Front Page Titles (by Subject) CHAPTER III.: CIVIL OR DISTRIBUTIVE LAW. * - The Works of Jeremy Bentham, vol. 9 (Constitutional Code)
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CHAPTER III.: CIVIL OR DISTRIBUTIVE LAW. * - Jeremy Bentham, The Works of Jeremy Bentham, vol. 9 (Constitutional Code) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 9.
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CIVIL OR DISTRIBUTIVE LAW.*
Of law in general, and of this branch in particular, the principal object is to give security to rights; viz. to such as it finds in existence, and such others, as under and in virtue of such arrangements as it finds in existence, are, from time to time, successively brought into existence; to wit, either by such events as take place without the operation of human will, such as deaths and other casualties, and the produce of the elements of the three kingdoms of nature,—the mineral, the vegetable, and the animal; and such as are brought into existence by the operation of the human will, such as voluntary contracts, and ordinances of the administrative branch of government.
In comparison with the security thus afforded for rights in general, such benefits as belong to this or that one of the three remaining heads, under one or other of which, all the as-yet-unmentioned benefits, which it is in the nature of government to confirm or secure, may be classed, are but of secondary importance; to wit, subsistence, meaning incidental arrangements for securing national subsistence against incidental causes of failure; abundance, meaning continual increase to that which is a common matter of subsistence and abundance; and equality, meaning the giving to the several masses of the matter of wealth in the possession of different individuals, such approach and perpetual tendency to absolute equality, as shall not be inconsistent with the security which ought to be afforded to the rights relative to property, and the rights relative to condition in life.
Security, subsistence, abundance, and equality,—by these then will be presented to view the several subordinate or particular ends, most immediately in contact with, and branching out from, the only legitimate and universal end of government.
Neither in the import of the word subsistence, nor in the import of the word abundance, is any relation to futurity necessarily involved. In the import of the word security, that relation is constantly and necessarily involved: the present being at all times but a point, the word security can never present itself without presenting to view one point at least, which is neither the present nor the past.
First on the list of benefits which the civil branch of the law is occupied in distributing, is security.
Security may be considered with reference to the objects which are secured, and with reference to the objects against which they are secured.
Taking human beings individually considered, these are the only real entities considered as being secured. But when a particular and practical application comes to be made of the word security, certain names of fictitious entities† in common use must be employed to designate so many objects, to and for which the security is afforded. Person, reputation, property, condition in life,—by these four names of fictitious entities, all the objects to which, in the case of an individual, the security afforded by government can apply itself, may be designated.
Security has for its adversaries, against whose enterprises it is to be afforded, three classes of persons differently situated and denominated, viz. foreign adversaries considered as such, foreigners considered in so far as they are, or are liable to become, adversaries; rulers, viz. of the country in question considered in that same light; and fellow-citizens, or fellow-subjects, considered in that same light.
As to the acts against which security is to be afforded, and by which, in so far as they are performed, security is broken in upon and lessened, they are in themselves and their immediate effects, the same by which soever of the three species of adversaries they are exercised. Taken, however, in the aggregate, they are wont to be designated by a different denomination, according to the situation of the class to which the person or persons by whom they are exercised, is considered as belonging. If to that of foreign adversaries, they are denominated acts of hostility: if to that of domestic adversaries, considered in the character of rulers, acts of oppression—or, if the oppression be considered as to a certain degree flagrant, acts of tyranny; if to that of domestic adversaries, considered in the character of subjects, acts of delinquency.
The case of foreigners, and also the case of rulers, are treated of elsewhere. Remains the case in which the persons against whose enterprises security is to be afforded, are considered in the character of subjects.
In this instance, the principal and leading operation by which the security is afforded, consists in giving, to the several distinguishable acts by which the security, considered as applied to the several sorts of possessions, is considered as being broken in upon and lessened, the denomination and character of so many different offences, considered with reference to the persons engaged in the exercise of those acts.
But so nice and difficult of apprehension is, in many cases, the distinction—on the one hand, between one mode of delinquency and another—on the other hand, between the several modes of delinquency and innocence; and so inadequate to the purpose of conveying, in this case, a clear, correct, and complete conception of the object denominated, is any single word, of which a denomination can be composed,—that to each such denomination, it is altogether necessary that a definition be subjoined, or, to speak more extensively, an exposition; as also, on the occasion of each such exposition, a portion of explanatory matter applied to the several distinguishable terms of which it is composed.
