The Online Library of Liberty

A project of Liberty Fund, Inc.

• Book I.
• Preface.
• Introduction.
• Chapter I.: General Division of the Aggregate Body of the Law.
• Chapter II.: Constitutional Law.
• Chapter III.: Civil Or Distributive Law. *
• Chapter IV.: Penal Law.
• Chapter V.: Procedure Law. †
• Chapter VI.: Financial Law.
• Chapter VII.: Prescriptions Or Bearings of the Other Codes Or Branches of Law, to the Constitutional Code.
• Chapter VIII.: Public-opinion Tribunal.
• Chapter IX.: Good Rule and Bad Rule.
• Chapter X.: Corruption.
• Chapter XI.: Delusion.
• Chapter XII.: Fiction.
• Chapter XIII.: Factitious Honour.
• Chapter XIV.: Established Religion—none.
• Chapter XV.: Supreme Constitutive.
• Chapter XVI.: Supreme Legislative.
• Chapter XVII.: Supreme Operative.
• Book II.
• Preface to the Original Edition of Book II.
• Chapter I.: Territory of This State, Name, Situation, Boundaries, Divisions.
• Chapter II.: Ends and Means.
• Chapter III.: Sovereignty, In Whom. *
• Chapter IV.: Authorities.
• Chapter V.: Constitutive Authority. *
• Chapter VI.: Legislature.
• Chapter VII.: Legislator’s Inaugural Declaration. *
• Chapter VIII.: Prime Minister.
• Chapter IX.: Ministers Collectively.
• Chapter X.: Defensive Force.
• Chapter XI.: Ministers Severally.
• Chapter XII.
• Chapter XIII.
• Chapter XV.
• Chapter XVI.: Quasi-jury.
• Chapter XVII.
• Chapter XVIII.
• Chapter XIX.: Government Advocate General.
• Chapter XX.: Eleemosynary Advocates.
• Chapter XXI.
• Chapter XXII.
• Chapter XXIII.
• Chapter XXIV.
• Chapter XXV.
• Chapter XXVI. *
• Chapter XXVII.
• Chapter XXVIII.
• Chapter XXIX.
• Chapter XXX.
• Chapter XXXI.
• Appendix.
• No. I.
• No. II.
• No. III.
• No. IV.
• No. V.
• No. VI.
• No. VII.
• No. VIII.

PREFACE.

To the whole contents of this proposed code, one all-comprehensive objection will not fail to be opposed. In whatever political community, by which it were adopted, it would, to a greater or less extent, probably to a very large extent, involve the abolition of the existing institutions.

But, by whomsoever this unquestionable truth is put forward in the character of an objection, let it be understood what the confession is which is involved in it. It is,—that among the institutions, to which the objector is thus giving his support, there exist in an indefinite number, those, of the mischievousness of which he is himself fully conscious,—that, in what he is thus endeavouring at, he therefore acts, to his own full knowledge, the part of an enemy to the community to which he belongs, and for whose welfare he pretends to be solicitous.

The more absurd, the more mischievous the more abundantly productive of human misery in every shape, an institution or set of institutions, is, in the defence of which he is thus acting, the more necessarily is he reduced to have recourse to this mode of defence, and cry out against the subversion of ancient institutions. Suppose an institution, like that, for example, of sacrificing men to idols, as in ancient Mexico; or tormenting and slaughtering them for sport, as in modern Ashantee,—the most shameless corruptionist would not dare to stand up in defence of it, taken by itself. But neither for the defence of this institution, nor of any other still more atrocious, if any such were conceivable, would a corruptionist or lawyer in this or any other country, be wanting, if in so doing, they beheld any prospect of success; and unhappily, such is the weakness of human nature, that there are many down to this time, upon whom such a defence would make a great impression.

Such as it is, the present legislative draught is the first in point of time, in which any such additament as a rationale was ever inserted. Now that it does exist, the utility of its existence will not be matter of dispute. Of its non-existence hitherto, two causes may be assigned. In every government, not having for its object the greatest happiness of the greatest number,—want of inclination and want of ability both together. In a government, having for its object the greatest happiness of the greatest number, on the part of the leading class, namely, the lawyer class, want of inclination as to all three branches of the Pannomion, except the constitutional branch; and in relation to all three branches, and even that branch in particular, want of ability; want of that anticipation of ability, which being necessary even to the bare endeavour, is still more plainly so, to correspondent success. Nor need the deficiency of ability be an object of surprise. Wherever adequate motives are wanting, actions will be wanting likewise; physical desires out of the question, where motives are wanting, desires are naturally wanting; and with desires, endeavours. The quantity of labour necessary has been such as to fill up the ordinary capacity of a whole life; and in return for this burthen, what was the benefit that could by any one be expected?

