Front Page Titles (by Subject) PART I.—ARGUMENTS.: POSITIONS, WITH REASONS FOR PROOFS. - The Works of Jeremy Bentham, vol. 4
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PART I.—ARGUMENTS.: POSITIONS, WITH REASONS FOR PROOFS. - 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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POSITIONS, WITH REASONS FOR PROOFS.
In every Political State, the greatest happiness of the greatest number requires, that it be provided with an all-comprehensive body of law. All-comprehensiveness, practicable, and indispensable.
In the political state in question, whatsoever be the effect, which, in pursuance of any regard, entertained, or professed to be entertained, for the greatest happiness of the greatest number, it has been endeavoured to produce, by means of any expression given to the will of any person or persons exercising any of the powers of government,—only in so far as that will has been made known to the individual on whose conduct the production of that effect in each individual instance depends, can existence be given to such effect. If, in the instance of any one such effect, the notification, as above, of the correspondent will, is necessary to the existence of the effect, so is it in the instance of every other such effect. If, in this respect, there be any difference,—by him by whom it is discovered let it be declared.
This is what no man will attempt. Yet are there but too many men, to whom the idea of any such all-comprehensiveness, on the part of the rule of action, is an object of aversion and even abhorrence.
Who are they? A set of corruptionists, and a correspondent set of dupes.
1. First as to corruptionists.
In proportion as, in the whole field of law, a covering composed of real law is wanting,—room is left for different sets of men, to set up, each of them, in the character of law, this or that article of purely fictitious law, framed by them respectively on each occasion, in a shape adapted to whatever particular and sinister purposes they have, on that occasion, set themselves in pursuit of. There are two distinguishable classes of men, to whose sinister purposes every such void space in the body of the law is subservient. One is, the lawyer class: the other is the class of party men in general; and in particular, party leaders. Were any such all-comprehensive code in existence, and executed as it ought to be and might be, seldom would there be any such question as a question of law: never any other question of law than a question concerning the import of this or that portion of the existing text of the really existing law. In the case of the lawyer class, the need which a man has of void spaces in the body of the law, applies to the whole field of law, and every part of it. In the case of the party man, it is to the constitutional branch of the law that the convenience afforded by those void spaces to his purpose more particularly applies. Wherever real law is silent, the course he takes is this:—He sets up an article of imaginary law framed by him for the purpose, and by loud and confident assertion, supported by such analogical arguments as he can contrive to muster up, endeavours to produce, in the minds of his hearers or readers, the belief of a conviction on his part, that this sham law of his own fabricating is so much real law. If he be of the party in power, it is most commonly for the defence of his own party that the pretended law is fabricated: if he be of the party out of power, it is most commonly for the attack of the party in power that the fabrication has place.
Behold, then, in the above two classes of men, the corruptionists—the knaves. To their sinister interest it is, or is believed to be, conducive, that the rule of action should be kept in the completest state of uncertainty and confusion possible.
The dupes are those on whose minds the knaves have succeeded in producing, in relation to this matter, a persuasion which in their own minds has no existence. This is, that the composition of a code thus comprehensive is impossible. Of any attempt to prove the inutility of it, the absurdity would be too palpable. Remains, then, this notion of the pretended impossibility as the sole resource.
The strength of the argument lying in the ignorance and weakness of those to whom it is addressed, no direct mode of combating it with effect does the nature of the case admit of, except by the substituting appropriate knowledge and strength of mind to that ignorance and that weakness.
This not being within the reasonable hope of any man, the only sort of argument that presents any chance or prospect of success is this:—Let the endeavour to produce a code of this all-comprehensive description be employed: if it fails altogether, you are but as you were: so far as it succceds, so far at least you will be the better for it: instead of a counterfeit arrangement, fabricated on the occasion by this or that influential hand for its own particular and sinister purpose, you have a real arrangement; an arrangement, the knowledge of which, whatsoever has been its purpose, has been given, or at any rate may have been given, and given in time, to those whose lot it had taken upon itself to dispose of:—the knowledge of it, and thereby so far the power to conform to it. To give to you, whoever you are, this means of safety, is the endeavour of every public man whose end in view is the greatest happiness of the greatest number. To withhold it from you, is the endeavour of the corruptionist in every one of his shapes: to keep everything that is dear to you in the state of the most perfect insecurity possible. Why? Because in that insecurity he beholds an efficient cause of his own power: by every increase you get to your security, that power of his is lessened. It is because he is so fully conscious of the possibility of such a work, and accordingly so fearful of seeing it executed, that he is so earnest with you to persuade you to regard the accomplishment of it as impossible: to regard success as impossible, and thence every proposal for the endeavour as absurd. Supposing it really impossible, he would be without motive for taking so much pains to make you regard it as such.
The possibility—is it proved—the impossibility disproved—by the fact? Where the fact has place, are men in general satisfied or dissatisfied with it? Ask a citizen of the United States, whether it would be agreeable to him to see his constitutional code done away, and, throughout the whole field of law, party men and lawyers left at liberty to vociferate, upon each occasion, the law is so and so, the law is so and so:—to vociferate thus—as it would be left for them to do, and as they would not fail to do, when the truth is, that, by the very supposition, there is no such thing as any law about the matter. Ask him where the impossibility is, of doing that which, by that same constitutional code, has actually been done.
Well then—if, in the giving a covering of this sort to the whole field of constitutional law, there has been nothing impossible, why should there be in giving a like covering to any other part of the field of law? to the field of distributive, or, as the phrase is, civil law—to the field of penal law—to the field of judicial procedure?
Ask the Spaniard the like question.
Ask either of them—ask even the Englishman—seeing that so many parts of the field of law are actually covered by real law—what is there that should hinder the other parts, any or all of them, from receiving a like covering?
In every other case, the more strenuous a man’s endeavour is to render his work complete, is not the probability of its being rendered so the greater? Is it that the more studiously a man abstains from adding anything to it, the nearer to completeness it will be? Does not a more complete come nearer to an all-comprehensive than a less complete work does?
As to the mode of securing this same property of all-comprehensiveness to the several operations that required to be performed on the several parts of the field of law in the penning of a code, some instructions for this purpose may be seen in Part the Second of the work intituled Chrestomathia.*
In a word, be the occasion what it may, if in specie, the language cannot always be all-comprehensive—say rather all-expressive—yet such in genere it may always be: and, as every individual is contained within its species, so is every species within its genus.
The greatest happiness of the greatest number requires, that such body of law be throughout accompanied by its rationale: an indication of the reasons on which the several arrangements contained in it are grounded. Rationale, though unexampled, indispensable.
Of this Rationale, the uses may be thus enumerated:—
1. To the draughtsman himself, it will serve at once as a guide and as a bridle: as a guide, for directing his understanding and active talent in the right track, by keeping at all times in his view the universal goal or object, towards which, as above, it ought in every part to be directed.
2. As a bridle, by keeping in his mind the remembrance, that, in case of his giving place to any arrangement, for which no sufficient reasons are given, while against it, reasons, suggested by its relation to that same universal end, will be likely to present themselves to other eyes,—he may have a timely view of the condemnation, to which, at the hands of public opinion, he will in such case subject himself: as also, in the opposite case, of the crown of applause and gratitude, which, at the hands of that same universal tribunal, awaits his head.
3. To the subject-citizen, it will serve all along as a key—an instrument of interpretation: of interpretation, for the solution of all such difficulties and doubts, as might otherwise have place, in regard to the import of the terms employed.
4. To the subject-citizen, again, it will serve as a cordial—a source of satisfaction; showing to him, in a point of view not less advantageous than correct, the character of the government under which he lives: showing all along, that it is only as an indispensable means of preponderant benefit to all, that the burthen imposed upon any one is, in any part of it, so imposed.
5. To the subject-citizen, again, it will, taken all together, according to the extent occupied by it in the field of morals and legislation, serve as a code of instruction, moral and intellectual together: applying itself to, and calling into continual exercise, the intellectual faculty; and not merely, as in the case of a code of ordinary structure, applying itself to the will, and operating upon that faculty, by no other means than the irresistible force of a superior will, employed in the way of intimidation or remuneration: intimidation of necessity for the most part: intimidation, with only a small admixture of remuneration, in a comparatively small number of cases, and to a comparatively minute extent.
6. To the judge, in his situation, it will afford the same facility, guidance, satisfaction, and instruction, as to the subject-citizen in his: it will, moreover, in proportion to its clearness, correctness, and completeness, apply to his mouth, to keep him all along from turning aside into the track of corrupt or arbitrary decision—a bridle: an implement, which, in his career, is so necessary. In so far as the course he takes is confined to the track of his duty as thus pointed out, the very bridle will moreover afford him a support: a support against whatever ungrounded accusations and imputations his situation exposes him to.
7. In relation to the legislator, acting as such on the occasion here in question—in relation to the legislator, that is to say, to him who possesses or shares in the power of giving binding force to the work of the draughtsman, as above,—it will render service in all those several shapes, in which it has been thus officiating, in relation to the draughtsman, the subject-citizen, and the judge:—in the several shapes (that is to say) of a guide, a bridle, an instrument of interpretation, a source of satisfaction, and a body of moral and intellectual instruction.
8. To the mouth of the legislator, it will, in all succeeding times, keep applied that sort of bridle, and the only sort which, without the grossest absurdity, could either be attempted to be so applied to that supreme functionary, or by him submitted to. To the body of arrangements, to which it is attached, and to each distinguishable arrangement in particular, it will thus, in proportion to their aptitude respectively, form a sort of anchor, bestowing upon them respectively, at all times, that degree of fixedness, and that alone, which, for the greatest happiness of the greatest number, they ought respectively to have.
In this character, it will form a striking contrast with the only sort of steadiment that has ever yet been applied to them: with that sort of steadiment, which, with such unhappy frequency, it has been customary to apply to them: viz. that which is composed of an ungrounded expression and effusion of arbitrary will: an instrument not more remarkable for its weakness, than for the absurdity and presumption manifested in the construction of it: an attempt, on the part of the legislator, not only when less experienced and less advised, to tyrannize over himself when more experienced and more advised,—but, when rendered by death as deaf and impotent as when alive he was blind, to tyrannize over his enthroned, and vigorous, and hearing, and seeing successors.
9. Under a representative government—the only sort of government which deserves the name—under a representative government, to constituents in the character of electors, it will afford, for judging of the appropriate aptitude of proposed representatives, a test, than which, in so far as, by conduct, under and in relation to the body of the laws, occasion has been afforded for the application of it, none more apt can be afforded by the nature of the case. “On such or such an occasion, when an arrangement to such or such an effect was proposed for confirmation or alteration, what was your vote? what was your speech? when, in support of the arrangement proposed to be altered, there are such and such reasons, what counter reasons did you then offer? what are you able and disposed now to offer?” Such is the scrutiny, to which his conduct while in office might, by the lights in question, be on each occasion subjected.
The greatest happiness of the greatest number requires, that those reasons be such, throughout, as shall show the conduciveness of the several arrangements to the all-comprehensive and only defensible end thus expressed. Rationale, indicates conduciveness to happiness.
Except in so far as they do this, whatsoever portions of discourse are given under the name of reasons, do what is nothing to the purpose: the name of reasons is not with any use or propriety applicable to them. Anything that has no influence on happiness, on what ground can it be said to have any claim to man’s regard? And, on what ground, in the eyes of a common guardian, can any one man’s happiness be shown to have any stronger or less strong claim to regard than any others? If, on the ground of delinquency, in the name of punishment, it be right that any man should be rendered unhappy, it is not that his happiness has less claim to regard than another man’s, but that it is necessary to the greatest happiness of the greatest number, that a portion of the happiness of that one be sacrificed.
Reasons, indicative of this conduciveness, are reasons derived from the principle known by the name of the principle of utility: more expressively say, the greatest-happiness principle. To exhibit these reasons, is to draw up the account between law and happiness: to apply arithmetical calculations to the elements of happiness. Political arithmetic—a name that has by some been given to political economy—is an application, though but a particular and far short of an all-comprehensive one, of arithmetic and its calculations, to happiness and its elements.
To convey a sufficiently clear, correct, and comprehensive conception of what is meant by reason, or a reason, when derived from the principle of utility, and applied to law, a few words of explanation seem indispensable.
The elements of happiness are pleasures and exemptions from pains: individual pleasures, and exemptions from individual pains.
The magnitude—the greatness—of a pleasure, is composed of its intensity and its duration: to obtain it, supposing its intensity represented by a certain number of degrees, you multiply that number by the number expressive of the moments or atoms of time contained in its duration. Suppose two pleasures at the same degree of intensity,—give to the second twice the duration of the first, the second is twice as great as the first.
Just so is it with pains: and thence with exemptions from pains.*
The magnitude of a pleasure, supposing it present, being given,—the value of it, if not present, is diminished by whatever it falls short of being present, even though its certainty be supposed entire. Pleasure itself not being ponderable or measurable, to form an estimate of this diminution, take the general source, and thence representative, of pleasure, viz. money. Take accordingly two sums of the same magnitude, say twenty pounds, the one sum receivable immediately, the other not till at the end of  years from the present time, interest of money being (suppose) at 5 per cent.—the value of the second sum will be but half that of the first; namely, ten pounds: in the same case, therefore, will be the value of two equal pleasures receivable at those several times. Just so is it with pains: and thence with exemptions from pains.
