Front Page Titles (by Subject) No. IX.: Jeremy Bentham to James Madison, late President of the American United States. - The Works of Jeremy Bentham, vol. 4
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No. IX.: Jeremy Bentham to James Madison, late President of the 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 to James Madison, late President of the American United States.
Length of intervals considered, our correspondence has been better suited to an antediluvian life, than to one which is so near its close as mine is.* I mention this—not in the way of reproach to yourself, from whom at no time, to such an address as mine, was any answer at all matter of debt, but purely in the way of regret on my own account. Two works of mine—not to mention a number of others begun, continued, or ended,—two works in particular—one, a continuation of Chrestomathia—the other, on Parliamentary Reform—both of them calling irresistibly for dispatch—will help to plead my excuse.
Your letter announced an approaching present: a present of appropriate books:—some unknown accident has yet deprived me of it. Since then, I have had to return, as I did with all due respect and gratitude—to return as soon as received, and without staying so much as to look at it, the present of an emperor. Come when it will, I shall not return yours.
The emperor’s would have been of no use to me. What the pearl was to the cock, such the diamond would have been to me. Coupled with those declarations, of the sincerity of which it affords an additional assurance, and with that testimony, the weight of which no part of the civilized world can help recognizing, the bare announcement of yours confers on me a title of honour: a title altogether apposite, and which no herald can tear from me or deface. Of all men in Europe, I am then, in your declared opinion, the man best qualified for the drawing up a complete body of laws. I rejoice to find it so. Why? Because by this means I obtain the fairest chance, which, from any one hand, I could have received, for the being enabled to render to mankind that service, the endeavour to qualify myself for which, has been the great business of my life.
It will find you—this my second letter—in possession of comparative leisure, reposing upon your laurels: your country deprived, for a time at least, of the continuation of your services in that particular shape in future, though it neither is, nor, so long as it exists, will be, deprived either of the fruits of those services, or of the grateful remembrance of them.
In print, if in any shape, will it meet your eye: in the same shape, and at the same time, my first letter once more, and with it that letter of yours by which I was so highly honoured. Apology you will require none: reason makes sure of acceptance at your hands. By this publicity, though no licence for it has been obtained, no confidence is violated: neither does the subject, nor do our relative situations, admit of any demand for secresy. A letter from the President of the American United States—a letter from such a quarter, and such a letter—could no more have been intended to sleep on the shelf, than a ribbon with a star to it, to lie for ever locked up in a wardrobe.
I proceed to business. Speaking of my “thoughts” on the subject of a complete code of laws, “although we cannot avail ourselves of them in the mode best in itself, I do not overlook” (say you) “the prospect that the fruits of your labours may in some other not be lost to us: flattering myself that my silence will have nowise diverted or suspended them, as far as the United States may have a particular interests in them.”
To this surmise, Sir, the result has not proved conformable. To the production of the service—if by that name I may venture to designate it—to the production of the service proffered, the pay required in advance for the purpose of encouragement was altogether necessary: the cause failing, the effect failed with it:—alacrity, in sufficient quantity, could not be summoned up. From the President of the American United States, a word would have sufficed to command—and for the remainder of his life—in this highest of all temporal fields, the labour of an Englishman—an Englishman of whom,—even in his lifetime, and notwithstanding the prophecy,—in his own country, as well as in other countries beside his own, it has, even in the highest situations, been every now and then said, that his labours in that same field have already been not altogether without their value. Of the one word needed, political propriety, it seems, forbade the utterance: pronounced as the decision has been, by so completely and exclusively competent an authority,—the sentiments of regret, of which it could not but be productive, have had for their accompaniment no others than those of respect and acquiescence.
From a quarter, to which it was addressed without being exposed to the same causes of rejection, a subsequent offer of the same kind has been more fortunate. The same paper which conveys to you this address, will likewise convey to you the return made for a letter of mine to the governor of Pennsylvania:—made, in the first instance, by a letter from Mr. Snyder, governor of that State, and afterwards by a communication made by him of my offer to the legislature of that same State: both preceded by that letter of Mr. Gallatin, to which I can not but have been in great measure, if not altogether, indebted for so flattering a result.
