the rule of action under which you live is in, at present: in the like point of view, you have seen the form which it is proposed to give to it.
Turn now to your own condition under it. Consider what it is under the law as the law is: consider what it would be under the law, as it is proposed the law should be.
1. In respect of notoriety, at present,—unless here and there a lawyer be an exception,—scarce any part of the rule of universal action correctly known to anybody. 2. In respect of completeness, a vast portion of it—no one can say how vast—a shadow without a substance; the deficiency of real law being, under a fictitious name, and under false pretences, supplied by unconjecturable will, supported by arbitrary power. 3. In respect of justifiedness, i. e. proof of reasonableness, no proof or test, in any quantity or quality, worth mentioning, to be found anywhere: in the only really existing branch of the rule of action, viz. statute law, absolutely none: in the argumentation, mixed up in the imaginary branch, in which, under the name of law, nothing better than matter of conjecture about what is or ought to be law is to be found, here and there indeed a spice of reason: but this in so confused a state, and mixed up with such a dose of absurdity—especially of the technical and antiquated cast—that, in no tolerably adequate degree can any one of the functions,—herein above spoken of as exercisable by a consistent and co-extensive body of reasons, forming an accompaniment to the proposed body of ordinances,—be found performed by it.
Under the system of arbitrary power thus endeavoured to be disguised, observe then, my friends, what your condition is. Under a system of statute law, suppose it complete, as often as, having in contemplation a certain act, it becomes your desire to be assured what, in the event of your doing it or not doing it, will be the treatment you will receive at the hands of the judge—under such a system, on turning to the appropriate part in the books of the law, the information requisite is yours. All plain reading: no guess work: no argumentation: your rule of action—your lot under it—lies before you. Thus might it be—thus ought it to be. As it is, how is it with you? No plain reading: all guess work. On every occasion, how, in the event of your doing or not doing what is in question, the judge will deal by you, is mere matter of conjecture: and, for aiding you in your conjectures, no materials, no documents, have you—within your reach, or at your command.
Such is the state of uncertainty—such, therefore, the insecurity—in which you live: such the imposture, on the fruit of which everything that is dear to you remains at all times dependent.
Now, suppose a complete body of statute law, as proposed, established; all judicature, carried on under the pretence of judging according to common law, excluded: suppose this, and note well the difference. Suppose not only the original scribe ill-qualified, but even the censors and correctors of his draught, all of them, worse qualified than in the nature of the case your legislators can be,—still would your condition be a state of certainty and security, in comparison of what it is at present. Throughout the whole field of action you would have a real, and no longer any imaginary, standard of reference: throughout would your actions have a real, and no longer a mere imaginary rule.
Under a complete system of statute law, supposing it ever so bad, thus improved would be your condition, in comparison of what it is at present.
But, supposing this offer accepted, the body of laws, is it then in any danger of being thus bad?
To the purpose of security against badness in every shape, instead of being the original and principal part of it the work of foreigners, executed in other times,—it will be, the whole of it, the work of your own ordinary servants, executed under your own eyes. Of this work, whatever there is that has difficulty in it, or requires labour, will have been ready roughed out to their hands, by this your supernumerary servant: for each and every distinguishable portion of it the reasons will be before them: on the whole, and each particular part,—ordinances and reasons taken together,—their province will be to decide: to take whatsoever parts of it it seems good to them to take; to reject whatever parts of it it seems good to them not to take: to insert into it whatsoever matter it seems good to them to insert.
Suppose the whole of it disapproved, and accordingly rejected? You are but where you were. You have everything to hope—you have nothing to be apprehensive of.
Suppose it approved and established, behold the fruits and consequences. For a rule of action, instead of a rule made by foreign hands, you will have one—as large a part as you please—made, all of it improved and finished, by the hands of your own agents, under your own eyes. Instead of a shapeless and boundless mass of argumentation, you will have a compact and orderly body of law; instead of spurious matter under the name of law, you will have genuine and real law. In a word, instead of a boundless library, and that an inaccessible one,—you will have, for constant use, a few sheets; for incidental consultation, a few volumes:—instead of uncertainty, you will have certainty,—instead of insecurity, security and inward peace. On this great occasion, in this your proffered servant, what confidence will you have reposed? None whatever. In the already commissioned servants of your choice, in those in whom you are accustomed to repose it—in those alone, on this occasion as on all others, will your confidence have been reposed.