The magnitude of the pleasure derived from the source in question, supposing it present, being given—as also the value to which it is reduced by distance as above—the value of it is subjected to a further reduction by whatever it is deficient in, in respect of certainty: suppose, then, that at the time for its being received, as above, the probability, instead of being as infinity to one, i. e. at a certainty, is but as 1 to 2. On this supposition, the value of it is subjected to such further reduction, as leaves it no more than the half of that which it would have been, had the receipt of it at that remote period been regarded as certain: instead of twenty pounds, as by the first supposition, and ten pounds, as by the second supposition, it will now be no more than five pounds. Just so is it with pains, and with exemption from pains.
So much as to diminution of value by remoteness and uncertainty: now as to increase by extent.
Take any two sources of pleasure: the one productive of pleasure to one person and no more: the other productive of pleasure, the same in magnitude and value, to two other persons and no more. In the eyes of a common trustee, intrusted with the interests of all three, and acting according to his trust, the value of the second source of pleasure will be just twice as great as that of the first. As a pleasure comes to be experienced by a greater and greater number of persons in a community, it extends over a larger portion of that same community: in a political community, the extent of a pleasure is as the number of the persons by whom it is experienced.
Just so it is with pains and exemptions from pains.
Instead of pleasure itself, to show how an estimate might be formed, of the diminution its value is subjected to by diminution of propinquity and certainty, it became necessary to substitute to pleasure itself some external object known by experience to be of the number of its sources or say its causes: for example, money. But, how indubitable soever the title may be, of any object to be considered as belonging to the list of these same causes, the magnitude of the pleasure produced by it does not increase in so great a ratio as that in which the magnitude of the cause increases. Take, for instance, the same cause as before: namely money. Take thereupon any individual: give him a certain quantity of money, you will produce in his mind a certain quantity of pleasure. Give him again the same quantity, you will make an addition to the quantity of his pleasure. But the magnitude of the pleasure produced by the second sum will not be twice the magnitude of the pleasure produced by the first. While the sums are small, the truth of this position may not be perceivable. But let the sums have risen to a certain magnitude, it will be altogether out of doubt; and it will then be matter of mathematical certainty that the diminution cannot have been made to take place in the case of the greatest quantity without having been made to take place, to a proportionable amount, in the case of the several lesser quantities.
Take, for example, on the one hand, a labouring man, who, for the whole of his life, has a bare but sure subsistence: call his income £20 a-year. Take, on the other hand, the richest man in the country; who, of course, will be the monarch, if there is one: call his income £1,000,000. The net quantities of happiness, produced by the two incomes respectively—what will be their ratio to each other? The quantity of money received annually by the monarch is, on this supposition, 50,000 times as great as that received, in the same time, by the labourer. This supposed, the quantity of pleasure in the breast of the monarch will naturally be greater than the quantity in the breast of the labourer: Be it so. But by how much—by how many times greater? Fifty thousand times? This is assuredly more than any man would take upon himself to say. A thousand times, then?—a hundred?—ten times?—five times?—twice?—which of all these shall be the number? Weight, extent, heat, light—for quantities of all these articles, we have perceptible and expressible measures: unhappily or happily, for quantities of pleasure or pain, we have no such measures. Ask a man to name the ratio,—if he knows what the purpose is, his answer will vary according to the purpose: if he be a poet or an orator, and the purpose of the moment requires it, with as little scruple will he make the labourer’s happiness superior to the monarch’s, as inferior to it. For the monarch’s, taking all purposes together, five times the labourer’s seems a very large, not to say an excessive allowance: even twice, a liberal one.
After it has thus been applied to the case of the richest individual in the country, apply the estimate to the case of the next richest, suppose the man with £200,000 a year, and so downwards. If the monarch’s pleasure is not in any greater ratio to the labourer’ than that of 5 to 1, the excess of this next richest man’s pleasure, as compared with the labourer’s, cannot be so great. Carry the comparison down through the several intermediate quantities of income,—in the account of pleasure, the balance in favour of the non-labourer as against the labourer will thus be less and less.
As it is with money, so is it with all other sources or causes of pleasure: factitious dignity, for example. Give a man a ribbon, you will produce in his mind a certain quantity of pleasure. To this ribbon add another, you may add more or less to the former quantity of his pleasure. You may add to it: but you will not double it. Cover him with ribbons, as, at the expense of his starving subjects, some of the King of England’s servants are covered with gold lace, till the colour of the coat is scarcely visible—add even money in proportion—still will it be matter of doubt whether the quantity of pleasure in his mind will be double the quantity existing in the mind of the labouring man above mentioned.*
The footing, upon which the process of reasoning is thus placed by the principle of utility, is not only the only true and defensible footing, but the only one (it will be seen) on which any tolerable degree of precision can have place: and, even in so slight a sketch as the present, already it may have been observed, how near to mathematical the degree of precision is, in this case, capable of being made. Considered with reference to an individual, in every element of human happiness, in every element of its opposite unhappiness, the elements, or say dimensions of value (it has been seen,) are four: intensity, duration, propinquity, certainty; add, if in a political community, extent. Of these five, the first, it is true, is not susceptible of precise expression: it not being susceptible of measurement. But the four others are.
By this mode of reasoning, the doctrine of proportions is naturally introduced, and, on every occasion, held up to view. In so far as, is the formulary by which the case thus taken is announced, and the requisite effect produced. Without thus adverting to proportions, say absolutely and simply, of the thing, whatever it be—it is so and so, or it is not so and so—in either case, if, in your bucket, as it comes out of the well, you have more or less of truth, no one can say, for no one has inquired, in how large a proportion falsehood may not have come mixed with it.
To return to the application thus made of arithmetic to questions of utility. How far short soever this degree of precision may be, of the conceivable point of perfection—of that which is actually attained in some branches of art and science,—how far short soever of absolute perfection,—at any rate, in every rational and candid eye, unspeakable will be the advantage it will have, over every form of argumentation, in which every idea is afloat, no degree of precision being ever attained, because none is ever so much as aimed at.
Till the principle of utility, as explained by the phrase the greatest happiness of the greatest number, is, on each occasion, if not explicitly, implicitly referred to, as the source of all reasoning,—and arithmetic, as above, employed in making application of it, everything that, in the field of legislation, calls itself reasoning or argument will—say who can in what large proportion—be a compound of nonsense and falsehood; both ingredients having misrule for their effect, after having, in no small proportion, had it for their object. In words, opposite to one another in character, but all of them indeterminate in quantity, may be seen the ordinary instruments of debate:—the weapons with which the warfare of tongues and pens is, in a vast proportion, carried on. In penal law, justice and humanity—in finance, economy and liberality—in judicial procedure, strictness and liberality of construction—in constitutional law, liberty and licentiousness. It is with trash such as this, that corruptionists feed their dupes, teaching them, at the same time, to feed one another with it, as well as themselves. It is with one part of it in their mouths that the holders of power pass for wise, and the hunters after it for eloquent. Thus cheap is the rate, at which, in any quantity, each combatant finds matter of laud for those of his own side of the question (not forgetting himself,) and matter of vituperation for his antagonists. It is by nonsense in this shape that the war, made upon the principle of utility by ipsedixitism and sentimentalism, with or without rhyme, is carried on.
In the titles, with which the several sections of this paper are headed, it may be observed as a singularity, that the words, The greatest happiness of the greatest number, occupy the first place. The use of them is—to serve as a memento, that, whatever be the subject of consideration,—in so far as it belongs to the field of government, matters be so ordered, as that the only defensible end of government shall never be out of sight.
To this instructive phrase, substitute any of those unmeaning terms, to which, under the lash of perpetually-accusing conscience, the enemies of good government are, at every turn, constrained to have recourse. Substitute, for example, the word legitimacy, or the word order, and say—maintenance of legitimacy requires, or maintenance of order requires, that the state be provided with an all-comprehensive—with a rationalized code of law—that, in the rationale, the several reasons, or sets of reasons, be contiguously attached to the several arrangements to which they apply, and so forth. The substitution made, see then, ask yourself, what guide, what check, is furnished by the nonsense thus substituted to useful sense? Why then is legitimacy anywhere the word? Because, owing to intellectual blindness and weakness, absolute monarchy is still established by law in so many more countries than any better form of government is. Why is order the word? Because, while the best government can no more exist without order in some shape or other than the worst, the worst order is as much order as the best. In the worst government, order of some sort is established. Does it follow that it must be good, because it is established? Must everything be good that is established? What is thus said of the body politic, apply it thus to the body natural. Take a man in whose head or stomach the gout is established: take a man in whose bladder a stone is established. Established as it is, does the gout, does the stone, contribute anything to his happiness?
Good is pleasure or exemption from pain: or a cause or instrument of either, considered in so far as it is a cause or instrument of either.
Evil is pain or loss of pleasure; or a cause or instrument of either; considered in so far as it is a cause or instrument of either.
Happiness is the sum of pleasures, deduction made or not made of the sum of pains.
Government is in each community the aggregate of the acts of power exercised therein, by persons in whom the existence of a right to exercise political power is generally recognized. Every act of power, in the exercise of which evil as above is employed, is itself an evil: and, with small exceptions, no otherwise than by such acts can the business of government be carried on. No otherwise than through the instrumentality of punishment can even such parcels of the matter of good as are employed in the way of reward, be in any comparatively considerable proportion, got into the hands by which they are applied.
To warrant the employment of evil, whether in the character of punishment or in any other character, two points require to be made out: 1. That, by means of it, good to a preponderant amount will be produced; 2. That, at any less expense of evil, good in so great a proportion can not be produced.
In every rationale, both these points ought to be constantly kept in view: in the rationale hereby offered, they will be constantly kept in view.
No otherwise than by reference to the greatest-happiness principle, can epithets such as good and evil, or good and bad, be expressive of any quality in the act or other object to which they are applied: say an act of an individual: say an act of government: a law, a measure of government, a system of government, a form of government. But for this reference, all they designate is—the state of mind on the part of him in whose discourse they are employed.
When, and in proportion as, this standard is employed as the standard of reference,—then for the first time, and thenceforward for ever, will the import of those same perpetually employed and primarily important adjuncts, considered as indicative of qualities belonging to the objects they are applied to, be determinate.
The greatest happiness of the greatest number requires, that, of this Rationale, the several parts be placed in the most immediate contact with the several arrangements to which they respectively apply. Rationale, interwoven, not detached.
1. Instances have appeared, in which, in the place of sets of reasons, attached, each set, to a correspondent arrangement taken by itself,—in place of this perpetually interwoven accompaniment,—a general preliminary discourse has been employed, prefixed, the whole of it, to this or that portion of the body of the laws. Forming a body apart, this substitute to sets of separately and contiguously attached reasons, will not, in any tolerable degree, fulfil any one of the purposes above mentioned.
Neither in respect of clearness, of correctness, nor of completeness, will it be able to stand any comparison with them.
Taken together, it will constitute a work, altogether distinct and detached from the work to which it professes to give a support, and of which it professes to make a part.
In the case of no one of the several classes of persons in question—neither in the case of the draughtsman, nor in the case of the subject citizen, nor in the case of the judge, nor in the case of the legislator, will it operate with any considerable effect, towards any of the purposes above enumerated: in particular, neither to the feet of the subject citizen will it be a lamp, nor in the case of the draughtsman, the legislator, or the judge, a bridle to the mouth. In the mind of the reader, losing their appropriate contiguity, the several parts of it will lose their application, if they have any: their application, their import, their binding force, their instructive effect.
2. When the first of the codes established by Buonaparte was first published—(it was the penal code)—attached to it was a sort of accompaniment, in the form above mentioned, viz. that of a separate and preliminary discourse. It was composed of a tissue of vague generalities, floating in the air, in the character of general principles. In that form was it delivered, and not in the form of reasons,—reasons applied, in the discourse, to the several particular arrangements, to which, in each man’s mind, they were respectively meant to apply? In that nebulous form,—and why? Because this rule of action, not having for its main end in view the above-mentioned all-comprehensive and only proper end, the greatest happiness of the greatest number,—not having for its main end any other object than the individual happiness of the individual despot of whose will it was the expression, and from whose power it was to derive its force,—the tenor of it was, from first to last, in numerous points, such, for which no reasons that could bear the light could be given: and it was for this same cause that a clear arrangement, which he knew of, and which had passed under his review, had been actually put aside: yes, contained as it was in a work, his approbation of which had been pointedly declared,* put aside, and an arrangement, which had for its undeniable purpose the organization of an all-comprehensive and appropriate system of confusion, was employed in preference.
The one put aside? Why? Because, having throughout for its object the greatest happiness of the greatest number, it took throughout, for its principle or source of distribution, the manner in which, by the several acts in question, that happiness is effected. The other employed? Why? Because, having for its main object the personal interest of the lawgiver, as above, it had for its principle or source of distribution, the manner in which, in respect of those acts, it was his will, because, in his view of the matter, it was his interest, according to his own conception of his interest, that men should be dealt with. Offences made punishable in the highest degree,—offences made punishable in the next highest degree but one—offences made punishable in the lowest degree: such has been, such continues to be, the classification—the logic—of tyranny and misrule, every where. Look for example to the matchless constitution—the envy and admiration of the world. Would you learn the difference in the nature of different classes of punishable misdeeds? It is from the intimation given of the several masses of punishment attached to them, that you must guess at it as well as you can: this must be your clue; for there is no other. It is from the words treason, unclergyable felony, clergyable felony, premunire, and misdemeanor.