Such is the state of things, in which I proceed to confess to you the consideration, which has given birth to the liberty I am now taking in addressing to you, in this public manner, this fresh testimony of my respect. It is the desire of relieving the proposed undertaking, if it be in my power, from the force of those objections, which it finds opposed to it by the authority of your name: and which, bearing upon it from such a height, have, notwithstanding the softness of the language in which they are clothed, been felt acting against it with so formidable a pressure.
Before I state the objections themselves, permit me to make what advantage I can of the circumstance of time.
The time, at which they presented themselves to your view, was a time, at which the business of that high and most laborious office of yours was pressing with all its weight upon your mind. In that state of things my wonder is—how you could have found any consideration at all to bestow—to bestow upon an offer, the subject of which,—coming as it did in competition with the duties necessarily appertaining to that office, yet in its extent outstretching them all,—could not assuredly be said to have any obligatory claim on your attention,—rather than that the result of the quantity of attention, which you did find means to bestow upon it, was such as not to put at once a negative upon all ulterior consideration. Under these circumstances, nothing forbids my hope, that this appeal from Cæsar to Cæsar—from Cæsar unprovided, to the same Cæsar provided, with sufficient time for consideration, as well as means of information—will find the door completely open to it.
Under these circumstances, no wonder if, to a hasty glance, the extent and apparent difficulty of the undertaking being considered, the “practicability” of it should have presented itself to your mind as affording “room for doubt.”
Three distinguishable circumstances belonging to it are accordingly mentioned by you in that view, viz. on the one hand, the extent proposed to be given to the work: on the other hand, the scantiness of the quantity of “space,” and the quantity of “time,” supposed to be looked to by me, as sufficient for the execution of it. “The only room for doubt,” say you, “would be as to its practicability, notwithstanding your peculiar advantages for it, within a space and a time such as appear to have been contemplated.”
Postponing for a moment what it appears to me you had in view, in the use made of the word extent—on the subject of time, on recurrence to my letter (page 465,) I hope you will not find me speaking otherwise than with that degree of undeterminateness, the opposite to which would have been so unsuitable to the nature of an undertaking of this sort.
In speaking of space, if I do not misconceive you, what you had in view was, principally quantity of matter; space only as corresponding to the quantity of matter: viz. such portion of space as will be necessary, for the containing of such quantity of matter as shall have been found necessary.
Now, as to both these circumstances, no sooner do they come to be looked into with any degree of steadiness, than their incapacity of affording any material objection to the proposed undertaking will, I cannot but flatter myself, be found so clear and complete, that they may be laid out of the case almost at the first word:—
1. With regard to time,—supposing either the work to be useless, or the execution of it impracticable, all question regarding time is useless: supposing the work not to be useless, nor the execution of it impracticable, the answer afforded to the objection by the trivial adage, better late than never, will, I cannot but flatter myself, be found quite sufficient for the removal of it.
2. With regard to quantity of matter,—if, in the case of a work of the sort in question, the magnitude of this quantity be not regarded as capable of being productive of inconvenience, it cannot be capable of operating as an objection to any individual work of that same sort. If it be regarded as capable of being productive of inconvenience, surely the magnitude of this inconvenience will be more likely to be reduced, by a work having among its chief objects the reduction of it, than in a state of things in which no such endeavour has been, or will be, used.
For the expedients employed by me for this reduction, I will beg leave to refer you to Letter III. of those letters of mine to the citizens of your United States, which will be in circulation at the same time with this. These expedients, are they, any oen of them, actually in use at present? In any of them, is there anything that is either useless or impracticable? To no one of these questions can I frame to myself any answer from you other than a favourable one.
Forget not here, Sir, let me entreat you, that from the not being provided with any determinate set of words for the expression of it, that portion of the rule of action which is in the state of common law, presses—not with the less weight, but with the more weight—presses, if not actually upon the minds, upon the condition, of those whose lot depends upon it. By giving to it a set of determinate words—that is, by converting it into statute law,—that which before was infinite is rendered finite. [See my first Letter, p. 460.]
These comparatively light considerations being thus disposed of, I proceed in my humble endeavour to solve that doubt of yours which, space and time out of the question, respects the question of “practicability” absolutely considered.