Do you still hesitate and look for a precedent? So far as concerns the exclusion of common law, you have one already in your own acts.
You have your constitutional law: you have that branch of it, in and by which are brought to view the powers exercised, with the accompanying and correspondent obligations, submitted to, by the several official persons, of whom, from time to time, the governments of your several States are composed; together with the modes, in which the several official situations, occupied by these several individuals, are filled and emptied. You have that branch of it, which regards the powers and obligations of those official persons, by whom the affairs common to all those States are conducted. To the value of this constitutional law of yours, you are none of you insensible. You hug it to your hearts, as the main source of, and security for, whatsoever you enjoy. Well then: statute law—real law—such is the state, which this branch of your rule of action is in, every tittle of it. Think, now, how it would be with you, if this too were in the state of common law;—of common law, spun,—all of it hitherto, and upon each occasion more and more to be spun on in future,—out of our common law,—as are, at present, the penal and the civil branches? Of the whole body of the laws—of the three branches, into which it is divisible—having thus, in the state of a compact and regular structure, this one,—how much longer will you endure to see every other in the state of a boundless and ever-increasing chaos?
Bad enough is it, in any country, to any sort of people, on each occasion, to have to hunt for the rule of action, in the breath of no one knows what individual, with or without a lawyer’s gown upon his back: an individual of whom thus much only is known, viz. that, even if he had—which he never can have—the inclination,—he would not have the power—he would not have the means—the means in any shape—to make it fit for use.
But in your land of freedom and good government—to you and your legislators, freely deputed agents and servants of a free and self-governed people—thus to be perpetually on the hunt for law—thus to have to rake for it in the very sink of corruption—thus blindly to keep on importing a succession of deaf and dumb matter from a country of slaves—what is this but treason against your constitution?
Yes, my friends, if you love one another—if you love each one of you his own security—shut your ports against our common law, as you would shut them against the plague. Leave us to be ruled—us who love to be thus ruled, leave us to be ruled—by that tissue of imposture: leave us to be ruled, by our gang of self-appointed— —: by our lawyer-ridden, by our priest-ridden,— —: leave us to be ruled, by those— —who never cease to call upon us to rally round our— —,—that poisoned and poisonous— —, by the name of which they have made us slaves.
No: never, never let slip out of your mind this lesson—wheresoever common law is harboured, security is excluded.
The yoke of English monarchy—the yoke of English aristocracy—the yoke of English prelacy—all these galling yokes—all these mutually interwoven and now foreign yokes—you have happily shaken off. Remains the yoke of the English Eithersides, exalted into judges: the common law—that tissue of imposture, to which you still continue to yield your necks,—to be pinched and galled, under the hands of one class among you, for whom, while they are comforted, all others are tormented. Day by day it continues,—and, so long as you continue to crouch under it, will continue,—to be more and more bulky—more and more afflictive—the pressure of this yoke. Will you repel—will you suffer to be repelled—the hand that offers—the only hand that ever did offer—to relieve you from it?
Taking the whole of the field together, either the conception formed of it by this your proffered helper is more clear, correct, and complete, than any that can have been formed in relation to it by any one of you,—or his time, to the amount of above half a century, will have been very unprosperously, very unprofitably, expended. But, this expenditure once made,—of his conceptions whatsoever, in regard to each part of that same field, may be the clearness, the correctness, the completeness,—by your conceptions, your position considered—by yours, on a great many points, at the first glance, will his of course be exceeded: sooner or later, so will it be of course throughout:—in the career of improvement, you will each of you begin at the point at which he ended.
Not that, at the end of any length of time, there must of necessity be, in every part, room and demand for change; for, in any instance, suppose that which is best once discovered, and the nature of the case not changed by time, no room for any thing better is any longer left. But as, on the one hand, whensoever you adopt a proposed change, you will, I am confident, have some better reason for doing so than that it is a change; so, on the other hand, whensoever you reject a proposed change, if so it be that the change affords a promise of improvement, much more if of reform,—if, rejecting the change, you keep to what is established, you will have some better reason for keeping to it than that it is established: some better reason than the wisdom of our ancestors: that wisdom which, being interpreted, is neither more nor less than the weakness of the cradle: that wisdom, the worship of which is so readily and extensively joined in by fools and knaves. Yes: if peradventure so it should happen, that, after having been sanctioned by your representatives, any ordinance, originally submitted to their consideration, by this your proffered helper, shall continue to stand approved,—the approbation, he trusts, will have for its cause the goodness of the reasons in which that ordinance found its support, not the earliness of the age in which he lived.