Were nothing further necessary to the purpose, the list of these several definitions (considered as being so many instruments employed in the process of affording security against so many acts, by the exercise of which security is broken in upon and lessened) might, without any apparent impropriety, be allotted to the branch of law here in question. But such are the temptations by which, in the instance of each such offence, men are liable to be invited to the exercise of it, that unless, for the purpose of restraining them from the commission of those acts respectively, inducements of the nature of punishment were employed and announced, every such definition so sent abroad without support, would be a dead letter, and as such, be without effect. Penal law is, therefore, the branch of law which occupies itself in the distribution of burthens, to the intent of their having the effect of punishment.
With relation to the civil code,—taking the mass of its arrangements for an intermediate end, the matter of the penal code is but a means. By the arrangements contained in the civil code, so many directive rules are furnished; what the penal code does, is but to furnish sanctions, by which provision is made for the observance of those directive rules. In truth, it goes but part of the way towards furnishing that indispensable appendage; for, of sanctions, there are two sorts, viz. the punitive and the remunerative; and the punitive is the only one of the two, which is furnished by the penal code as such.
Hence it is that, in the field of law, command occupies a much greater extent than is occupied by invitation. Between the idea of command and the idea of eventual punishment, the connexion is inseparable. Thus it is, that the character and form of penality are given to the principal mass of those directive rules by which the distribution of benefits, as well as that of burthens, is effected. The matter of the civil code is in its form little else but a sort of exposition of the terms employed in the commands delivered by the penal code.
Thus to give effect to the distribution made of property, against the several acts by which it is invaded,—usurpation, for example, or theft, or endamagement,—the law must afford the means of knowing what is each man’s property, and, for this purpose, employ some such word as titles, to denote the several efficient causes of it. But so long everywhere is the list of the different sorts of titles, and so unavoidably complicated and voluminous the descriptions of the modes in which they may be acquired and lost, that to insert all this matter of detail in the body of the penal code would give an altogether disproportionate bulk to the matter of the different sections, which necessarily belong to it; and, in particular, the several sections in and by which the several acts, which have been distinguished and crected into offences, have been described. Hence, from the several passages in which, in a penal code, any such word as title occurs, reference will be made to the division headed with some such word as titles, in the civil code. So again, of the offences enumerated and defined in the penal code, non-performance of services due by contract, or, more shortly, non-performance of contract, must necessarily be one. But as of services the variety is infinite, so of services to the rendering of which a man may seek to oblige himself by contract the variety is great: correspondently great, on the other hand, is the variety of cases in which, notwithstanding the entrance made into this or that contract, it is not fit that the sanction of the law should be employed in enforcing the performance of it.
Of the matter of the penal code, the designation made is not complete until a designation has been made of all the sorts of acts which, by it, are dealt with in the character of offences. Of the matter of the civil code, the efficiency would be throughout as nothing, were not the several acts by which the distributions made by it are violated, dealt with on the footing of offences. Yet, there is no such correspondency between the one sort of matter and the other as to render it convenient that both together should be amalgamated into one and the same code. For, though there are some offences, for the full and adequate description of which abundance of the sort of expository matter above spoken of is necessary—as, for instance, the offences by the creation and punishment of which protection is afforded to property—yet property is but one out of several endowments to which protection is afforded; and some there are, to the protection of which by appropriate arrangements of penal law, no such voluminous masses of expository matter are requisite. Every man, for example, has, on certain conditions, and in certain modes, a right to protection at the hands of law against such acts as are injurious to his person. But, for the designation of his title to his person, or of his title to such protection for it, no such details are necessary as in the case of property.
And the like may be said with regard to reputation.
Original and all-comprehensive, derivative and incidental, means of subsistence. By these words may be designated the two branches of a division which it is necessary in the first place to bring to view.
The original fund of each man’s subsistence is each man’s labour. The production of it is the work of nature without law, and antecedently to law. What it looks for at the hand of law is security: security against calamity, security against hostility from foreigners, from fellow-subjects, and from rulers.
Incidental and derivative means of subsistence. The need of these arises out of the deficiences that are liable to have place in the produce of each man’s labour, considered as a fund for each man’s subsistence.
Certain and casual. By the two distinctions thus designated may be comprehended, in the first place, all the varieties of which the cause of this deficiency are susceptible.
Certain is the nature of those produced by time of life: by the time antecedent to the capacity for labour, and by the time subsequent to it: by immaturity and by caducity.
The time of immaturity endures for years: the time of caducity may endure for years, or may terminate in the same moment in which it commenced.
Want of capacity for labour, want of employment for labour. Under one or other of these heads may be comprehended all the casual causes of deficiency in regard to subsistence.
Casual want of capacity for labour is indisposition—relative indisposition. Indisposition may be of body or of mind: the degree of indisposition in question is designated by the effect.
If against any of the causes of deficiency in regard to subsistence the government has failed to provide an efficient remedy, the consequence is death; security against calamity has so far failed to have been afforded.