“With the best plan for converting the common law into a written law, the evil,” you say, “cannot be more than partially cured.” What, on this occasion, was the evil in view, I do not find mentioned in express terms: but from the last preceding paragraph, what I should expect to find it to have been is—“the extent” of “the unwritten law.” “With respect to the unwritten law,” you say, “it may not be improper to observe, that the extent of it has not been a little abridged in this country by successive events:” whereupon you proceed to specify these events or some of them: viz.—the “emigration”—the passing of the “colonial statutes”—and “the revolution.”
Having thus explained what in your conception the evil was, and, in relation to this evil observed—what at the moment seemed to you to be the case—viz. that it “cannot be more than partially cured,”—you go on and state what, at that same time, presented itself to you as the reason or cause of the supposed impracticability:—“the complex technical terms to be employed in the text necessarily requiring,” you say, “a resort for definition and explanation to the volumes containing that description of law.”
In this latter observation, considered in itself, I see nothing to controvert. But in the character of an argument, in which, if I do not misconceive the matter, it was at the moment presenting itself to you,—viz. that of an argument, operating in proof or support of the notion, that “the evil” in question, viz. the evil consisting in the extent occupied by that part of the rule of action which is in the state of common law “cannot be more than partially cured,”—here of necessity comes my dissent.
“Resort” to them—these volumes? Oh yes: and make the most of them: this is what I myself have at all times done, and, for the particular purpose in question, should of myself be as diligent to do as you could wish to see me. But, on the part of the supposed draughtsman, the necessity of a resort to them once for all, for the purpose of his draught, is one thing: the necessity of preserving them for ever in their present state, as part and parcel of the rule of action, viz. in their present totality, with the continually supervening additions which on the same principle would be necessary, is another. Of the matter of “definition and explanation” to which you thus allude, taken in the aggregate, the mass will be found either adequate to the purpose, or inadequate: in neither case do I see how any bar is opposed by it to the complete cure of the evil in question: to a result so desirable as that of the conversion of that portion of the rule of action which is in the state of common law, into the state of written law.
First suppose it adequate. In that case,—from the volumes in question,—leaving where it stands the immense mass of argumentation,—pick out every particle of this precious matter,—bestow upon it the touch of the legislative sceptre, forbidding all future reference to any one of the volumes from whence it was extracted—this done,—the conversion is effected.
Now, suppose it inadequate. In this inadequacy, on the part of that portion of the rule of action which is in the state of common law,—what is there that should prevent, or so much as obstruct, the supplying of the deficiency by written law? By that same instrument, the affording supplies to all such deficiencies, or supposed deficiencies, as present themselves in the rule of action,—in the rule of action, in which soever of the two states it is found, viz. that of written law or that of common law,—is it not what in your several United States, as in every other government, with more or less success, you are doing every day?
While the paragraphs in question were penning, it was not in the nature of the case, that you should have been bestowing upon the subject any such closeness and continuity of attention, as that which I have been under the necessity of bestowing upon it. At the moment, if I do not misconceive you, the mass of the matter of “definition and explanation,”—afforded by the common law, as exhibited in the volumes in question,—presented itself to your mind, as being actually adequate to the purpose in question: viz. that of affording to the minds in question a clear, correct, and complete conception of the rule of action, meaning of such part of it as corresponded to the “extent” occupied by this same common law: and, not only adequate, but so exclusively adequate, that nothing, that in the shape of written law was likely to be substituted, seemed to afford any sufficient promise of coming up to it in this respect.
But if, for the moment, such, Sir, was really your conception of the matter, I cannot but flatter myself, that, before this my letter has been read through by you, if such be the honour destined for it,—at any rate, if, for a supplement to it, you can prevail upon yourself to read the accompanying letters, which are addressed to the citizens at large of your United States,—that conception will have undergone a change.
The positions which, in this view, I have to submit to you, Sir, are these, viz.—
1. That,—if, taken in themselves, the words of the matters in question were, so far as they went, adequate to the purpose in question,—yet, being as yet but words of common law, they would, by that very circumstance, be effectually prevented from being adequate to the desirable purpose above specified.
2. That, on that same supposition, by the single circumstance of being adopted and employed by the legislature, and by that means converted into written, i. e. statute law, they would be rendered adequate to that same purpose.