The effectual point is—that, at the hand of your representatives, the plan, the form, the outline of the work, should find acceptance. Among its objects is,—and, if accepted, among its effects will be,—the affording to them, and through them to you all, my friends, the greatest possible facility, for giving establishment and thence effect, to whatsoever, to them, and thence to the majority of yourselves, shall, on each occasion, and from time to time, seem best. Yes: in this one frame, matters,—of a nature the most opposite, to that which, on each occasion, will to me your workman, have seemed best,—may, according to the successive suggestions of maturer reflection, and of increased experience, by the light of nearer and closer observation, be inserted: what I would punish, they, and through them you, may leave free, or even reward: what I would reward, they, and through them you, may leave unrewarded, or even punish. Yes: by any acceptance given to my work, your powers, so far from being narrowed, will be enlarged. In the reasons, and the principles on which they are grounded, you will behold at all times the inducements which led to the proposed ordinances to which they are subjoined: in so far as in your minds those reasons shall have made the same impression as on mine, you, by the hands of your agents, will give acceptance to the ordinances thus suggested;—in the opposite case, striking out what you find inserted, you will either leave the space a blank, or insert whatever else may seem best in the room of it. Power over you, or any of you, I cannot have any—I would not have any:—upon your wills, only through the medium of your understandings can I exercise any the least influence. Yours is the interest, and the only interest, at stake; upon each article of proposed law, yours is the judgment, which in each case will ultimately decide.
Whatsoever portion of the work, if any, may, after due consideration applied to each part, have been ultimately approved,—the matter of it may serve, at any rate for a sort of temporary resting-place, to the minds of your representatives: coming from a pen, which cannot have found any sinister interest to misguide it,—and after a length of reflection, greater than any which can have been bestowed upon it by any one of the greater part at least of your representatives,—whatever risk you will run, by giving it a sort of provisional and temporary acceptance, can surely not be very formidable: especially considering that, in whatsoever regards possessions, the keeping them inviolate will be the leading object which, as I ever have had, so I ever shall have, constantly in view.
Whatever be the opposition made to the preliminary measures thus proposed, one consideration there is that puts in an irresistible claim to notice.
Whoever, speaking of an undertaking of this sort, takes upon himself to say it ought not to be commenced now, should be prepared to show, that it ought never to be commenced at all. By every day of delay, increase will be given—on the one hand to the magnitude of the evil, on the other hand to the difficulty of applying the only remedy.
I. As to the magnitude of the evil. The evil, as you have seen, consists—in the first place in the uncertainty of the rule of action, and thence in the insecurity of those whose fate is disposed of by it. Of this evil, as far as regards statute law, the source lies in its voluminousness and want of compactness: in so far as regards common law, in the same imperfections, existing in a prodigiously greater degree, with the addition of that immensity, by which it is rendered impossible for any man to know whether he has the whole of it, and that indeterminateness, by which it is rendered impossible, as to so much as any one particle of it, to know, whether it is or is not law; whether it is or is not a rule, or part and parcel of a rule, by which the decisions of the judiciary, and with them the fate of those individuals whose case comes before the judiciary, will be determined.
Well then—not to look to fractions of time—where is—where ever can be—the year, in which any one of these sources of evil—voluminousness, uncompactness, immensity, indeterminateness—shall have failed to bring forth its increase.
II. As to the difficulty of applying the remedy.—In a work of this kind, the grand point upon which the difficulty turns is—the having a ground for working upon—an outline, within which the whole field of the subject shall be comprehended; an outline,—and that traced by a hand, of the competency of which, with reference to the sort of work, there not only shall be, but shall be generally known to be, sufficient reason for entertaining a favourable presumption. I say a hand;—observe, a single hand: for, in the first instance, thus produced must every work of the sort in question be, or it can never come into existence.
Now, then, at the present instant, so it does happen that, by a conjuncture of circumstances not very likely to be soon again conjoined, a hand has been brought into view, the whole working time of which—and that already not a short one—has been devoted to the endeavour to render itself, with relation to this same business, a competent one. Suppose, then, the offer from this hand rejected,—others, affording equal promise, are they likely soon to be seen presenting themselves? Surely, to say within what time any one such shall be likely to present itself, will not be a very easy task. This first offer rejected, what prospect of acceptance can, at any future period, present itself to any others of the same complexion? Rejection, in such a case, would it not in effect be tantamount to one or other of two resolutions; viz. either, 1. That the disorder shall continue increasing, so long as the state continues in existence?—or, 2. That the work, whenever executed, shall not be executed in a manner so good, as that in which it might be executed at present?