3. Such being the principle of arrangement,—instead of reasons, formed by application of the principle of utility, and making reference throughout to the only legitimate end,—reasons all along particularly apposite to, and placed in contiguity with, the several particular arrangements they were meant to be applied to,—instead of any such really useful accompaniment, came the above-mentioned preliminary discourse: a glittering object, floating in the air, and composed of clouds. Why any such preliminary discourse? Answer: that, in the eyes of the prostrate multitude, a display might be made of extent and profundity of reflection: that where, in comparison of what might have been done, little good was really done, much might be thought to be done.
4. In the newly-erected kingdom of Bavaria—erected under that same ever-selfish, though never needlessly cruel despot’s influence—under that same influence, a penal code, with the same arrangement, and the same sort of accompaniment, was established.†
5. Not many years ago, in a political state not altogether so ample in extent, the above-mentioned natural principle of arrangement having been adopted,—the attaching of a rationale, samples of which lay on the table, was proposed. It was not accepted. For what alleged reason was it that reasons were not to be admitted? For this reason—that reasons are dry things. Gay and amusing in its own nature, a code of law would be divested of those its pleasant qualities, if any such dry matter as that which is composed of reasons were intermixed with it. This gay reason, is it possible that it should have been the real one? Impossible. What, then, could have been the real one? What but this—that, in the place of the sort of matter thus cast out,—those by whom it was cast out having to insert some matter of their own, by which no such test as that of reason, deduced as above from the greatest-happiness principle, could have been endured,—having some object of particular and latent interest—of interest-begotten prejudice—of authority-begotten, or of habit-begotten prejudice or caprice,—to stick in—or something good, to which those powers were adverse, to keep out—thus it was, that against an inmate so inconvenient and troublesome as reason, the door was shut. If any cause that can better bear the light can be found, it were well that it should see the light: if, in the eyes of those by whom this exclusion was effected, it be honourable to them, it were pity the honour should not be reaped by them. Invitation is here given to them to produce their names, and thus to come forth and claim it.
6. To the draughtsman principal in labour and eminence, permission was (it is said) given to give reasons: but these reasons were to be his, and not the legislator’s, and, lest they should be too clear, too closely apposite, too instructive,—they were to put off the garb of particular reasons—they were to be rarefied and sublimated, and confounded as above, into the form of a general preliminary discourse.
In a lately published tract on the Spanish proposed penal code,‡ may be seen the sort of notice taken by the draughtsman in the Cortes, of the demand that (it seems) had on that occasion been made, for something in the nature of a rationale, and the sort of apology by which the giving satisfaction to that demand was evaded. So far as regarded the legislators themselves, assurance was given to them, that every demand of that sort stood completely superseded, by the consummateness of the wisdom of those same legislators: and, as to the rest of the people—of that people for whose benefit the demand for this instrument of elucidation, justification, instruction, and satisfaction, might by some be thought to have place—that people from whom the draughtsman, and those colleagues of his whom he was addressing, derived all the authority they could pretend to—no such objects (it should seem) happened to present themselves to the draughtsman’s view.
Whatsoever cause for regret the omission may in that case have afforded, no just cause of wonder can it afford in any case. The easiest of all literary works, bulk for bulk, is a code of law stark naked: a code altogether bare of reasons in any shape: next to the easiest, a code with no other habiliment than a separate tissue of vague and commonplace generalities, with a gloss of reason on the surface of it. Not only the most important, but the most difficult of all human works, may be safely pronounced, an uniformly apt and all-comprehensive code of law, accompanied with a perpetually-interwoven rationale, drawn from the greatest happiness principle, as above.
The greatest happiness of the greatest number requires, that for the function exercised by the drawing of the original draught of such a code, the competitors he as many as, without reward at the public expense, can be obtained: and so, for that of proposing alterations in such draught as shall have been adopted. Plan for obtaining competitors.
The contents of the preceding sections have for their subject the characteristic nature and plan of the here proposed work.
The contents of this and the succeeding sections have for their subject the choice of hands for the execution of it.
On this occasion, never be it out of mind, that the work in question is—not a body of law in its ultimate state—in that state in which it receives the sanction of the sovereign power:—it is nothing more than the original draught, drawn up in the view of its receiving that sanction as above: of its receiving it indeed—but eventually only: and not till after it has undergone all such alterations as, by any of the several persons among whom respectively the sovereign power in matters of legislation is shared, shall have been proposed,—and, by those whose concurrence is necessary to the application of that sanction, adopted: in a word, by the several authorities in that behalf constituted.
Yes; if, while, from any one or more individuals, an original draught, or any number of such original draughts, were admitted to the exercise of this function, all other persons were excluded from it, or even all persons other than those among whom the power of sanctionment, as above, is shared; Yes: in such a state of things,—were it the state of things here proposed,—true it is, that by the admission given to some, coupled with the exclusion put upon others, not only would a power be created, but the very power which, in consideration of its unnecessary and mischievous magnitude, it is the object of the very arrangement here proposed, to exclude.
On this part of the subject, six principal positions have been the result of the inquiry: in the table of contents they may have been seen at length. They are here recalled to view in brief, each of them in company with a correspondently brief intimation of the principal considerations or reasons by which it was suggested. The first of them, with a development of its reasons, constitutes the matter of the present section: the rest will, in the like manner, occupy the five next succeeding ones.
I. Admission universal.—Competitors, for the function exercised by the furnishing of the original draught, as numerous as possible.
Reasons.—1. Chance, for the greatest possible degree of aptitude on the part of the work, a maximum: to sinister interest, and other causes of inaptitude, on the part of those on whom the quality of the work in its ultimate state depends, the strongest bridle applied that the nature of their situation admits of.
2. School for legislative and other functionaries, thus instituted.
II. Remuneration at an additional public expense, none.—Reason 1. Avoidance of inaptitude, on the part of the work, through patronage and favouritism: also, through precipitation according to one mode of payment; through delay, according to another: delay, ending perhaps in final non-performance.
III. Hands, not more than one.—Reason 1. Avoidance of inaptitude in the work, by reason of moral inaptitude in the workman, through want of responsibility for bad workmanship, and want of encouragement for good. 2. Avoidance of inconsistency: of want of unity of design, and symmetry of execution, as between part and part.
IV. Hands, not only single, but known to be so.—Reason. Else the responsibility and the encouragement deficient.
V. Not only the hand single, and known to be so, but whose it is, known.—Reason. Else the responsibility and the encouragement still deficient.
VI. The hand of a foreigner, not only admissible but preferable.—Reason. Exemption from local sinister interests and prejudices: deficiency in local knowledge being easily amendable by native hands, in the course of the progress of the work, through the constituted authorities.
Note, that in a representative government, the hands ordinarily employed in the providing of the original draught are those of a legislation committee. With the exception of the second point, namely, the gratuitousness of the service, the desirable results, referred to by the above reasons, are, in this case, all of them, either foregone or lessened. Gratuitous in this case the service naturally and commonly is in appearance unquestionably: but to the degree in which it may be otherwise in effect, no bounds can be assigned: in the nature of the case there are no others, than those which apply to the quantity of depredation and oppression, exercisible, in the community in question, by a government over which the people have no more than a nominal controul, compared with that exercisible where the people have a real and efficient controul: a few restraints on the liberty of the press and public discussion may suffice to establish the difference.
These are but faint anticipations. For placing in their full light all these several points, considerable development and explanation will be unavoidable.
1. As to the proposed universality. By it would be instituted a mode of codification, which, for distinction, might be styled the open mode.
The following slight sketch may serve to convey a general conception of it:—
In the name of the constituted authorities, or of the legislative body alone, let invitation be given to all persons without distinction, who, (with the exception of the members of the legislative body during the time of their serving in that capacity,) regarding themselves as competent, may feel inclined to transmit to the legislative body, each of them a general sketch or outline of the proposed original draught of a work of the sort in question: with a sample or samples, of the mode in which it is proposed to execute it, expressed in the words in which it is proposed to stand: to which samples may be added, general indications, on such occasions on which the nature of the case admits not of the taking any determination respecting the individual words.
2. Let intimation be at the same time given, that, in proportion to the aptitude of the work according to the estimate formed of it by public opinion, evidence will be regarded as having been given, of appropriate aptitude on the part of the workman, with relation to many of the most important public offices, to which pecuniary emolument stands already attached.
3. In such sketch, and sample or samples, should be comprehended as well the civil as the penal code: so intimate being the connexion between those two parts, that without a comprehensive and conjunct view of both, no clear, correct, complete, consistent, and well-ordered mode of execution, could be given to either.
4. In the samples and in the general sketch, it may perhaps be found necessary that the constitutional code be omitted: for, so universal and tenacious and craving is the appetite for power, that the idea of any considerable change in this part of the field of legislation affords little promise of being found endurable unless when imposed by force or intimidation.
5. In a representative democracy, there need be no difficulty. In the advertisement for this purpose, the legislative body, however, might probably, without objection, if it saw any use in so doing, lay down as a fundamental and indispensable principle, that, immediately or unimmediately, all functionaries shall be placed, and at short intervals displaceable, by the greatest number of the adult population, or of the male part of the adult population: or rather might give intimation, that for any departure from this principle, some special and convincing train of reasons would be expected to be assigned.
6. For the giving in of these samples, some determinate day, it should seem, would unavoidably be to be fixed. That day arrived, it will then be to be put to the vote which sample shall be preferred; or whether, for want of any satisfactory sample, the time shall be enlarged.
7. Suppose a sample pitched upon. A further day will then be to be assigned, on or before which, a proposed complete code in terminis, embracing these two branches, with such blanks only as the nature of the case necessitates, shall be given in.
8. Though, if samples more than one have been sent in, adoption, if given to any, must be given to some one of them—it is not necessary that any peremptory exclusion should be put upon such complete draughts as any other of the competitors may be disposed to present. This (it may be said) is the sample most approved of. But all other persons are still at liberty to propose, each of them, his draught. It will, on that occasion, then be for each of them to consider—whether a completed draught, in conformity to the pattern most approved of, will not afford him the most promising chance.
9. On this plan, the remuneration—remuneration suited as above to the nature of the case, and of the sort of service rendered—need not, and naturally would not, be confined to the competitor by whose samples, nor in conclusion to the competitor by whose completed draught, the largest share of approbation has been obtained.
10. By the preference thus given in the main to this or that sample, or to this or that draught, the legislative body would not be precluded from giving indication of this or that portion of this or that other draught, as being regarded fit to be employed in the draught most approved.
11. The invitation to send in original samples, and afterwards completed draughts, will, of course, be accompanied or followed by a correspondent invitation to send in observations on, and proposed amendments to, all samples and completed draughts, to which any such acceptance, total or partial, shall have been given as above.
12. Be the number of these patterns ever so considerable, the expense of printing and publishing should be defrayed by government. Were it not for this, the expense might be a bar to the work of the least affluent competitors: and thereby to those, in whom, as such, the habit of intellectual labour, and thence the promise of intellectual, and even of appropriate moral aptitude, is fairest.
13. The produce of the sale might either be applied in alleviation of the expense, or be given to the respective authors. The expense on this score neither promises nor threatens to be very considerable. Be it what it may, so long as, in the whole of the official establishment, so much as a single sinecure, or useless, or needless, or overpaid office is to be found, to this expense no objection can with any consistency be made.
If, in consequence of this plan, any addition were to be made to the number of salaried offices it found in existence, it would be that of a functionary, with some such title as that of Conservator of the laws. Upon the following ground, stands the demand for an office of this nature. Regular and symmetrical would naturally be—would necessarily be, if well executed—the structure of a code, having for its accompaniment a rationale as above. By subsequent additions and alterations—without a degree of skill and care too great to be constantly reckoned upon, on every occasion, and from all legislative hands promiscuously taken—the symmetry would be liable to be injured, and confusion introduced: to obviate this inconvenience, in so far as it can be obviated without prejudice to the uncontrouled exercise of the legislative power, would be the office of this functionary. Before the sanctionment of each law—or when the pressure of the time was regarded as not admitting of the delay, as soon afterwards as might be—to him it would belong to propose for the substance of the new law, a form adapted to the structure of the code. Thereupon, if the form so proposed were adopted by the legislature for the time being, so much the better: if not, it would remain as the subject-matter of a virtual and tacit appeal to succeeding legislatures.
14. Supposing the office here in question established, the author of the draught most approved of seems to be the person, to whom, if expected to be found willing to accept of it, the offer of it would naturally be made.
15. But the choice should be left unfettered. Be the literary composition ever so well penned, fitness for the office would not, on the part of the author, be a necessary consequence. Various are the points of appropriate aptitude, in which, relation had to the business of this office, he might still be deficient. Witness, aptitude in respect of health, assiduity, uncorruptness, firmness, gentleness, quickness in execution, &c.