3. But that, in truth,—even with reference to that portion of extent, which, in the field of law, the several masses of them respectively occupy,—so it is, that in most, not to say in all instances, they would be found to fail of being thus adequate.
4. That, taking the aggregate of them in its whole extent, and adding to it that portion of the matter of law which is in the state of statute law, the mass, thus composed, would be found to fail altogether of being thus adequate.
5. That, in the nature of the deficiency in question, there is nothing to prevent its receiving such supply as shall be adequate.
6. That,—with the exception of such imperfections as cannot but be the result of human infirmity in general, and of my own infirmities in particular,—I cannot but regard even myself as competent to the affording of such supply: and that in such sort as not to leave any very extensive or urgent demand for amendment.
As to the two first of these six positions,—for the proof of them, I must beg leave to refer you to what may be found under the head of completeness, or all-comprehensiveness, in the fourth of my eight accompanying letters above mentioned.
As to the four remaining positions,—in the instance of none of them does the nature of the case, on any such occasion as the present,—within the limits necessary to be prescribed to the present address,—admit of any such complete demonstration, as I cannot but flatter myself with the thoughts of having given in the instance of the two first. Speaking in general, and taking the whole together,—no better proof, I must confess, can I find than this, viz. that, of a survey of more than fifty years continuance, a persuasion of my own to this effect has been the result.
Fortunately for me,—to every practical purpose, if I do not much misconceive the matter, nothing more is necessary than the absence of all demonstration to the contrary. As to the matters in question, viz. the several masses of the matter of definition and explanation, there they are. Such fresh ones as I shall have to present—let them come in competition with the old ones, it will rest with the legislature in question to take its choice: from the possession of this choice there will be something to gain, there cannot be anything to suffer or to lose.
But, though in regard to these same four last positions, the nature of the case, as above, admits not of anything like a complete proof of them,—yet a few observations there are of detail, which, by the direction they may serve to give to a reader’s attention, may at any rate be conducive to that purpose.
Among the subjects presenting a demand for definition and explanation, take for example these six: viz. offences, complex punishments, species of private property, offices, efficient causes of title to property, do. of do. to office:—subjects, in respect of extent, every one of them widely comprehensive;—all of them taken together, not very widely short of being all-comprehensive. For the advantage of employing the current name of a class of objects continually under view, add contracts: contract being one of the most extensively exemplified of the efficient causes of title that bear reference to that species of property, which consists in the right to certain determinate services, at the hand of human agents: say—in the right to the corresponding services.
Clearness, correctness, and completeness—not to mention the subordinate and subservient qualities of conciseness and compactness—in the above-mentioned three articles may be seen, if I mistake not, the properties which, to answer its purpose, a “definition” or “explanation” must be possessed of. These, in the case of any one such object taken by itself: to these,—in the case of the whole aggregate of the objects of this kind contained in a complete body of law,—add consistency, and again completeness, viz. with reference to that whole.
To render clearness itself the more clear, add for the explanation of it the indication of its two distinguishable modes, viz. exemption from obscurity, and exemption from ambiguity.
Now, as to the use derivable, with reference to the present purpose, from these same specifications. Taking for the subject of the inquiry the definitions and explanations actually afforded by this same common law,—are they, in a degree approaching to adequate, possessed of these same properties? An averment which I will venture, Sir, to make, and that without any apprehension of your finding much of error in it, is—that the more closely you were to look into the assemblage of them in this view, the further you would find them from being in any such desirable case.
Look at the state of things in which they were respectively penned,—the more closely you look into it, the more thoroughly you will, I think, be convinced—that the endowing them with these qualities, in a degree comparable to that with which they might at present be endowed with them—endowed with them by a single hand, having that object steadily in view—was, at the several points of time at which they were respectively penned, morally impossible.
Let it even be supposed, that, on the part of the several authors, the desire of investing them with these several qualities was constantly present,—still, that any share of appropriate power adequate to the production of the effect was, generally speaking, in their hands, is a position, the contrary of which may without hesitation be asserted. No otherwise than in so far as the same qualities were to be found in the several individual decisions from which they were deduced,—or, to answer the professed purpose, must have been deduced,—could these same qualities be given to the definition and explanation in question: and, the more closely any eye will bring itself to look into those same decisions in this view, the further will it find them to be from being in possession of any one of those same indispensable properties.