But against deficiency in regard to subsistence, no remedy can ever be provided but at the expense of security for abundance. The fund of abundance is composed of the stock remaining of the produce of labour, deduction made of the several amounts, substracted by consumption, useful and useless, immediate and gradual, natural and human, in all their several shapes.
In his endeavour to provide a remedy against deficiency in regard to subsistence, the legislator finds himself all along under the pressure of this dilemma—forbear to provide supply, death ensues, and it has you for its author; provide supply, you establish a bounty upon idleness, and you thus give increase to the deficiency which it is your endeavour to exclude.
Under the pressure of this dilemma, how to act is a problem, the solution of which will, in a great degree, be dependent upon local circumstances: nor can anything like a complete solution be so much as attempted without continual reference to them. One leading observation applies to all places and all times. So long as any particle of the matter of abundance remains in any one hand, it will rest with those, to whom it appears that they are able to assign a sufficient reason, to show why the requisite supply to any deficiency in the means of subsistence should be refused.
Of the instruments of abundance, the fund is composed of the surplus of the means of subsistence, deduction made of the quantity destroyed by consumption in all its shapes.
Increase of production—decrease of consumption. Under one or other of these two heads may be comprehended all the possible causes of increase to the abundance fund.
Natural and factitious. Under one or other of these two heads may be comprehended all the possible modes of increase to production.
By natural, understand all those that have place without intervention on the part of the government in this particular view. Under this same head natural, is therefore comprehended whatsoever assistance is afforded to production, by the security afforded to produce.
By factitious modes of increase to production, understand all such as are employed by government in that special view.
Here comes in with propriety one general and all-comprehensive rule. In so far as the natural means of increase to the abundance fund suffice for the production of the effect, forbear to employ any factitious means for giving increase or acceleration to it.
Neither for this purpose nor for any other can the power of government be employed, but coercion must be applied immediately, in so far as the inducements employed are of the penal kind; unimmediately, in so far as the inducements employed are of the remunerative kind: but it is only by coercion that any means of remuneration can be collected.
In favour, and for the benefit of, A, you cannot seek to give increase to production in the hands of A, except in so far as coercion is applied either to A himself, or to B, C, and D, and so forth.
But why seek to benefit A by coercion applied to A? His regard for himself is greater than yours can be;—his knowledge of what is most beneficial to himself is greater than yours can be;—his experience of what has been most beneficial and most hurtful to himself is greater than yours can be.
Why seek to benefit A by coercion applied to B, C, and D, and so forth? Coercion is evil—positive evil—suffering: absence of increase is but negative evil. No suffering is the result of it. A is but one; B, C, D, and the rest of them are many: by the number of them all, after allowance made for the lessening of loss by the distribution of it, is the quantity of the suffering, produced by the coercion, multiplied.
Increase cannot thus be sought to be given to production otherwise than at the expense of equality; by violations made of the rules of equality, for the importance of which to the greatest happiness of the greatest number, see further on.
For security, yes, without decrease, and with increase to the greatest happiness of the greatest number, the rules of equality may be infringed: for increase to abundance, without decrease to the greatest happiness of the greatest number, they cannot be infringed.
The negative means of increase to the abundance fund is by decrease of consumption. In so far as it is by voluntary decrease of consumption that decrease is made in the amount of the abundance fund, by the respective proprietors, pleasure and security, in all their various shapes are the effects of it, and are in proportion to it. In the case of by far the greatest portion, in quantity and value, of the produce of labour, subsistence, pleasure, and security, in all their several shapes, have place only in so far as consumption has place. In each individual instance, from which of two causes, pleasure, or security, or both, are derived by him in greatest quantity, viz. from consumption or from avoidance of consumption—in a word, from preservation, is better known to the proprietor himself, than it can be to any body, and not at all known to you.
The great cause by which decrease is produced in the abundance fund, always without pleasure, and, in too great degree, without proportionable security to the possessors, is, that which consists of the draughts made upon it by government.
The abundance fund being composed of savings made out of the subsistence fund, includes in it the subsistence fund: the materials or instruments of abundance are the materials or matter of subsistence.
Diminution of consumption being one of the two means of increase to the abundance fund, hence, upon occasion, where, under the notion of providing security in all its branches for the several instruments of felicity, draughts are made by government upon the abundance fund by taxes, some indication may be afforded respecting the subjects on which, with least detriment, the taxes may be imposed.
With or without design, in so far as a tax is imposed upon any article, the consumption, the use, and thereby the production, of it, is discouraged. To that article discouragement is applied, and, at the same time, to all other articles, in so far as they are rivals to it, encouragement.