16. After the completion of the code, it might not improbably be a considerable time, before the need of the offer thus described would manifest itself.
Reasons for the above described open mode.
They are constituted by the advantages, which, with reference to the greatest happiness of the greatest number, would be the result of it.
1.—Reason 1. The chances, in favour of the aptest possible draught, rendered the greatest possible. The more draughts sent in, the more will there be for those to choose out of, to whom it belongs to choose.
2.—Reason 2. The greater the number of draughts sent in, the greater the number of those, out of which, portions might, upon occasion, be selected for the amendment of that one, whichsoever it were, that shall have been chosen to serve as the principal basis of the completed work.
3.—Reason 3. Advantages derivable from the school that would thus be established, for functionaries in the legislative departments.
4.—Reason 4. Advantages from the school thus established, as applied to the case of functionaries in the judiciary and administrative departments.
Masters in these schools, the authors of the proposed codes: scholars, the readers of these same codes. Note, that in this branch of art and science, as in every other, the pleasantest and most effectual mode of learning is by teaching;—by teaching, or at least endeavouring to teach.
By the reading of books and articles in periodical works, on subjects belonging to this or that small spot in the field of legislation—by reading in this way, with or without the hearing of speeches, are statesmen formed at present. But from such scattered and casually visited springs, what is the greatest quantity of information capable of being derived, in comparison of all those several floods, by each of which the whole field of legislation and government will be covered?
True it is, that, in regard to offices belonging to the judicial department, the same observation applies to these as that which has just been applied to the proposed future contingent office of conservator of the laws. By no degree of aptitude, be it ever so high, on the part of any such legislative draught, can any absolutely conclusive evidence be given, of aptitude on the part of the author, with relation to any of these certainly and constantly indispensable offices. Witness, in addition to the elements of aptitude instanced in that case, fluency in speech.
So likewise in regard to offices belonging to the several branches of the administrative department. Further exemplification will not here be necessary.
Still, as far as it goes, still even with reference to every such office, what can scarcely fail to have a place is—that by the authorship of an intellectual work, so matchless in difficulty as well as importance—in the extent of knowledge as well as correctness of judgment necessary,—evidence of appropriate aptitude—evidence in a pre-eminent degree probative—will have been exhibited—exhibited by a no inconsiderable proportion of the whole number of competitors.
1.—Objection 1. Fruitless the invitation: none will be found to accept it.
Answer. The objection has been anticipated. What!—is money of no value?—is power of no value? The highest of all bloodless glories, is that too of no value? Vain would it be to say—despair of success will drive men from so arduous a work. Not it indeed. In each man’s eyes, success will depend—not on absolute, but on comparative aptitude.
But, suppose no such work sent in, where is the evil? Absolutely none. On the contrary, there is this positive good: evidence given to the subject many—evidence, and that of the most conclusive kind—of sincerity on the part of their rulers, in respect of the sacrifice thus made of so large a portion of power to the universal interest.
2.—Objection 2. The press would be inundated and overloaded; public money would be wasted in the publication of so many voluminous compositions; public time wasted in the consideration of them.
Answer. Strange indeed it would be, if the objection were not completely anticipated by the two great political schools—by the school for legislative functionaries, and the school for executive functionaries, as above. For any the most trifling branch of art and science, in what instance was any the most inconsiderable school ever established by the government of a country at so small an expense?
3.—Objection 3. An innovation this: unprecedented this open mode of legislation.
Answer. True, in point of fact: but what is the application of it in point of argument? Unprecedented it must be confessed is this open mode, on the part of men whose station is in that place from whence it is proposed that the invitation should come. Unprecedented: but why? Only because, in breasts so stationed, pre-eminent regard for the greatest happiness of the greatest number, in preference to all particular and thence sinister interests, is unprecedented.
4.—Objection 4. By the adoption of this open mode, the two situations of representatives and constituents would be confounded: the power that had been transferred, would thus be given back.
Answer. What if it were—what if, for the purpose of passing condemnation, a word to which a dyslogistic sense stands associated, such as the word confusion, could, without impropriety, be applied? Suppose not only these but all other situations confounded, where would be the evil, if, by such confusion, the greatest happiness of the greatest number would be increased?
Not that there is any such thing as confusion in the case. True it is—that, by every exercise given to the legislative function, a power is exercised: for, of this function, the exercise is confined to a comparatively small number, all others being excluded from it: to that function, therefore, power is effectually attached. But, by the very supposition, from the exercise of the function here proposed to be laid open to every man, no man is excluded. Here, therefore, no power has place. True it is, what is proposed is—that a service be performed: a service which, if well performed, will be the most beneficial, as well as the most difficult, of all services: but still, by the performance of it, though it were by ever so great a multitude, not an atom of power would be exercised.
Reasons for not giving to members of the legislative body the exclusive faculty of furnishing original draughts:—of furnishing them in this extraordinary case, as has been hitherto everywhere the practice in all ordinary cases.
1.—Reason 1. They have no time applicable to it.
The composition of a body of law,—which is to be at the same time all-comprehensive, and on every point, by means of a perpetually interwoven rationale, justified and explained,—presents of itself an irresistible demand for the whole quantity of applicable time, at the disposal of whatsoever individual may be engaged in it: if so, then, in the case of every individual possessing any share in the aggregate of legislative power, if any part of his time be employed upon this work, the consequence is—that either the ordinary function called, or liable to be called, continually into exercise by the exigencies of the day, or else this extraordinary function, or both the one and the other, will of necessity be neglected.
In the practical result of this reason, is comprised (it may be observed) an exclusion put upon the members of the legislative body, as to the function of drawing up any such draught. It applies not however to the persons—this exclusion:—it applies only to the time: and as to time, it applies not to any portion other than that which, by their engagement, stands appropriated to the ordinary duties of such their situation. It applies not to the exclusion of any draught already prepared by any member, antecedently to the day on which the all-comprehensive invitation shall have been resolved upon: it applies not to any portion of time subsequent to that, during which his exercise of those same ordinary functions is continued: it is therefore no bar to his entering, immediately after such invitation, upon the task of penning such a draught, provided that on that occasion he vacates his seat.
Objection to the above temporary exclusion. Presence of the author necessary for explanation and justification. What (it may be asked) must be the condition of any such original draught, if the author, of whose views it is the expression, is not, at the time of its being on the carpet, enabled by his presence to supply such explanations and justifications as may be requisite for the support of it?
Answer 1. To the case of an original draught of the ordinary kind—of a draught containing nothing but an assemblage of expressions of will, without anything whatever in the shape of reason for the justification or explanation of it,—true it is, this objection would apply with no inconsiderable force. But, in the case of an original draught of the sort here in question, an instrument of explanation and justification is by the supposition always present: and this too in a form beyond comparison more apt than any that could be given to a set of impromptuary and orally delivered observations: more apt, namely, in clearness, correctness, completeness, conciseness, compactness, methodicalness, consistency (meaning, exemption from inconsistency): naturally, not to say necessarily, more apt, and that to an indefinite degree.
2. The original draught, whatever it be, being given in, the having composed it is no bar to the author’s being a member of the assembly in which it is the subject of discussion.
In truth, supposing him not to be a member, he might throughout the discussion be present, with the faculty of giving his assistance to both those purposes. Nothing more natural, because nothing more obviously useful, and as it should seem unexceptionable. His not having the power of a member, is no reason why the assembly, and through the assembly the nation, should not have the faculty of receiving from him this service.
2.—Reason 2. By the competition thus proposed, a bridle will be applied to the power of the constituted authorities: a bridle, and that an unexceptionable and indispensable one.
The need of this tutelary instrument has for its cause the influence of sinister interest: that particular interest, by which, in case of competition, and to the extent of the competition, every individual is prompted to make sacrifice of the happiness of all besides to his own individual happiness: in every situation every individual prompted, and, in every political situation, in proportion to the power and influence attached to that situation, enabled, to make this sacrifice: say the sinister sacrifice.
Behold now what this bridle is, and how it is that, by the unlimited number of original draughts let in by the proposed open mode, it is applied. By the supposition, each draught comes provided with its rationale; and true it is that, by that same rationale, as above mentioned, a bridle is applied, nor that an inefficient one: applied, namely to the mouth of the author of that same draught. Small, however, will be the utmost tutelary force of that one bridle, compared with that which may be applied by the aggregate of all the several draughts, with their respective rationales, to which, in a number altogether indefinite, it is the object of the here-proposed arrangement to give birth. The bridle which, in this shape, each man makes for his own mouth, will of course be as light and soft as he thinks he can venture to make it. Let any one therefore judge, how inadequate the force of this one check, and that applied by so partial a hand, cannot but be, when compared with the united force of all those instruments of salutary controul which, in an indefinite number, he sees about to be applied: applied by so many different hands, preserved, all of them, by the very nature of the case, from all partiality in his favour: instruments, which though not made, any of them, for his mouth in particular, will not be the less effective.
Of this composite bridle, the tutelary force will apply itself successively to both situations: in the first instance, to that of the framers of the several original draughts, on which the several members of the legislature are to sit as judges, and when it has produced its effect in that quarter, then to the situation of members: to the legislators themselves, when occupied respectively in the formation of their several judgments, and in the consideration of the line of conduct to be pursued by them in consequence. In the case of each individual draughtsman, the controul has for its cause, the anticipated view of the body of information, that may come to have been furnished by the several rationalized codes sent in by his competitors: in the case of the legislator, it is the actual view of them when sent in. When the collection of them has been completed, each member of the legislature, according to the measure of his zeal and industry, will of course compare them with one another in his own mind, and out of such of them as appear to him worthy his attention, he will form for himself the substance of a new draught, composed of whatsoever arrangements have obtained his preference. In this new draught, in what way soever the component parts of it may have been put together,—whether in the letter-press or only in his own mind,—the rationale will be the standard of comparison, by which the text of each arrangement, in each several draught, will be judged of by him: and, of the correspondent portions of text, will be composed the aggregate of the several arrangements, to which his duty will be calling upon him for his support. Moreover in this same aggregate, each private individual, whose attention is applied to the subject, will see the ground of whatever judgment he puts himself in a way to pronounce—whether in the general character of member of the tribunal of public opinion, or in the particular character of constituent, on the conduct of his representative, on the occasion of the judgment passed by him on the subject of the work, in the aptitude of which the whole nation has so deep an interest.
Reader, be not alarmed by the idea of the possible immensity of the supposed aggregate. The state of things, which in an eminent degree seems probable, is—that, be the number of the draughts what it may, of some one of them—the most apt upon the whole—the consistency will be such, that if it be employed in any part, it will be employed, almost to the exclusion of all others; and that the only use made of these others, will be the deriving from this and that one of them, an amendment for this or that particular imperfection, that may have been observed in the fundamental work.
A pattern of this sort being in every man’s view—a literary composition, of which, in every part, the component words stand determined—conceive now the advantage, with which, in his capacity of censor, every citizen will be enabled to act, while calling to account this or that member of the legislative body, in respect of the code, or any part of the code, to which his concurrence has been given:—“Behold this and this unfit arrangement in the draught that has your support—to arrangements, the unfitness of which stands demonstrated in the portion you see of the rationale belonging to this other draught. Behold the draught, in which are this and this fit arrangement, which, in your draught, though in the corresponding parts of its rationale their fitness stands so conclusively demonstrated, are not to be found! With the so much better lying before you, wherefore is it that you have given preference to the worse? For such preference, what justification, what apology, can you produce?” Of this nature are the questions, by the fear of which the bridle is applied.
Compared with a judgment formed with such a pattern for its ground,—how vague and ungrounded must be the best grounded judgment, which, in relation to the subject matter in question, can be formed!—formed, even by the best constructed mind in the present state of things! Neither for approbation, nor thence for disapprobation, is anything, approaching, though at ever so wide a distance, to a determinate ground, to be found anywhere, by any man: nothing better than the ever indeterminate, and ever changing, as well as ever inadequate, stock of such crude, incorrect, incomplete, mutually and perpetually discordant conceptions, as may be found extractible from the existing stock of literary matter, belonging to the several departments of legislation and government: with or without the addition of such information and advice, as it may happen to him to have obtained from this or that other man, whose conceptions and judgment have been derived from the same muddy source: both judgments all the while exposed, and without warning, to the delusive influence of all those fallacies, and other instruments of delusion, with which the whole field of government is, in every portion of it, so abundantly infested.
Deteriorated rather than improved, is this fluctuating standard, this ever changing pattern, by such flashes of eloquence, addressed so much more frequently to the passions than to the judgment—those momentary lights, of which orally delivered speeches are in so large a proportion almost unavoidably composed. The greatest-happiness principle, with its mild and steady radiance, will be an extinguisher to all such false lights.
Antecedently to the formation of the sort of pattern here described,—in forming a judgment in relation to what on this or that part of the field the law ought to be, the condition men’s minds are in, is analogous to that in which, on so large a portion of that field, they are, in relation to what the law is: namely, on that portion of it which is under the dominion of that spurious and fictitious substitute to really-existing law—that fictitious offspring of each man’s imagination—so improperly though generally designated by the name of unwritten or common law.