From Littleton, down to Hawkins and Comyns, through Coke and Lord Bacon,—from the reign of Edward the Fourth to the reign of George the Second—to go no lower—will any one have to look for the various hands by which those same definitions and explanations were penned. In so many successive ages—all of them, in every branch of art and science bearing relation to the subject, so little advanced in comparison of the present,—in regard to those same three qualities, viz. clearness, correctness, and completeness, all in equal degree, on what reasonable ground can any hope of finding them, in the instance of each one of all those several writers, be entertained? or of finding in those same individuals, in any such degree, the qualities of consistency and completeness, with reference to the whole field of law, and the whole aggregate of the several definitions and explanations with which it requires to be covered?—of finding all this in all these several individuals, by no one of whom does so much as the idea of any such whole appear to have ever been entertained?
In every other branch of art and science,—on the part of the most advanced of those past ages, think, Sir, of the universally acknowledged inferiority in comparison of the present age. Think whether, to the general rule presented by that thought,—in the arts and sciences belonging to legislation and jurisprudence, there be any circumstance, by which an exception can be presented!
Still, with an eye to the main question, viz. that concerning the “practicability” of effecting, by means of a body of written, alias statute law, a more than “partial cure” of the evil inherent in common, alias unwritten law,—permit me once more to call to view the substance of that paragraph of yours by which the intimation given of the necessity of a resort to the “complex terms” in question “for definition and explanation” is immediately preceded. Of this “unwritten law,” “the extent,” say you, “has been not a little abridged in this country” (meaning that of the United States) by “successive events:” of which events, the examples which you thereupon give are—the “emigration” to America—the penning of the several colonial statutes”—and the “revolution” by which the “colonies” were converted into “independent states.”
True all this: but, to the purpose to which it bears reference—viz. the position representing as matter of “doubt” the “practicability” of the operation in question,—meaning the proposed complete “conversion of the common into a written law,” and thereby, the extirpation of unwritten law,—in what way does it add strength? One glance more, and if I do not deceive myself, the circumstance in question will be found by you to be productive of a contrary effect. Towards the ultimate end in question, such were the advances successively made by so many successive operations. Here, then, to the several amounts in question, has the effect in question been actually produced; the very effect, in relation to which, when taken in its totality, the doubt, as to its “practicability,” had been entertained. Yet, on any one of those occasions, any such general design as that of the complete extirpation of unwritten law, was it ever in view? No, assuredly. But, when it is considered, that, without so much as taking it into contemplation, such advances were thus made towards the accomplishment of this general design,—in this state of things—in the advances thus made—can any ground be really to be found, for doubting of the probability of such accomplishment, only because this same design is actually taken into contemplation, and the whole force of a long-exercised mind applied to it?
All this while, one thing there is, which I am perfectly ready to admit: and that is, that,—merely by continuing to operate without any deviation in that precise course, by operating in which those same advances were made,—true it is, that the complete accomplishment of the desired object would not be practicable. I mean, by continuing to enact statute after statute in the customary form:—in the form customary with us, and thence with you: in the form of a naked ordinance, unaccompanied by any portion of matter in the form of definition and explanation. At no point of time, in any quantity worth regarding, has any such matter been in use to be inserted in any article of written law: such is the fact. As to the reason—if reason be here worth thinking about—at no antecedent point of time had any such matter been in use to be inserted. This in general is man’s reason, in the sense in which reason is put for efficient or final cause: this more particularly is lawyer’s reason. At the very outset, when law was in her cradle, what in this same sense was the reason? Even this,—that, in every instance, in those days, (not to speak of the present,) laws were the result of narrow and partial views—rude produce, huddled together upon the spur of the occasion. No superintending mind, either actually all-comprehensive—or so much as endeavouring, or even pretending, to be all-comprehensive,—employed upon the work.