Thus much as to legislators and legislative draughts. In regard to expositors and commentators, the absence of everything in the shape of a Rationale has not been thus entire. Fragments of the sort of work have even been seen in abundance. Of a Rationale, yes; but of what sort? Of a sort which, perhaps, not altogether without truth, may be pronounced worse than useless. Instead of giving existence to the arrangements, the Rationale has derived its existence from them. In the breast of the ruler, self-interest has given existence to the arrangements; in the breast of the commentator, self-interest has again given birth to the Rationale. To the only right and proper problem which the case admits of, has been substituted an opposite one. Right and proper problem,—to ascertain in each case that arrangement, which is, in the highest degree, contributory to the greatest happiness of the greatest number. Sinister problem, which has almost uniformly been substituted,—to ascertain, in each case, that arrangement, which, under existing circumstances, has, in the highest degree, the approbation of those, in whose hands is, in the greatest quantity, the disposal of the matter of reward in all its branches.

The political states, for the use of which this code is principally designed, are those in whose instance the existing form of government is republican.

To no inconsiderable extent, and in no inconsiderable detail, the features of inaptitude, or in a word the abuses, of the English form of government are brought to view. Useful and highly instructive, however, with reference to the main purpose, will this exposition be, as well as to what may be considered as an additional, though collateral purpose. For a republic it may serve, the whole of it together, at any time. For England, (independent of any such sudden revolution as, under the provocations given, will be always upon the cards,)* it may, in proportion as it is well adapted to its purpose, be of use in giving direction to the views of all such persons as may feel disposed to occupy themselves in the effecting of melioration by gradual changes, which, in so far as they are conducive to the professed end, will be so many approaches towards republicanism. To the establishment of a republican form of government, which is the term and ne plus ultra on the one hand, as a purely monarchical form of government is on the other, it will apply acceleration or retardation,—or the maximum of retardation, to wit, final prevention, according to circumstances; but in neither can the effect of it, in so far as it has any, fail of being productive of good. Prevention, is that the result? The good produced will, in that case, be pure from evil; but the arrival of the maximum of good, will either not take place at all, or not till at the end of a length of time more or less considerable. Retardation, is that the result? The number of persons excluded from a participation in the maximum of good will be the greater; but the good will be pure from admixture with evil in those shapes which are inseparable from all change, preceded by hostile contention, or sudden and uncompensated transfer of property or power.

In proportion as, of the arrangements here proposed, and the reasons on which they are grounded and by which they are explained and justified, or at least endeavoured to be justified, application is made to the corresponding arrangements, made by English law or English practice, the reader will observe, that from first to last, with few or no exceptions, nothing can be more opposite.

For expressing the cause of this contrariety, few, indeed, are the words that will be found sufficient. In each case the contrariety will be found to have one and the same cause, namely, the nature of the end in view; that end being, in each one of the two cases, the direct opposite of that which it is in the other. In the here proposed code, of every proposed arrangement, from first to last, without any one exception, the end in view is the greatest happiness of the greatest number. Of the several arrangements in the English system, in no one instance has the greatest happiness of the greatest number been the end in view. At all times,—on every occasion,—in every instance, the end actually pursued by the several sets of rulers, has been the promotion of the particular, and thence sinister, interest of these same rulers. Look the world all over, in no one place,—at no one time, has any arrangement of government had for its object, any other object than the interest of those by whom it has been made. In this case as in every other, in so far as the felicity of the greatest number has been the result, the cause of its being so, is, that in the particular case in question, whilst seeking the insurance of their own personal felicity, it was not in their power to avoid seeking the insurance of the felicity of the greatest number.

But under the English government, not to speak of others, those by whom the powers of government have been exercised, have at all times had an interest and a desire operating in direct opposition to those of their subjects; and having, by the supposition, the power in their hands, the corresponding power to give effect to that same interest and that same desire, such accordingly has been the consequence; the sacrifice of the interest and felicity of the greatest number to the particular and sinister interest of those same rulers.

In no instance has any benefit, the receipt of which, (if received by the governed,) would have been attended with any corresponding sacrifice in any shape on the part of the rulers, been conferred on the people but under a sense of necessity, and with reluctance: in no case, of design,—never but either of necessity or accident has any such benefit been the result.

Taking, therefore, the whole system of government, in all its parts, and more particularly the constitutional branch, never in the direct ratio, always in the inverse ratio of its strength, has been the felicity of the people.