Not only to any representative of the people may questions, with this ground to them, be addressed, but to any other sharer in legislative power, whose situation is accessible: not only to the situation of representative of the people does the corresponding bridle apply, but to that of any servant of the monarch in the situation of minister: of minister:—for, as to the fleshly idol of which the minister is the priest, deafness as well as dumbness are of the number of his attributes.
Not only by a constituent, to a candidate for the situation of representative, on the occasion of an election,—but by any individual whatever, and on every occasion, so his situation be but an accessible one, may the sort of questions above exemplified, searching as they are, be addressed.
If appropriate moral aptitude in perfection, seconded by appropriate intellectual and active aptitude in correspondent perfection—if consummate wisdom and consummate talent under the guidance of consummate virtue, be not among the never-failing accompaniments of power—if, in a word, for the security of the subject many, a bridle in any shape to the power of the ruling few, be needful,—a softer and less galling bridle than the one here proposed—a softer and less galling one, whatsoever may be its efficiency—cannot easily be imagined. Whatsoever be the constitution it finds established, not any the slightest change would it produce or so much as hint at.
Even under a pure monarchy, if in such a government a bridle in any shape, applied to the mouth of the earthly representative of the Divinity, in any part of the field of his dominion, could be endurable,—a bridle in this shape might, not impossibly, be endured. In the penal and the civil portion of the field, it would be so, if in any. As to the constitutional portion, on which, under this form of government, nothing reasonable can be said in support of anything that has place,—on which, darkness, silence, and motionless prostration on the one part are the indispensable means of security on the other,—on this domain, the touch of a feather in the shape of a bridle would be intolerable: the more efficiently contributory an arrangement were demonstrated to be to the greatest happiness of the greatest number, the more intolerable would the sight of it be to the supremely ruling one, with his sub-ruling few.
Discarding now all these flattering suppositions,—take in hand the sad case, which as yet has at all times and everywhere been in this respect the only real one. Proposed code, none visible, but the one, whatever it be, which has had the seat of power—of irresistible power—for its birthplace. Out from it comes the draught,—and in every part of the field, be its inaptitude ever so portentous, this it is that must have the stamp of authority upon it—this or none. All better ones have been kept out of existence.
Would any man wish to see in how high a degree inimical to the greatest happiness of the greatest number, a proposed code is capable of manifesting itself?—of manifesting itself, after all the lights, which, down to the present time, have been spread over the field of its dominion?—let him turn to the work, with which, in the character of a penal code, Spain, while this page is penning, is still menaced.
The greatest happiness of the greatest number requires—that, for the drawing of any such draught, no reward at the public expense be given. At additional expense, reward none.
Of the above-described unexpensive plan, the advantages cannot be more clearly brought to view, than by bringing to view the several detrimental effects, produced or liable to be produced, by the expensive one.
In this as in other instances, where service is proposed to be called for, in behalf of the public, at the hands of individuals,—a natural enough conception is—that, by factitious reward, allotted to the purpose at the public expense, a proportionable degree of aptitude may probably be obtained for the work: a degree greater than could otherwise be obtained for it: insomuch that the higher the reward, the greater is the probability of the highest possible degree of aptitude.
On an attentive examination, so far will this be from being found to be the case, that by, and even in the direct proportion of the magnitude of such factitious reward, will the probability of the highest possible degree of aptitude be seen to be diminished.
From any such factitious reward, the following are in detail the evil effects that will be seen to be the result: effects either as detrimental to the degree of aptitude in relation to the work in question, or as productive of evil in this or that other shape:—
1.—Evil 1. The effect of the reward is—to give birth to so much expense: and it will immediately be seen, that this expense is not merely useless, but worse than useless. Say, Expense wasted.
2.—Evil 2. The tendency of the reward is to lessen, instead of increasing, the number of apt competitors: thence the probability of the highest degree of aptitude is lessened instead of increased. Say, Number of competitors lessened.
3.—Evil 3. The tendency of the reward is—to place the work in hands less apt, instead of more apt, than those in which it otherwise would have been placed. Say, Less, not more apt hands,—the result.
4.—Evil 4. The tendency of the reward is—to produce precipitate execution, thence comparative inaptitude, or else extra-delay, up to ultimate non-performance, according to the mode of payment in respect of time. Say, Precipitation, or else delay up to non-performance, the result.
5.—Evil 5. The effect of the reward is—to deprive the public of the benefit of all such works as, how useful soever, would not in point of extent be adequate to the desired purpose. Say, Useful, though not adequately extensive, performances, excluded.
6.—Evil 6. The effect of the factitious reward is—to lessen the number of the instances, in which, by the natural reward alone, proofs of aptitude for political service in various shapes would be brought to view. Say, Legislation school narrowed.
Now for a few explanations:—
Evil 1. Expense wasted.—True it is—that if, by increase of remuneration, any reasonable promise of a corresponding increase of aptitude were afforded,—the highest reward, that could with any chance of success be proposed, could not be too great. But, whether any such promise could be afforded may now be seen.
Evil 2. Number of competitors lessened.—It will be lessened by the non-appearance of all such otherwise apt competitors as by the apprehension of the want of interest (in the English phrase) of the want of protection (in the French phrase)—in a word, of the want of appropriate favour in the eves of those on whom the choice depends, will be deterred from entering the list.
By the introduction of factitious reward in the shape in question, the case would be rendered a case of patronage: of patronage, in the hands of the person or persons, on whom the choice of the individual or individuals to whom the service, with its reward, shall be allotted, depends. As to patrons, and their number,—they may be many, few, or one: the whole legislative assembly, for example, a legislative committee of the assembly, a council of ministers, the president of the legislation committee, or the minister of justice. With respect to the result in question, no one of these diversifications will make any considerable difference. In the eyes of every person in the situation of patron—in the eyes of every person in the situation of protegé,—the reward will, in the ordinary course of things, be at the least the principal object; the service, if an object at all, at the utmost a subordinate one. But, the greater the reward, the greater in all these several eyes will be the ratio of its importance to that of the service: the greater the reward, the less therefore will be the chance the service has of being in the highest degree well performed.
Evil 3. Less, not more apt, hands,—the result.—Unless any adequate reason can be shown to the contrary, the chance in favour of the best possible workmanship will of course be diminished by every diminution in the number of the candidates: and, the number of the candidates being (suppose) the same, the chance in favour of the best possible workmanship will again be diminished, by every diminution that can be shown to be effected, in the aggregate aptitude of all the candidates. But, for a work of the sort in question, the probability in favour of aptitude on the part of the workmen is rather diminished than increased, by that felicity of connexion, of which, as above, interest in the English sense, protection in the French sense, is the natural result. For superior aptitude in this line, the most intense and persevering habit of scrutiny and reflection, with a correspondent and adequate stock of information for the subject-matter of it, is not too much: and such habit is more likely to be persevered in, such stock more likely to be laid in, by one who, as the phrase is, has mixed little with the world—in the high world—in the aristocratical world in all its several orbs,—than by one who has mixed much. A person not known to the patron, whoever he be, cannot be an object of his choice: of those who are known to him, he who in his eyes is the most agreeable object, stands a better chance of experiencing his support, than he who, even in those same eyes, is in the highest degree possessed of appropriate aptitude, with relation to any such dry work.
True it is—that, to the apt composition of a work, by which the condition of all classes from the lowest to the highest is undertaken to be disposed of, while for its success it depends upon the state of the human mind in all those several classes,—opportunities for the observation of it should not, in the instance of any of them, have been altogether wanting. But, for this purpose, a slight intercourse will, in each instance, be sufficient: slight is the intercourse that will be sufficient to convince an attentive observer, that, where literary culture, intellectual and moral, has not been altogether wanting or deplorably misapplied, the degree of regard for the greatest happiness of the greatest number is rather in the inverse than in the direct ratio of a man’s elevation in the conjunct scales of opulence, power, and factitious dignity. The less the need a man feels of the good will of others, the less solicitous will be his endeavours to possess it, and, that he may possess it, to deserve it.
Evil 4. Precipitation or else delay, up to non-performance, a natural result.—Of precipitation, the effect as applied to the case in question is, as the term in a manner supposes, on the part of the work, inferiority of aptitude. In the instance of the most apt workman, the time allotted for the work not being sufficient for the purpose of giving to it so high a degree of aptitude as it would otherwise have possessed, aptitude in the work will, in a correspondent degree, be diminished.
If unnecessary delay has place, and in proportion as it has place—i. e. if the time allotted for the completion of the work, and thence for the receipt of the reward, is greater than what is necessary for giving to it its best chance for possessing the highest degree of aptitude—the difference, between the length of time appointed and the length of time that would have been sufficient, gives the length of time, during which the advantages resulting from the work fail of having place: which is as much as to say—the evils, that have place in the as yet existing state of things, continue unremoved.
If, in his view of the matter, the interest of the workman requires, that the work be performed with precipitation, with precipitation it will of course be performed: and from precipitation comes, as above, proportionable inaptitude.
If, in his view of the matter, the interest of the workman requires, that the task be performed with delay, with delay it will of course be performed: and if, in his view of the matter, his interest requires that it be not ever completed by him at any time, it will not ever be completed by him at any time.
Of these several cases, no one is altogether an imaginary one: of the one last mentioned, an exemplification will presently be brought to view: and by this one, exemplification in the case of the two others will be rendered unnecessary.
Had factitious reward in this case been regarded as necessary, and accordingly recommended,—a task that might here have been called for, is the showing by what course both these rocks might be avoided: and, for this purpose, the several possible modes of connexion, between reward and service, with reference to time, might have required to be brought to view in full detail. As it is, nothing more belongs to the purpose than what is necessary to the giving of a tolerably distinct conception, of the advantage in this respect possessed by the gratuitous, as compared with the stipendiary mode.
For exemplification, here follow a few of the most obvious modes, with the attendant evils:—
Mode 1. Payment none, till the service has been completed; and a time fixed, within which, on pain of non-payment, it must have been completed: Evil, actual or probable, precipitation; thence, on the part of the work, correspondent inferiority in the scale of aptitude.
Mode 2. Payment none till the service has been completed; but no such time for it fixed: Evil, actual or probable, precipitation, with inferiority as above.
Mode 3. Payment, the whole at once, made or (what comes to the same thing) secured, before any portion of the service has been rendered: Evil, actual or probable, delay; ending or not ending in ultimate non-performance, partial or total.
Mode 4. Payment going on while the service is rendering, or supposed to be rendering: Evil, delay, ending or not ending in non-performance, as above.
Mode 5. Payment, part of it made in a mass, beforehand, as above; other part in instalments, as last mentioned: as in the case of a pension, for a time fixed or not fixed, limited or not limited: Evil, delay, ending or not ending in non-performance, as above.
For illustration of all these several imaginary modifications, a single actually exemplified one may, it is believed, suffice.
Before me lies the unpublished, and even undenominated, yet assuredly authentic, plan of a still-existing official establishment for the production of an all-comprehensive code. State, Russia; year, 1804: aggregate annual amount of salaries, roubles of that time 100,000: pounds sterling, say 10,000: this, exclusive of the salaries of two master men, by one of whom auspices were furnished, by the other, labour, or the appearance of it: crowning salaries, over which, probably in consideration of their enormity and disproportionateness, a veil of secresy is spread. Of each salary, the whole, secured to each workman or alleged workman, so long as the work remained unfinished: the work finished, to each possessor an indeterminate chance for the continuance of a part, possibly even the whole of it. (See in page 33, article 16.) Such the adjustment of means to ends. Date, 4th of February 1804. In August 1821, no such code as yet, either in whole or in part: interval, 17½ years: exclusive of the unknown additions, money expended, unless engagements have been violated, £170,000.
Suppose all such factitious reward out of the question, none employed but in the natural and unexpensive shape, proposed in the last preceding section, danger is, in all the several above-mentioned shapes, either excluded, or at least lessened. A time (suppose) is fixed: nor can such fixation be easily avoided. Each competitor, if, to his own satisfaction, he is able, will complete his work by the time. But, if not in this degree able, he will not on that account give up the pursuit: he will either send in his work, although it be in what to him appears an incomplete or otherwise imperfected state, and thus take his chance for acceptance in the first instance; or, leaving it to others to send in their works by the time, send in his own afterwards, in the hope of its presenting matter capable of being employed in the way of amendment to whatever draught shall have received the stamp of authority. In either case, appropriate aptitude, in whatsoever shape and degree possessed by him, will have been displayed: and, with or without the honour of being aggregated to the body of the law, the produce of his labour will serve as evidence of his aptitude for official situation, in this or that other and more tangibly profitable shape.
Evil 5. Useful, though not adequately extensive, performance excluded.—The evil that presents itself in this shape has just been brought to view.
Evil 6. Legislation school narrowed.—In whatsoever shape and degree appropriate aptitude, with reference to the sort of work in question, may have been displayed, the demand for fresh exertions in the same line can never be altogether made to cease. Not even with reference to the time, be it what it may, at which it has received the stamp of authority, will any draught, either in universal opinion or in its own nature, possess the attribute of absolute perfection: and, even supposing it possessed of that super-human attribute with reference to that moment of time, fresh times, with correspondent states of things, will continually be presenting more or less demand for change. Such will be the case, perhaps, as long as, in any community whatsoever, the species continues in existence. But at the present moment, at how vast a distance, in the best organized community, is the state of things from that ideal point!