But, by this circumstance, viz. that in the form of statute law no such matter of definition and explanation hath as yet been in use to be given, is the demand for it rendered the less real, or the less urgent? Not it indeed. Assuredly, Sir, it will not be so in your estimation, if in this respect the view you take of it on the occasion of this my second letter, continues the same as that which you were taking of it while writing your first: in relation to “the complex technical terms to be employed in the text,” your observation is—that these will “be necessarily requiring a resort for definition and explanation.” At this point, for the present purpose, I take the liberty of stopping.—Why? Because, in this observation is of course included the acknowledgment of the existence of a demand—a real, an indispensable demand—for “definition and explanation,”—whatsoever be the source, or the receptacle, looked to, or to be looked to, for the supply.
In conclusion, as to this same point, on which I am happy enough to find my own conception confirmed by yours—viz. that in every body of law there is a class of terms that will be found “necessarily requiring a resort for definition and explanation somewhere,” I will beg leave for the last time to beg your attention to the distinction which it involves.
Of the whole of the intended matter of your laws, suppose the form to be that in which it exists at present, viz. that of a set of ordinances—naked ordinances as above explained—unaccompanied with any number of definitions or explanations. For conception sake, suppose the whole of it actually penned: this whole matter will be composed of a determined assemblage of words. Of these same words, for one cause or another, some—for so we are agreed—will be found to stand in need of definition or explanation; others not. Now then,—due notice taken of the distinction,—on the occasion of it, I will venture to propose a practical rule. Among these same words, be they respectively in other respects what they may—to those which present themselves as standing in need of definition or explanation—for a sort of clothing or appendage to them, give, in each instance, in the very body of your laws, the requisite lot of definition or explanation accordingly: those which present no such need—leave them, as you found them, undefined and unexplained.
To the list of explanation-needing terms, belong unquestionably those which you have mentioned: viz. “the complex technical ones.” But these will not be the only ones: and by real and distinctly ascertained exigency, not by custom alone, would the supply which I should afford be regulated. For examples of this supply, permit me to refer you to that one of those works of mine, to which, in the French dress for which it is indebted to the skill of Mr. Dumont, the honour of your notice has not been altogether wanting; and which, as to this point, has already received adoption at Geneva, as mentioned in the postscript to my above-mentioned letters to your fellow-citizens.
In the meantime,—for examples of the demand without the supply, permit me to refer you back to that page of this letter, (page 511,) in which, in the express character of “subjects presenting a demand for definition and explanation,” half a dozen subjects have been specified. And note, that of these several subjects, the names are names of whole classes: and that, under each of these classes, genera, in a number more or less considerable, would be found comprehended.
As to words not needing definition or explanation, viz. in a book of law,—they will be found to be in general those of which the body of the language is composed: those of which, even for the purpose of legal operation, the precise import is supposed to be sufficiently made known, by the use made of them in ordinary converse. Such, for example, are those, of which the present page, with some of the preceding ones, is composed. Not that between the one class and the other, the nature of the case admits of any permanent line of distinction. Be the word or phrase what it may,—should any serious apprehension present itself, that, while by one person it is understood in the sense intended, by another person it may be understood in a sense not intended, and that in any such sense, any such effect as that of sufferance or loss in any shape, may probably be the result of misconception,—here, in the eyes of a humane and attentive legislator, will be a demand for definition or explanation, or both, as the case may be.
At this rate—I think I hear you saying—may not the demand be infinite?—No, Sir: the demand will not be infinite. Wheresoever, by ordinary good sense, unfurnished with any special and appropriate learning, the supply promises to be afforded—afforded by neighbour to neighbour, by friend to friend—afforded without need of resort to any assembly of legislators, or to any individual man of law—there the supply may be left to be thus afforded: there, if to a book, the resort may be to an ordinary dictionary: and the book of the laws may thus be left unburthened by it.
Having thus applied my endeavours to the removal of those doubts, which my respect for the quarter from which I viewed them coming down upon me had rendered so alarming—applied these my humble endeavours—and now that they are closed, I cannot but flatter myself, not altogether without success—for any further particulars, if necessary, permit me, Sir, to refer you back to my first letter to yourself, and then onwards to those letters of mine on this same subject, which I have ventured to address to the whole body of my wished-for masters—the citizens of your United States. Believe me ever, with the truest respect and gratitude, Sir, your much obliged servant,
[* ]Date of Mr. Bentham’s Letter to Mr. Madison, October 1811.