At no time have the constituent members of the governing body, at no time has the monarch, at no time have the hereditary aristocracy, at no time have the proprietors of seats in the House of Commons,† at no time have the clergy, at no time have the judges, had any better endeavour or desire than to swell each of them his own power to its utmost possible pitch. To the weakness of the law taken in its totality,—to its weakness, and not to its strength, are the people indebted for everything in their condition, by which they are distinguished from that country in Europe, whatever it be, in which the people are in the most miserable degree oppressed. And this weakness, from what source has it arisen?—from the sinister interest and particular situation of the lawyer tribe.

Now for the first time is the invitation given to examine and discuss the most interesting of all temporal subjects, on the ground of a set of determinate and throughout mutually connected, and, it is hoped, consistent principles. Now for the first time to the subject-matter of this proposed examination and discussion, is given the form and method of the matter of a distinctive branch of art and corresponding science.

In so far as what is said is right and true, will be afforded the utmost facility of conception; to whatever is erroneous and false will be afforded a correspondent facility of and for detection and exposure.

The constitutional code is the first in importance, as on it will depend the matter of all the other codes.

As in the physical, so in the moral branch of the field of thought and action, parts still remain which may be stated as being as yet unexplored. In the political branch, in that subbranch of the moral, one topic is that which regards the rights and the obligations of one-half of the species—the female sex: the rights which it is fit they should possess, the obligations to which it is fit they should be subjected. This inquiry stretches itself over all three parts of the Pannomion—the constitutional, the civil, or right-conferring, and the wrong-repressing—or say the penal. Others there are which belong exclusively to the penal; but of these, the mention may, with more advantage, be reserved for the code to which as above, they belong.

Should it ever happen to the present work to be taken for the basis of the constitutional code of any nation, that which presents itself as the proper way of putting it to use, is this. In the code to which authority is given, insert the enactive part, and the ratiocinative and the expositive; eliminate the instructional and the exemplificational.

Why eliminate the instructional and the exemplificational?—Because neither of them has any other object than the giving assistance to the legislator in the task of composing the authoritative code, in the composition of which he will have derived from them such information as appears to him useful; and the remainder not being designed to serve as a rule of action for the people, need not, and therefore should not, lie as a burthen upon their pockets and their time.

Why insert the expositive and the ratiocinative? The expositive, because regarded as necessary to right interpretation; the ratiocinative as being assistant to right interpretation, and as helping to create and preserve in the minds of the people, a persuasion of the aptitude of the enactive, and a disposition to lend their assistance, as occasion calls, to the giving execution and effect to it, and as serving to produce the like persuasion in the breasts of legislators, present and future, and thereby preserve the law itself against changes from the better to the worse. Also, to create and preserve in the breasts of judges the disposition to act their parts in giving execution and effect to it.

Not for amusement assuredly, were the lists and explanations of the various subject-matters and functions, inserted in this code, any more than the like might be in an index or a dictionary. No more need, therefore, has the reader of this proposed code to read them in the order in which they stand, unless for some special use, any more than to read the same quantity of matter in the one or the other of those useful fruits of hard labour in the field of literature. Not for amusement but for substantial use. Subject-matters for the purpose of making as sure as the faculties of the labourer will admit, that nothing which the purpose required to be noticed had been left unnoticed, and for that of making the reader satisfied that everything which the purpose required to be noticed has been noticed accordingly.

The term functions has been employed for the sake of conciseness, correctness, clearness, and symmetry. But for this comprehensive denomination, where arrangements were intended to be the same, assemblages of words, more or less different from one another, would have been apt to have been employed in giving expression to them; and from this diversity in expression, diversity of meaning might, on each occasion, have naturally been inferred. But by a single word, with a few others, necessary to complete it into a proposition, less space by an indefinite amount will be occupied than would be occupied by any equivalent phrase of which this same word formed no part,—hence, in a proportionate degree, conciseness.

If in any one of these same instances, the word function, with the attribute connected with it, is the proper one, so by the supposition is it in every other: so much for correctness.

If in any one of these same instances, the import meant to be conveyed is clear, so will it be in every other. For, there being no obscurity in it on the first that occurs of those occasions, so neither can there be on any other. As little can there be any ambiguity. So much for clearness.

Symmetry, or say uniformity. That which, in relation to the multitude of objects, symmetry requires is, that each of them be presented to view in forms mutually agreeing; but no two forms that are in any particular different, can agree so well as the same form does with itself. And as to the order in which they present themselves, it will, on each occasion, be that which on that same occasion, is best adapted to the writer’s purposes. Those objects which require to be put together will have presented themselves together in the compass of this single word, and in exactly the same form.

One error in practice there is, against which it seems necessary to give warning, it being at once so mischievous, so natural, and so common. This is, the depriving the people of the benefit of such parts of what is proposed as are not unsuitable to the existing form of government, on account of their contiguity to others which are unsuitable to it.

[* ]Written in 1827.

[† ]Written in 1821.