In respect of form, including method and expression, absolute exemption from all need of change is not by any means so completely ideal as in respect of substance. In respect of method, there will be seen to exist in this case, in the line of aptitude, a point at which the problem of the highest degree of that quality will have been solved: solved, in such sort, that whatever shall from time to time come to be the changes made in respect of substance, no further advantage remains to be obtained from change in respect of method. Even in regard to expression—expression given to the substance, such as it is at the time in question—this point may not be absolutely unattainable, though the time of its attainment will not arrive so speedily in this case as in the other. But, as substance changes, expression undergoes of necessity a correspondent change. Meantime, in regard to such men as from time to time shall have succeeded in obtaining this or that change in respect of substance, the nature of the case admits not of any sufficient assurance that they will all of them be at all times willing, and at the same time able, to give to the new matter a mode of expression, or even a method, corresponding in every point with that which it found in existence.
Here, then, comes the demand for the sort of scientific skill alluded to in the last section: and to a supply of this skill, the legislation school herein described would give commencement; and, after commencement, continuance: but, to the establishment of this legislation school, the perfectly open competition above described has been shown to be necessary.
Supposing these objections to the remuneration plan well-grounded and conclusive, in no state of things can they be useless: in no state of things can a plausible demand for inducement in this shape be altogether wanting. For example, take the case of a legislation committee. By no such body (it may indeed be said,) nor by any member of it, can remuneration in any shape be expected or received: to no such portion of itself could the legislative body at large propose to make any such allowance. True. But if a rationale is to enter into the composition of the work, it has been seen how plainly impossible it is that this extraordinary business should, by any man or men in that situation, be carrying on at the same time with their part in the ordinary business: always remembered that the time within which it must be completed by them stands limited to two years: that being the utmost time anywhere allotted for the continuance of their authority. This being supposed,—then, if the work is to be executed at all, comes the necessity of turning it over to other hands. Thereupon, in a manner altogether natural, comes in the proposal of a remuneration. Custom and shame would have concurred in forbidding the offering any such boon to their own hands; but, this being a public service, custom would seem to require, and shame would not forbid, their offering it to other hands. Hereupon comes the necessary question, as above—in what patronizing hands shall the choice of the operative hands be lodged? and, let the answer take what shape it may, then come the evil consequences that have been brought to view. Patronizing hands—say, those of the legislation committee—say, those of the legislative body at large—say, those of the chief of the state: in a monarchy, the monarch’s; in a representative commonwealth, the president’s: time of payment, in the whole or in part—say, antecedent to the commencement of the service—say, concomitant with the service—say, posterior to the conclusion of the service: under no one of all these modifications will the result stand clear of the evils above specified.
The greatest happiness of the greatest number requires—that every draught, so given in, be, from beginning to end, if possible, the work of a single hand. Hands not more than one.
On a nearer inspection, this position will be found composed of two distinguishable ones: two, which, standing on different grounds, will, at the outset, require to be distinguished. One is—that each part, considered by itself, should be the work of not more than one hand: the other is—that, whatsoever be the number of the parts, they should be, all of them, if possible, the work of that same single hand.
In regard to each part taken by itself,—the ground on which the position stands is—that of moral aptitude: two, or any greater number of workmen, will not be so effectually disposed to take the greatest happiness of the greatest number for the object of the work, as any single one of them would: comparative want of appropriate probity is the cause of the inferiority in this case. In regard to the several parts taken together,—the ground on which the position stands is—that of intellectual and active aptitude: two, or any greater number of workmen, all equal in good intention and skill as above, but taking each one of them a different part of the work, will not render it so well adapted to that same end as any one of them would, supposing him to execute the whole. Want of consistency in the workmanship, is the cause of the inferiority in this case.
I. In the case of each part, taken by itself, let us now see in what manner appropriate moral aptitude on the part of the workman, and thence aptitude on the part of the work, as far as depends upon such aptitude on the part of the workman, are affected by the number of the hands.
Upon the efficiency of the inducements, whatever they are, by which the workman is prompted to render his work as highly contributory as possible to the greatest happiness of the greatest number, in despite of all temptation offered by sinister interest in all its several shapes,—will depend, so far as depends upon moral aptitude on his part, the degree in which the work will be contributory to that same all-comprehensive and only justifiable end. But, it is by the power of the popular or moral sanction, as applied by the tribunal of public opinion, that these inducements, whatever they may amount to, have to be applied. In the case of this, as of every other sanction, it is of the anticipation, either of eventual evil having the effect of punishment, or of eventual good having the effect of reward, or of both together, that the inducement will consist.*
Let us first see the effect of multiplicity in this case, in diminishing the power of the tribunal of public opinion, in so far as depends upon the influence of evil having the effect of punishment; diminishing, in a word, the degree and the efficiency of responsibility.
1. The greater the number of the workmen concerned in the work, the greater is the difficulty of knowing, in case of bad workmanship, who are to blame, and which is most to blame.
Say even that the number is no greater than two: still, in regard to blame, everything is in the dark: in regard to each distinguishable part, by which of them it was brought forward: from which of them it received the most strenuous support: in the giving support to it, what were the arguments—what the other means, if any, that were employed.
2. The greater the number, on whom, on this as on any other occasion, disapprobation falls, the lighter it falls and sits on each. It keeps floating as it were in the air, not knowing where to settle; and no sooner does it attempt to alight on any one, than, like a shuttlecock, it is driven back again, or driven on against another.
3. The greater the number of the workmen, the more ample and efficient is the aggregate of the support which the unapt work will be apt to receive everywhere, in the legislative body, and even in the nation at large, notwithstanding its inaptitude. For, the greater the number of the workmen, the more extensive will be the aggregate of their several connexions; and, the more extensive as well as the more influential those connexions are, the more efficient will be the support which they will afford.
The reputation of the bad workmen will be supported by them and their connexions for the sake of them and their connexions: and for the sake of their reputation, the reputation of the bad work will be supported. For a protection to particular arrangements inimical to the interest of the greatest number, rules of judging inimical to that interest will be devised and circulated. Also, for the sake of ulterior bad arrangements, bad principles—the fruitful seed of such bad fruit. Everything that is most inimical to the greatest happiness of the greatest number, does it not find in one single word, legitimacy, one of its most efficient supports?
Of the tribunal of public opinion, there may be seen in every country two sections: the democratical, and the aristocratical. In each section, the judgments of the tribunal are of necessity determined by the interest of the judges: by what are, or if there be any difference, by what are supposed by them to be, their interests. In relation to every such work, and the conduct of the workman or workmen on the occasion of it,—the judgments of the democratical section of this same tribunal will be more or less favourable or unfavourable, according as that same work and that same conduct are regarded as being more or less contributory or detrimental to the greatest happiness of the greatest number: of the aristocratical section of that same tribunal, the judgments will, in relation to that same work and that same conduct, be more or less favourable or unfavourable, according as they are respectively regarded as being contributory or detrimental to the greatest happiness of the ruling and influential few, whatsoever may become of the happiness of the subject many—the altogether uninfluential or less influential many. To the aristocratical section of this same tribunal can scarce fail to belong, in the case of the sort of work here in question, whatsoever workmen are occupied in the composition of the work. The greater the number of these same workmen, the more efficient therefore is the support, which, in the legislative body, a draught drawn by such hands is likely to receive—to receive, in whatsoever degree it may have been rendered unapt with reference to the greatest happiness of the subject many, by attention paid to the particular and sinister interest of the ruling and influential few.*
Thus much as to the influence of a multiplicity of workmen, in diminishing the efficiency of the punitory power of the tribunal of public opinion, as operating towards the suppression of bad works. Now as to its influence in diminishing the efficiency of the remuneratory power of that same tribunal, as contributing by its general influence to the production of good works:—
1. In regard to the whole—the general complexion of it being by the supposition meritorious—in regard to each several arrangement contained in it, the greater the number of the workmen, the greater will be the difficulty, in distinguishing from those, if any, to which no share, those to which some share of the honour is due; and, among these, in distinguishing to whom the greatest share is due.
2. The greater the number of the workmen, the less the share which each one of them has in the aggregate mass of the honour bestowed upon the work. On him to whom it is indebted for the greater part or even the whole of the aptitude displayed by it, it may happen that no more honour shall be bestowed, than upon him to whom it is not indebted for any more than the smallest part, or than upon him to whom it is not indebted for any part. From him whose share in the merit is greatest, more or less of the honour may thus be drawn away, by the others and their connexions. In its endeavour to fix upon the proper person, and in the proper proportion,—honour, from causes correspondent and opposite, will find as much difficulty in this case, as dishonour in the opposite case. Number of colleagues, suppose five: parts taken by them, suppose undistinguishable. Here, then, he who had most of the merit, or even the whole of it, may, instead of the whole of the honour, have no more than a fifth part of it.
Thus, by means of the multiplicity of the hands, will the probability of the ultimate adoption of the most apt work be diminished, as it were, at both ends: diminished by the conjunct operation of the two opposite moral forces: of the inducements to bad workmanship, the force will be increased—of the inducements to good workmanship, the force will be diminished.
Another circumstance there is—by which, more particularly in a case such as the present, by and in proportion to the number of the working hands, the probability of bad workmanship, and the probable badness of it, are increased. So many workmen, so many individuals, by each of whom a particular sinister interest of his own may be possessed; and, in the texture of so vast a whole,—arrangements, indefinite in number, extent, and importance, inserted: inserted, under favour of that exclusory initiative, which would be done away by the above proposed open mode. On this as on every other occasion, each particular interest will of course be using its endeavours to make provision for itself, at the expense of all opposing interests. The interests, which each of these workmen will find standing in collision with and in opposition to his own, are the universal interest, and the several particular interests of his several colleagues. Of his own particular interest, or that of any particular connexion of his, no one of them all will willingly consent to make sacrifice: if at all, not without a degree of reluctance proportioned to his conception of the importance of the sacrifice: at the same time, in regard to sacrifice of the universal interest, scarcely in the breast of any of them will the degree of reluctance, if any, be so great. Why? Because, in the close situation here in question, independent of public opinion every one of them is; no one is so of any of his colleagues: thus circumstanced, his own interest no one will sacrifice to the rest; the public interest, every one. As to proportions, true it is—that, in respect of influence, wheresoever operating—whether within doors or without—whatever be the number of these collaborators, no such assurance as that of an exact equality can have place. Power, opulence, talent, reputation—in every one of these may be seen an efficient cause of influence: and in regard to each of these, in how ample a scale gradations may have place, is sufficiently manifest. But, in a small knot of men, each of them so circumstanced, that for an indefinite length of time it may be in his power at every turn to stop the course of the rest, another instrument of influence there is, and that is pertinacity:—in the language of those by whom, on the occasion in question, the exercise given to it is not approved—obstinacy: an instrument, the influence of which is capable of being full as great as that of any of the four others: but, proportioned to pertinacity on the part of one individual is vexation, or say annoyance, on the part of the rest: annoyance, and thence the amount of the sacrifice in all shapes, which each of them is willing to make, on condition of being rid of it. In an English jury, with this single weapon, how often has not one man overpowered eleven others!
Interest—sinister interest, has here been mentioned for shortness. But interest-begotten prejudice, authority-begotten prejudice, habit-begotten prejudice, and inbred intellectual weakness, are, each of them, not less capable of suggesting arrangements inimical to the greatest happiness of the greatest number, and at the same time of giving birth to pertinacity, not always less intense than such as is produced by sinister interest.
By means of the vitiating influence of the multiplicity so often spoken of,—suppose an unapt work produced in a legislation committee,—proportioned, in this case, to the degree of confidence reposed in that select body—in that selection of the select—will be its probability of making its way through the several other appropriate authorities:—not to speak of the national mind at large. True it is—that if by the members of the legislative body at large, it be seen or supposed to be, in this or that part, adverse to their respective particular interests—true it is, that, in those parts respectively, any such alterations as seem well adapted to the rendering it conformable to those same interests, will willingly enough be made in it. But, so far as, in those parts of it which are adverse to the universal interest, nothing particularly adverse to these same particular interests happens to be observed,—the confidence, the existence of which stands demonstrated by the choice made of the members of that same select and close body, will naturally prove sufficient to carry it, without considerable opposition, through the body at large. Such will be the case, where the sinister arrangements introduced into the original draught by the sinister interests of the several workmen of all classes are simply not unfavourable to the particular interests of the members of the body at large: much more surely in so far as they are seen or supposed to be decidedly subservient to these same particular interests. To the situation of the monarch, where there is one—of the monarch, his subordinates, dependents, and partisans, these same observations may of course be seen to have equal application. And thus, under a form of government, having for its declared end in view the greatest happiness of the greatest number—thus, by the conjunct predominance of a cluster of particular and sinister interests over the universal interest, may existence come to be given—given even to a sanctioned work—as inimical to the greatest happiness of the greatest number, as even to that proposed, but happily not yet adopted, penal code, with which the Spanish nation was so near being afflicted.
Note, that in this close mode, any number of stages of subordination as between workmen and workmen may have place: in each stage, any number of workmen, and on the part of each, with or without observance and consent of superiors, this or that pernicious suggestion, of sinister interest, interest-begotten prejudice, authority-begotten prejudice, or inbred intellectual weakness, may have slipt in, and contributed to give their increase to the aggregate mass of inaptitude in the work.