Whatever be the task in question,—for aptitude as to the execution of it, one security there is, of which the efficiency is indubitable, and that is—a relish—a real liking for the work. Of this qualification at least, whatsoever may be the value of it, in the present instance, there will not be much room to doubt. Suppose it wanting, the labour thus bestowed is an effect without a cause.
Utility, notoriety, completeness, manifested reasonableness—of a body of laws,—endowed with all these attributes, each of them in the highest degree, and operating upon the largest scale,—the existence, supposing it realized, will indeed be a new æra in legislation.
Only at this late period—only at this advanced stage in the career of civilization and mental culture—could so much as the idea of any such work have been brought to view. A sketch of a code of laws, upon a comparatively extensive scale, was brought forward by Lord Bacon, and may be seen in his works. So far from all four, scarcely of any one of these qualities, is any tolerably clear conception to be found in it.
A complete body of law (for the sake of finding for it a single-worded name,—let us, until a better can be found, go to the Greek for one, as botanists do for their flowers, and call it a Pannomion)—a pannomion, then, if you please, furnished with all these desirable qualities—and in that condition established by competent authority—be it but once exemplified, though it be but in the instance of one single State,—sooner or later, where there is any the least spark of freedom, a man will not for very shame venture, in the same field, to produce a work to which these qualities—every one or even any one of them—are wanting. At present, works thus unworthy of a moral and intellectual agent are produced without shame, because nobody is ashamed of doing that which is done by everybody. Be the sort of work what it may, so long as nothing of the sort has ever been produced, the impossibility of producing any such thing will without scruple be asserted: asserted,—and, the more vehement the assertion, the more profound the wisdom, the reputation of which will be claimed upon the strength of it.
Thus would the matter stand at present: such would be the reception given in the first instance to a work of this kind. Suppose it an all-perfect one, such would be the reception given to it, by those whose interests, or interest-begotten prejudices, would be thwarted by it:—given to it, till, after having received somewhere else the touch of the sceptre, it had stood for a while the test of experience.
Let but an exemplification, however, once appear—an exemplification, though it be but one—down goes the pretended impossibility; down the impossibility, and with it that reputation of wisdom, which has for its foundation the mixture of stupidity and arrogance.
In this way it is—that, by the influence of understanding upon understanding—by the force exercised by reason upon reasonable minds—let but one of your twenty states give acceptance to a body of laws endowed with all these qualities,—by that one, sooner or later, will it be forced upon the others—forced upon them all, though by the gentlest of all pressures.
In America thus will reason spread her conquests. As for that quarter of the world, from which shame is banished—in which, in the name of Christ, the subsistence of the subject many is, with such indefatigable devotion, made a constant sacrifice to the luxury of the ruling few—in which all men are governed, by those who, feeling themselves, are determined to keep themselves, their enemies;—in which that which calls itself government is but a system of regulated pillage;—in that quarter of the world, by no such Utopian conquest, will its tranquillity, and that sort of order which calls itself good order, be disturbed.
On the ground of constitutional law, the system of law you have already—you, who on that ground have so nobly shaken off the yoke of English law—the system you have already, is, as to all essentials, a model for all nations. Accept, then, my services, so shall it be on the ground of penal law, so shall it be on the ground of civil law: accept my services, at one lift you shall ease your necks of that degrading yoke. Without parliamentary reform, Britain cannot,—without revolution or civil war, no other monarchy can,—take for a model the essentials of your constitutional law: but, on the ground of penal law, and to no inconsiderable extent, even on the ground of civil law, it might—and that without change in any part of the constitutional branch,—be made use of as a model anywhere: in Spain, in Russia, in Morocco. Hence it was—and without any thought or need of betraying him into any act of self-denying beneficence—(for my views, of the contagious influence of reason in the character of a precedent, were not at that time so clear as they have become since,)—hence it was, that these my services were offered to the Alexander of these days.