In each stage, in the breast of each individual, contributing or not contributing labour, but in either case exercising influence, there will be two distinguishable masses of particular and sinister interests, in perpetual action against the universal interest: namely, 1. Whatsoever sinister interests may chance to appertain to him in his individual capacity. 2. Whatsoever particular and sinister interests appertain to whatsoever particular class or classes of men he happens to belong to: and, to the same man it may happen to belong, at the same time, to little less than the whole number of the classes included in the aggregate of the aristocratical classes.*
Suppose even the case to be that of a commonwealth, altogether clear of monarchy, or a monarchy in which the monarch has no share in the legislative power. The workmen, on whom, in the first instance, the texture of the work depends, will in this case be the members of a legislation committee. The sinister interest, here predominant, will be the interest of the legislative aristocracy: and, in the breast of each member, whatsoever other branches of the aristocracy it happens to him to belong to, to his larger sinister interest will be added those their several smaller sinister interests. As to the sinister interest belonging to the legislative aristocracy as such, it is an object, the existence of which is obvious and undeniable. What it prompts to is—the giving, to the aggregate mass of emolument, power, and factitious dignity attached to the executive branch of the government, the utmost magnitude possible, that, in their own persons, or those of their respective connexions, the shares obtained and enjoyed by the members of this legislative branch may be proportionably abundant.
As to the other branches of the aristocratical interest—of itself, no one of them can do anything for itself. But, with the assistance of the legislative branch, they may, each of them, do anything. The sinister interest, common to the legislative body, has therefore, for its natural ally and supporter, the sinister interest of every one of those other branches.
To the reader, according to the constitution of the political state he belongs to,—to the reader it must be left, to take note and observation of these several stages: with the present design, no such detail would be compatible.
II. Lastly, as to want of consistency. This, to an extent more or less considerable, has already been stated as an evil that will unavoidably have place, if by one workman one part of this great whole be executed, by another workman another. Moreover, what is sufficiently evident,—the inconsistency of the whole will be the greater, the greater the number is of those same parts executed, each of them by a different hand.
Vast is the diversity of design incident to so vast a work: vast again is the diversity incident to the mode of execution: correspondent to the diversity in both, will be the diversity that can scarce fail to have place in respect of the leading terms. If he who is occupied in the penal code is not at the same time working on the civil code,—neither in respect of method, nor thence in respect of language, will the one fit in to the other: and so, as between the compound of these two codes, compared with the constitutional code. Much to be regretted will, at the least, be the obscurity and ambiguity that will ensue: proportionable the change, which, in one or both, will be necessitated: unless for the affliction of the subject citizen, these two so intimately connected imperfections be suffered to remain unremedied. In this state of things, if, of two of these parts, namely, the penal code and civil code, one be allotted to one of two draughtsmen, the other to the other, what will be to be done? Upon the coming in of the two draughts, even supposing the approbation bestowed upon them ever so exactly equal, a necessity will be seen, for taking one of them for the groundwork, and altering the other in such sort as to make the several portions of it to fit in to the corresponding portions of the first. But, to the difficulties that would be attendant on any such operation, or the time that would unavoidably be to be expended on it, no limits can be assigned: while, by the simultaneous and all-comprehensive mode of operation here proposed, all such difficulty, with its attendant delay, is of course avoided.
So, as between the main body of the law, or say system of substantive law, and the system of the law of procedure, or say system of adjective law, included in each such part as above. In each part, the adjective branch has for its object and business the giving execution and effect to the substantive branch. Conceive now, in the penal and civil parts, taken together or separately, a system of procedure, having for its object the giving execution and effect to a system of benefits and burthens, of rights and obligations, the forms and denominations of which remain to be determined: the system of substantive law, the production of one workman; the system of procedure, which is to give execution and effect to it, that of another: both works going on without concert at the same time. In such a state of things, in what case is he, to whose lot it falls to pen the system of procedure? Instead of seeing the system of offences as exhibited in the penal code, and that of the efficient causes of rights and obligations as exhibited in the civil code, he is reduced to grope for all those objects in the dark in the region of conjecture.
The greatest happiness of the greatest number requires—that such original draught, being the work of a single hand, be known to be so. Hand, known to be but one.
Reason. Else, neither of the inducements to good workmanship afforded by the singleness, will have place.
Suppose that, the case really being, that, in the composition of the work in question, no more than one workman has had anything to do,—a notion, however, has place, that another, or others, in whatsoever number, have each of them borne a part in it. In this case, as to what depends upon the responsibility,—the tutelary force of the bridle it applies, on the only existing workman, is by those imaginary collaborators lessened, as much perhaps as it would be by so many real ones. As to what depends on the honour and the encouragement it affords, this too is in much the same case. So many imaginary assistants, of so much of the honour is he a loser, though there is no one by whom it is gained.
True it is—that, to the evil of want of consistency on the part of the work, this circumstance has no application. Suppose the parts of the work executed, all of them, by the same hand,—no want of consistency will be produced in it by the erroneous supposition of their having been executed by different hands. But of the two evils, this, it has been shown, is the minor one.
The greatest happiness of the greatest number requires, that the work, being the work of a single hand, and known to be so, it be known whose the hand is. Hand, known whose it is.
Reason. Else, as above, neither of the inducements to good workmanship will have place.
Only in so far as it is known who the workman is, can the work be known to be the work of no more than a single hand. As to knowledge, true it is—that, strictly speaking, no such thing is here possible. In addition to the declared workman’s own declaration, all that, in relation to the matter, can be absolutely known, is—that by competent authority, a suitable declaration has been made—a declaration (suppose) to this effect:—“This man” (naming him) “is the man, by whom alone this draught” (naming it) “has (we believe) been penned.” On the other hand, if the declaration were no more than to this effect—“The work is the work of a single hand,” the hand not being named, the circumstance of the concealment would be apt to operate in disproof of the fact in question—of the fact thus mysteriously and imperfectly declared.
Suppose now, that, notwithstanding both these declarations, so it is, that the individual whose work the draught is declared to be, had not really borne any part in it. Still, however, so far as depends upon responsibility, here is an individual on whom it attaches, and in its entire state.
Lest it be supposed to have been overlooked is this case brought to view, rather than on account of any such importance as seems attached to it. In a case such as the present, no great probability seems to belong to any such supposition as that of a fraud, concerted between two persons, a real workman and a pretended one, of whom the real one shall have found adequate inducement, for foregoing the honour of a work of this sort really his, and for being at the same time accessary to a solemn falsehood and imposture,—while the pretended workman, for the sake of that same honour, shall have found adequate inducement for exposing himself to his part of the dishonour of that same falsehood and imposture.
The only case that presents so much as the faintest colour of probability seems to be this:—For the hope of remuneration in the naturally attached shape above mentioned,—an individual, having interest, or say protection, without aptitude, engages another, who has aptitude without protection, to execute the work, and assign over to him the honour of it, with the looked-for consequences. In certain schools and colleges, this sort of traffic has not been altogether an uncommon one. In the present case, if the danger were thought worth combating at such a price, it might be pretty effectually excluded by a public examination, to which, previously to his entrance upon any office of the sort in question in remuneration for his legislative draught, the declared author should be subjected.
Remains the case, where, by one individual, by whom the principal part in the work has been borne,—assistance, in one shape or other, has been derived from the labours of others, in what number is not material: he at the same time declaring himself by name as the workman, by whom the work has been executed, saying nothing of any others. This case presents itself as being a completely natural and probable one. But, in this case, the grand point—the responsibility—is sufficiently secured: and, as to the honour—the encouragement,—if, for the sake of the assistance in question, the only individual interested is content to part with more or less of it, the public service profits by the exchange, and no individual suffers by it.
The greatest happiness of the greatest number requires, that, for the drawing of the original draught, all foreigners be admitted into the competition: and that, in so far as applicable, unless it be in all particulars taken together decidedly inferior, the draught of a foreigner be employed in preference. Hand, a foreigner’s preferable.
That, on this occasion, admission should be given to all foreigners has been shown already: for all foreigners are men.
What remains here to be shown is—that, for the original draught, aptitude in other points equal, the hand of a foreigner is even preferable to that of a native; and, on that account, to bespeak attention for any such draughts, as chance may have drawn from any such hands. Nor is the position altogether superfluous: only in proportion as attention is bestowed upon the work, can any admission given to it be of use.
On this occasion, again, as on every other, if a solution be desired of the question concerning the probability, absolute or comparative, of appropriate aptitude, it must be considered separately and successively, with reference to the several elements of which such aptitude is composed.
I. As to appropriate moral aptitude. Note on this point, how superior the ground is on which the nature of the case has placed the expectation of pure service at the hands of a foreigner as such. In both situations, the obligation, of including in the work a perpetually interwoven rationale, will have been a most substantial security. In both situations, with or even without a rationale, the principle of universal admission and that of singleness in workmanship, will have been two additional securities. Still, however, in the case of the native, there will be the swarm—the unascertainable and incalculable swarm—of personal connexions; thence of particular and sinister interests and affections; from the irresistibly-tempting and seductive influence of which, the situation of the foreigner bespeaks him free.
For giving effect to these same sinister interests and affections, the native would, in those same connexions, find a support more or less extensive and efficient: the foreigner, no such support.
Supposing him employed,—the foreigner will naturally, if any attention at all be paid to his draught, be an object of more notice than the native, and thence of proportionable jealousy:—he will be more closely watched: of any sinister interest or affection, supposing him under any such dominion, any bad effects will, in a corresponding degree, be more likely to be held up to view and obviated.
II. Next, as to appropriate intellectual aptitude. On the present occasion, this element of appropriate aptitude will require to be further decomposed: decomposed into appropriate judgment and appropriate knowledge.
1. As to appropriate judgment. In regard to this branch of appropriate intellectual aptitude, on the occasion of the question as between a single hand and divers hands, mention came to be made of the erroneous tracks into which the pen of every such draughtsman stands exposed to be led, by prejudice in different shapes: thence, the probability of correspondent aberiations, on the part of the work, from the all-comprehensive end so often mentioned. These prejudices will, to a large extent, be of a local nature: peculiar, in degree of strength at least, if not in kind, to the country in question. From the influence of these causes of error, while the native labours under it, the foreigner stands free.
The foreigner will, indeed, have his prejudices to contend against, and in particular his local prejudices. But here, as in the case of interests and affections, while those of the native will find support in the prejudices of all around him,—for those of the foreigner, not only will there be no such support, but there will be opposition: opposition, by the supposition, from reason,—and moreover from counter prejudices.
2. Next remains to be considered, appropriate knowledge.
In relation to this branch of appropriate intellectual aptitude, the native, it is true, in the ordinary state of things, possesses an advantage: an advantage alike obvious and unquestionable. On his part, extent of acquaintance with the local and other peculiar circumstances of the country in question, is at its maximum: on the part of the foreigner, at its minimum.
Supposing appropriate aptitude in all its other elements exactly equal on both sides, the advantage of the native under this head would therefore, obviously and unquestionably, be sufficient to turn the scale in his favour, and put an exclusion upon the foreigner altogether.
But, for the reason already brought to view, it will have been seen—whether, individuals out of the question, and situation being compared with situation, in the several articles of appropriate moral aptitude, and appropriate judgment, the superiority be not, and in no inconsiderable degree likely to be, on the side of the foreigner.
From his inferiority in the scale of appropriate knowledge, as above particularized, no objection whatever to the placing the business in his hands will be found to result. For, in the first place, the importance of the deficiency in his case is not so great as it will be apt to appear: in the next place, be it what it may, a complete supply to it stands assured—assured, from the authority, to which his draught will of course be referred.
1. In the first place, the deficiency is not so great as it will be apt to appear.
Of the circumstances on which the demand for legislation, and the nature of the course required to be taken by legislation, depends,—some are common to all countries, to all races of men, and all times: say, in a word, universally applying circumstances: others are, in different countries, in the case of different races of men, and in different times, more or less different; say, exclusively applying circumstances.
In comparison of the universally-applying, the extent of the exclusively applying circumstances will be found very inconsiderable. Moreover, throughout the whole of the field, the exclusively applying circumstances will be found to be circumscribed as it were by, and included in, the universally applying circumstances. The great outlines, which require to be drawn, will be found to be the same for every territory, for every race, and for every time: only in this or that territory, only for this or that race, only for this or that time, as distinguished from this or that other, will the filling up of those lines be found to require to be, on this or that point, more or less different. In every country, and for every race, at every time,—of the all-comprehensive and only defensible end—the greatest happiness of the greatest number—of the four most comprehensive particular and subordinate ends, viz. subsistence, abundance, security, and equality—with their several divisions and subdivisions, will the description be found the same: only of the means best adapted to the accomplishment of those great ends, in this or that country, or for this or that race, at this or that time, will the description, in this or that particular, be found, in a greater or less degree, different.
On pursuing the inquiry further and further into the region of particulars, the result will still be found the same. The same, in every country, for every race, and at every time, will be found the misdeeds by which security is liable to be affected; the classes and genera, of the names of which the list of those misdeeds will require to be composed; and the definitions, by which the points of agreement and difference as between one genus of misdeed and another, as well as between each of them and innocence, or (what will come to much the same thing) unpunishableness, will require to be determined and expressed. In this or that country, in the case of this or that race, at this or that point of time,—circumstances may indeed afford room for producing injury, in this or that particular shape, in which, in this or that other country, in the case of this or that other race, at this or that other time, man is not exposed to it. True. But the species of mischievous act to which the mischief, when in this particular shape, may be said to belong, is a species, which, upon observation, will be found comprehended in a genus of injury, to which, in every country, men of every race stand at all times exposed.
Thus, a corporal injury will be an injury everywhere, and to every human being. But, in Hindoostan, for example, to the feelings of a certain race, corporal injury is produced, by a species of contact, by which no injury would be produced in any part of Europe.
So again in regard to simple mental injuries: including so many various forms of as yet undenominated injury, which have their seat nowhere but in the mind. By a portion of audible discourse, or by a visible exhibition, by which contempt is expressed, for opinions, to this or that effect, entertained in relation to religion,—pain of mind is liable to be produced. According to the amount of it, in the case of pain produced from this source, as in the case of pain produced from any other,—the act, by which it is produced, may, under certain circumstances, be with propriety regarded and dealt with as injurious everywhere: but, in some countries, and in the case of some persuasions on matters of religion, the description of the thus injurious discourse, or exhibition, will be of one sort; in others, of another.
Of the distinction between those universally applying and these exclusively applying circumstances, the above examples will, it is hoped, be found to afford a conception sufficient for the purpose. The distinction is capable of being carried, and in the proposed code will of course be carried, throughout the whole field of legislation. In this place, to pursue it further, would be to force so much of the matter belonging to the proposed code, into a slight preliminary sketch extraneous to it.
Such being the distinction, now for the application of it to the case in hand. Of whatsoever country the draughtsman be a native, these circumstances, which are of universal occurrence and applicability, may be equally and perfectly present to his notice. For those shades of difference, which are peculiar to his own country, the native, as compared with the foreigner, will be—if not exclusively, at least preferably, qualified. But, suppose two men, the one a foreigner, the other a native, and the foreigner more fully conversant with the circumstances of universal occurrence than the native,—and in all other particulars better qualified for making, throughout the whole field of legislation, that provision which those same circumstances require,—this supposed, that which without much difficulty may happen is—that, even in regard to these same particular circumstances, it may be in his power to afford to the work a degree of aptitude, such as, but for him, could not have been possessed by it.
For though, by the supposition, so far as depends on particular arrangements conceived in terminis, he is not competent to the filling up of the outline;—yet, by virtue of his comparatively greater command over the whole field, it might be in his power, by means of instructions furnished by him in general terms, to afford, to any natives, on whom the task devolved, superior assistance: assistance, of such sort, as should enable them to give a more apt execution to it, than without him it would have been in their power to give to it. In their power—not to speak of their inclination: for, considering the atmosphere of sinister interest and prejudice, in which (as hath been seen) all native functionaries, as such, have to live and move,—this is a distinction which should never be out of mind.
II. In the next place, to the deficiency, be it what it may, a complete supply stands assured.
The hands from which, of course, it will in the first place be received, are those of the legislation committee.
To the aptitude of the supply from this quarter, one moment may present an objection, but another will dispel it.
By the supposition (it may be said) these natives will be labouring under those causes of inaptitude—those sinister interests and affections, as well as prejudices—by which their appropriate aptitude, as well in point of moral aptitude, as in point of appropriate judgment, is, according to you, placed so much below that of the foreigner. True: but, by that same supposition, the draught—the groundwork, which they will have to work upon—is a draught, not drawn by their own hands, nor by those of any other native, but by the foreigner: and it is by him that it has been furnished with its rationale. In the outline, then, of his drawing,—with or without the inspection above spoken of, will they find a check to, and a security against, the effective predominance of those same sinister interests, and other causes of inaptitude.
In a word, in section 5, under the head of universality of admission, it has been shown—with how promising a degree of efficiency the proposed open mode, with its string of rationales, will apply to the mouth of the man in power, the only bridle which the nature of his situation admits of: in the case of the foreign draughtsman, this bridle will afford the same security as in the case of the native.
Now as to all elements of appropriate aptitude taken together.
For the direct and appropriate use made of it,—the work, whatsoever be the workman, will depend altogether upon the constituted authorities, and in particular on the legislative body. But, in regard to this use, two things may be stated as altogether certain: 1. That they will not give adoption to it, unless in their own judgment it be decidedly more apt than any draught sent in by a native workman; 2. That neither will they thus make it their own, unless, in their own expectation, the like opinion will be entertained of it by the people at large. For, on their own part, what other inducement could they find for giving to it any such acceptance? If, in their view, though equal, it were no more than barely equal, to the most apt work produced by a native hand—in this case, interest, prejudice, affection in all manner of shapes, would concur in urging them to give the preference to the work of their fellow-countryman: and if, in their minds, any serious apprehension should have place, lest, after obtaining acceptance at their hands it should fail of being generally acceptable to the people,—by what adequate inducement could they be brought to hazard the good opinion of their constituents, by fastening upon their necks any such work?—a work which, in the nature of the case, could not be contributory to the greatest happiness of the people in question, any further than it were thought by them to be so.
How intimate the connexion is between the two questions—between that concerning admission and this concerning preference,—is sufficiently manifest. The truth is—that it is rather for the sake of the question concerning admission, than for its own sake, that the question concerning preference is here argued. What is meant to be said to the reader is to this effect:—“Fear not to give admission to the foreigner’s draught: for if, in its proposed character of a basis for the sanctioned code, a draught, having a foreigner for its author, and having, as here proposed, been admitted, comes to be adopted,—the probability is—that, so far from being in the scale of aptitude inferior to the most apt draught sent in by a native, it is, in a high degree, superior.”
So again in regard to preference. If (says somebody)—if, as you have said, it is only in case of its being regarded as considerably superior in the scale of aptitude that it is likely to be preferred, and if at the same time it is in that case likely to be preferred,—to what use plead for the position, that if it be but equal in aptitude to the most apt of those sent in by natives, it is entitled to the preference? The answer is—the observations here may be considered as made to each reader individually: and on that supposition I say to each—If among the several draughts there be one which, being a foreigner’s, is in your eyes equal in aptitude to the most apt of all such as are sent in by natives,—fear not to give your suffrage in favour of it. Why? Because, unless in the legislative body a general persuasion has place—not only that it is more apt than that of any native, but that it is likely to be regarded as such by a majority of the people,—it will not be adopted:—therefore, supposing the draught ever so unapt, there is no likelihood, that any vote you can give in support of it will be attended with any pernicious consequence.*
On the part of an individual, proposing himself as draughtsman for the original draught of a code of laws, willingness or unwillingness to interweave in his draught a rationale as above, is the most conclusive preliminary test, and that an indispensable one, of appropriate aptitude in relation to it. Willingness as to rationale, draughtsman’s test.
The four grand points in question, are (it has been seen) the proposed all-comprehensiveness of the work—the rationale proposed to be interwoven in it—the universality of the admission proposed to be given to all competitors for the honour of furnishing the original draught—and the choice of a single workman for the work, to the exclusion of every greater number. If what has above been said in relation to the usefulness and importance of these several points has proved satisfactory,—the position, which forms the title of the present section, will already have received its proof: if not, nothing further, that can with propriety be ranked under this head, affords any promise of being of use.
On the constituted authorities alone (it may be observed, perhaps) will depend the course taken, in relation to all these several points, and in particular that which regards the rationale: and on that account, willingness or unwillingness on the part of individuals was not (it may be thought) worth speaking about. But, supposing a work of this sort in contemplation, volunteers may, for this as for any other branch of service, be, without much strain upon the imagination, expected to offer themselves, antecedently to any determination taken by the legislature. On this consideration is grounded the invitation here given, to all whom it may concern, to consider—whether, in comparison of the workman who is willing to give this security for good workmanship, any one, who is not willing to give it, has any pretension to be heard.
On the part of a ruler, willingness or unwillingness to see established an all-comprehensive code, with its rationale as above, and to receive original draughts from all hands, are among the most conclusive tests of appropriate aptitude, in relation to such his situation. Willingness, as to rationale and universal admission, legislator’s test.
That which, in a less pointed manner, has been applied to the situation of proposed draughtsman, will be seen to apply, in a more pointed manner, to the situation of actual legislator.
Whence comes it, then, that in the Anglo-American United States—whence comes it that, under the only form of government which ever had, or ever could have had, for its end in view, the greatest happiness of the greatest number,—the constituted authorities have been so generally, though happily not universally, shrinking from this test? The answer shall be given in the words of two of them. See Testimonials. VII. 1 & 2.
What the sacrifice is that is involved in the endurance of this test cannot have passed unobserved. How much easier any such sacrifice is to propose than to bear a part in, must have been alike manifest. But—the greater the difficulty, the greater the glory: the greater the difficulty, the smaller the number of those, whose magnanimity enables them to surmount it, and the more exalted that virtue, to the embrace of which so few will be able to aspire.
[* ]Take a man who has hitherto belonged to the class of dupes: if, in his body, he has a mind capable of reflection, and will allow himself a little time for making use of it, the following considerations may serve him for a clue. By words such as state of things, event, things immoveable, things moveable, action, forbearance, misdeed, obligation, command, prohibition, permission, condition, right, punishment, reward—by these, with the addition of a few others, not only has the whole field of legislation, but the whole field of possible thought and action, been covered. Well then, if by these, why not by others of less extensive imports?—of imports included in the imports of these several words respectively? by others of this or that less extensive import, according as the occasion serves?
[* ]A medicine, in so far as it produces the desired effect, is an instrument of exemption from certain pains. An instrument of political security in any shape, is an instrument of exemption from certain pains. Of the one as of the other, the value, at any point of time, is as the sum of the pains it has exempted men from, deduction made of the pains it has produced, and the pleasures it has excluded.
[* ]On the ground of these considerations, in the author’s work on legislation, on the field of the civil, or say the distributive branch of law, in settling the particular ends or objects of pursuit proper to be on that occasion kept in view, in the distribution made of benefits and burthens—on the ground of these considerations it is, that, to the objects expressed by the words subsistence, abundance, and security, was added that which is expressed by the word equality. For, on the occasion of the arrangements by which this distribution is effected, it is no less material that this object should be added to the list, than it is necessary that those others should be provided for and take the lead. Absolute equality, is that sort of equality which would have place, if, of the several benefits, as also of the several burthens, each man had exactly the same quantity as every other man: by practical equality, understand whatsoever approach to absolute equality can be made, when provision as effectual as can be made has been made for those three other particular ends of superior necessity. In regard to security, understand likewise, that, amongst the adversaries, against whose maleficent designs and enterprises security requires to be provided,—are not only foreign enemies and internal malefactors commonly so called, but moreover those members of the community, whose power affords them such facilities for producing, with impunity, and on the largest scale, those evils, for the production of which, upon the smallest scale, those who are without power are punished by them with so little reserve. As to absolute equality, it would be no less plainly inconsistent with practical equality than with subsistence, abundance, and security. Suppose but a commencement made, by the power of a government of any kind, in the design of establishing it, the effect would be—that, instead of every one’s having an equal share in the sum of the objects of general desire—and in particular in the means of subsistence, and the matter of abundance, no one would have any share in it at all. Before any division of it could be made, the whole would be destroyed: and, destroyed, along with it, those by whom, as well as those for the sake of whom, the division had been ordained.
[* ]“C’est un ouvrage de genie” were the words, as almost immediately reported to the author of this address. Not to speak of discernment, such was the candour and magnanimity which, in the mind of that extraordinary man, embellished his selfish prudence.
[† ]See Papers on Codification, &c. p. 514.
[‡ ]Letters to Count Toreno, &c. Letter V.
[* ]In so far as evil having the effect of punishment is the inducement, responsibility, i. e. exposure to eventual punishment, is a word which, in this case, is in possession of being employed: it is by his sense of responsibility, that is, by his perception of this exposure, that, be the work what it may, the workman is, in this case, induced to endeavour to make good work, to render his work in this or that way contributory, to abstain from rendering it in this or that way detrimental, to the maximum of happiness.
[* ]Modes of support to a bad work. The following may serve as an exemplification of the devices wont to be employed, for the purpose of eluding or unduly mitigating the judgment of condemnation, due from the tribunal of public opinion, to the author or authors of a law or other authoritative literary composition, adverse to the greatest happiness of the greatest number:—
[* ]In every civilized nation there exists a natural aristocracy, of which the following may be stated as the main branches, having each of them its own particular interest: namely:—
In a monarchy, to these are added two factitious branches: namely—
[* ]In situations, in which the choice of operative rulers depends upon the people, the jealousy of foreigners has, for want of reflection, been copied, from situations in which the choice does not depend upon the people. For want of reflection: for, on reflection, nothing (it will be seen) could be more groundless, than any such apprehension, as that a set of men, be they who they may, will be imprudently partial to a foreigner in preference to themselves, or even to one another. Nothing can be more contrary to theory derived from the universal nature of man: nothing more completely unsupported by particular experience.