Yes, my friends—these labours of mine—labours which of themselves are nothing—dreams of an obscure individual—let them but be accepted by you—you shall be a people of conquerors. Conquerors, and with what arms?—with the sword? No: but with the pen. By what means?—violence and destruction? No: but reason and beneficence. As this your dominion spreads,—not tears and curses, but smiles and blessings, will attend your conquest in its course. Where the fear of his sword ends, there ends the empire of the military conqueror. To the conquest to which you are here invited, no ultimate limits can be assigned other than those which bound the habitable globe.
To force new laws upon a reluctant and abhorring people, is—in addition to unpunishable depredation—the object and effect of vulgar conquest: to behold your laws not only accepted but sought after—sought after by an admiring people—will be yours.
To those conquests, of which slaughter is the instrument, and plunder the fruit,—the most brutal among barbarians have shown themselves not incompetent. By the best instructed minds alone can any such conquest be attained, as that to which you are here invited.
“Stranger!” say you, “why thus pressing?—pressing, and for labour without hire?”
Friends (say I) your comfort would be mine. Your conquests—the conquests I have thus been planning for you—these indeed I cannot live to see. But of your comfort—your internal comfort—the increase of comfort I have been speaking of—of this scene, to the eye of a sanguine and self-flattering imagination, a sort of Pisgah view is not impossible. My last hour cannot be far distant: this is the preparation I am making for it: by prospects such as these, if by anything, will it be sweetened.
To the Almighty I must confess I know not how to render myself anything better than an “unprofitable servant:” as to what concerns my fellow-men, I am not without hope.
P. S.—22dJuly 1817.
What follows is an afterthought,—and, had it occurred in time, might with more propriety perhaps have been addressed to the several situations, of your governors and your other official servants, than to yours. Of such of my works, as, according to my recollection, had ever been in print, a list is subjoined to the above-mentioned “Papers relative to Codification and Public Instruction,” a copy of which has been sent, as above, to the governor of each State. Taking in hand an almost forgotten portion of the earliest of those of my works that were published in French—works, no one of which has ever yet seen the light in English,—I find in the first of its three volumes, an Essay in 227 8vo. pages, intituled, “Vue Générale d’un corps complet de Legislation,”—General View of a complete body of proposed Law,—published so long ago as 1802,—known more or less in every country of Europe,—Russia, where it has received two translations—Russia, and even Spain itself, not excepted,—never, in the language which gave it birth has it yet seen the light. Among those within whose field of study a work on this subject is included,—so small has been the number of those to whom it would not be sufficiently intelligible in French,—that by no bookseller has it been found worth while to call for an edition of it in English. In America, however, what strikes me is—that, in any State, if any such there be, in which this my offer shall have found acceptance,—a translation, of this part at least, for the use of the legislature of that State, might form a not unuseful prelude,—or, in case of death, a succedaneum,—to the work, which, in the case supposed, I should take in hand.
Farewell at length, my friends!—Judge, whether if employed by you, or for you, I should ever fail of being, your affectionate and faithful servant,
P. S.—26thAugust 1817.
Though without the permission or privity of my friend,—the facts not having anything of secresy in them, nor anything but what does honour to all parties,—I trust I am not misusing his confidence, in giving in English an extract from a private letter of his to myself, dated Geneva, the 12th instant:—
“News about the Code.—August 9th, Third meeting of the commissioners. Question—to adopt, or not, the bases of the plan I had proposed: the bases merely; without notice taken as yet of the details: that is to say, the great division into general titles, private offences, public offences: proceeding then with the definition of each offence, the exposition of the terms of the definition, the punishments, the causes of aggravation, with the corresponding extra punishments, the causes of extenuation, with the corresponding reductions in the punishments. Setting out from the French penal code, under which we have been living these twenty years,—understand that our commission contains, amongst other members, three judges, and two advocates, all practised in these French forms; none of them young—none of them to whom the study of a new code could, naturally speaking, be a very palatable one. Think of this, and then think, whether it could be altogether without apprehension that I had been looking for the result of this meeting. A month had been taken for their examining, each by himself, the general plan, together with divers articles, which, to serve as examples, I had subjoined to it. The meeting immediately preceding the one in question had, on my part, been employed throughout in stating reasons, and answering objections: and, when it broke up, I was not without my misgivings about the sort of impression that had been made. Well:—the next day but one, viz. yesterday, the plan was adopted:—adopted unanimously—and myself invited to pursue it.” (Vide p. 479.)
President Madison to Jeremy Bentham. Washington, May 8th 1816.
Albert Gallatin, then Minister Plenipotentiary from the American United States, for the signature of the treaty of Peace between that Commonwealth and the Kingdom of Great Britain and Ireland, to Simon Snyder, Governor of Pennsylvania. London, 18th June 1814.
Simon Snyder, Governor of Pennsylvania, to David Meade Randolph, Williamsburgh, Virginia, written on the subject of the above Letter, and designed for transmission to Jeremy Bentham. Harrisburg, 30th May 1816.
“Governor’s Message to the Senate and House of Representatives of the Commonwealth of Pennsylvania. Harrisburg, December 8th 1816. James Peacock, printer.”
[* ]Vide “P.S. 26th August 1817,” at the end of Letter VIII.—Ed.
[* ]As if from a rubbish-cart, a continually increasing and ever shapeless mass of law is, from time to time, shot down upon the heads of the people: and out of this rubbish, and at his peril, is each man left to pick out what belongs to him. Thus, in pouring forth law, does the government, as it is written, “rain down snares.”
[† ]Two: as in case of correlative situations: such as those of husband and wife, master and servant. Add to these occasionally, other situations incidentally connected with the principal ones.
[* ]In a body of law, of which, it being in its fabric reasonable, the reasonableness is manifested by a correspondent and perpetual accompaniment of reasons, these reasons being deduced from the universally prevalent and universally recognised principles of human nature, viz. human feelings, interests, desires, and motives, will of themselves help to lodge, and serve to keep, in the mind, those portions of the matter of law, of which the main-text will require to be composed.—See Letter V. Of Justifiedness, &c.
[† ]Of the distinction between Main-Text and Expository-Matter—and of the mode in which, by omission of the Expository-Matter, a sort of abridgment might be made,—take, upon a plan as compressed as possible, the following examples:—
[‡ ]See letter V. Of Justifiedness, as applied to a body of Law.
[* ]1. If there be but one report book in question, the reputation of the reporter not positively high in the scale of accuracy.
[* ]See Chrestomathia, Part II. Appendix, No. V. Table V.
[† ]With the contents of this note let no eye trouble itself, to which the matter of law in all its forms, as well as the tactical branch of the art and science of logic, is not already familiar. § I.
Political Scheme of Division.
Logical Scheme of Division.
Relation between the Political and the Logical Schemes of Division.
In and by each of these two above-mentioned schemes of division, the whole field of law,—and for that purpose the whole field of thought and action,—has been surveyed, and subjected to a mode of division, which, in the instance of the logical scheme at least, is exhaustive.
In so far as it is obligative, imperative, coercive, of every portion of law the fruit is evil: the enactment of the law is an infringement upon natural liberty: and, of every such infringement, in a quantity more or less considerable, pain or uneasiness is apt to be the result. Under the principle of utility,—or say, of regard for the universal interest,—in this instance, as in all others, to justify the production of evil, it is necessary that in some shape or other, good be produced, and in quantity such as to make up for and outweigh the evil. On this ground alone in any instance can any demand have place, for the addition of fresh obligative matter to the already existing stock.
To scrutinize,—for the purpose of proving, disproving, or illustrating,—the truth of the above position, is an exercise which, as it might seem, might be not without its use—to the student in legislation, or to the student in general logic.
To perform any such exercise, an exertion altogether necessary will be, that, whatsoever it be, which shall be requisite to overcome the repugnance, which, especially in a field in which so much bad produce has been already raised, attaches itself to the use of new appellatives: for, unhappily, in so far as what is true and useful is at the same time new, at no less price can useful truth, in any considerable quantity, be taught or learnt. Correspondent throughout are the state of men’s notions, and the state of their language: all language is originally incorrect: and by language which is incorrect, in so far as it is so, no correct ideas can be either communicated to, or entertained and anchored in, the mind. Of every man,—in proportion as he acts in pursuance of any such resolution as that which we see sometimes taken, viz. never to give acceptance to new names—the mind will continue replete with mischievous error and nonsense, while other minds are clearing themselves of those incumbrances, and stocking themselves with the opposite treasures. Of a word originally innoxious, seldom has a more pernicious abuse been made than has been made of the word purity: say at any rate as applied to language; not to speak of it as applied to morals.
[* ]Plan of Parliamentary Reform. London 1817. Introduction, § 18.
[* ]Ludlow’s Memoirs, i. 319; i. 430; ib. iii. 75. Coke’s Execution, ib. ii. 717.
[* ]These blanks have been left by the printer. [Note to 1st edition.]