Hence, other effects laid out of the question, for increase of the abundance fund, with a view to subsistence, there is a use in imposing taxes rather on objects, to the use of which prompt consumption is necessary, than on objects, to the use of which slow and gradual consumption is sufficient: on objects applicable to the purpose of subsistence of themselves, and without exchange, rather than on objects not applicable to that purpose, otherwise than by exchange, especially if not otherwise than by exchange with foreign or distant countries.
Fourth on the list of the benefits which the civil branch of the law is occupied in distributing, is equality.
By equality is here meant, not the utmost conceivable equality, but only practicable equality. The utmost conceivable equality has place only in the field of physics; it applies only to weight, measure, time, and thence to motion.
The utmost conceivable equality, say absolute equality, admits not of degrees,—practicable equality does admit of degrees.
Equality is not itself, as security, subsistence, and abundance are, an immediate instrument of felicity. It operates only through the medium of those three, especially through abundance and security. Of all three taken together, the use, fruit, and object is felicity—the maximum of felicity; of this maximum the magnitude depends upon the degree of equality that has place in the proportions in which those three are distributed.
Apply it first to subsistence,—means or instruments of subsistence,—subsistence taken in the strict sense. There is not in this case a place for degrees in the scale of equality; for, by the supposition, no inequality has place in this case. As contradistinguished from the instruments of abundance, by the means of subsistence, is meant that least quantity of those instruments, which is such, that with any lesser quantity existence could not have place: no subsistence, no existence.
It is when applied to abundance—to the elements or instruments of abundance, that the nature, and, with the nature, the importance, of political economy is most plainly discernible.
In the aggregate of the elements of abundance is included, as above, the aggregate of the means of subsistence. If the aggregate of felicity were as the aggregate of the elements of subsistence, no addition could be made, by any degree of equality, to the aggregate of felicity. But so far is this from being the case, that it is a question scarcely susceptible of solution, whether, where the aggregate of the elements of abundance is represented by the greatest number possible, the aggregate of felicity is so great as, or greater than, two. Take, on the one hand, the day-labourer, who throughout life has had complete means of subsistence, but at no time any portion of the elements of abundance: take, on the other part, the monarch, who throughout life has had the elements of abundance, together with all the other instruments of felicity, in the greatest quantity possible. Ages equal, scarcely can any one assure himself by full persuasion, that the quantity of felicity enjoyed by the monarch has been twice the amount of that enjoyed by the labourer; for the quantity of felicity is not as the quantity of the elements of felicity simply, but as the quantity of the elements of felicity, and the capacity of containing the felicity, taken together. In a basin of water, introduce anywhere a secret waste-pipe: inject through another pipe any quantity of water how great soever, the vessel, it shall happen, will be never the fuller; for as fast as it flows in at one part, it flows out at another. Just so it is with the elements or instruments of felicity, when a stream of them, of boundless magnitude, is injected into the human breast. Of pain, in all its shapes, a monarch is no less susceptible than the labourer: and in its most common shapes the quantity of pain may be, and frequently is, so great as to outweigh the greatest quantity of pleasure in all its shapes, of which human nature is susceptible. Even suppose pain, in all its severe shapes, absent during the whole time: the quantity experienced the whole time, suppose it a minimum: this being the case in both situations, still the question will remain insoluble as before. For in both cases the quantity of felicity actually enjoyed depends on the degree of sensibility to enjoyment, in each instance: and while in the labourer the sensibility is a maximum, the degree of sensibility in the monarch may be a minimum. Even supposing this sensibility to be at the same degree, in both instances at a given time of life, it is, in the case of the monarch, exposed to a cause of diminution, which has no place in the case of the labourer; for by high dozes of the exciting matter applied to the organ, its sensibility is in a manner worn out. And in fact, number for number, the certain probative symptoms or circumstantial evidences of infelicity, as exhibited on the countenance, are at least as frequent in the case of the monarch as in the case of the labourer.
Apply the investigation to any of the situations intermediate between that of the labourer and that of the monarch, the result will be the same.
The more closely the subject is looked into, the more complete will the persuasion be.
Of the enjoyments or instruments of positive felicity, the principal and most unquestionable will be found to be, as constantly and in as high a degree, attached to the situation of the labourer, as above delineated—the labourer, to whom none of the means of subsistence have been wanting, though none of the other elements of abundance have been present—as to that of the monarch.
The principal enjoyments of which human nature is susceptible, constancy of repetition being considered as well as magnitude, are—those produced by the operations by which the individual is preserved; those produced by the operations by which the species is preserved; that cessation from labour which is termed repose; and that pleasure of sympathy which is produced by the observation of others partaking in the same enjoyments. These four, with the exception of repose, are so many positive enjoyments upon the face of them.
Cessation from labour presents, it is true, upon the face of it no more than a negative idea; but when the condition of him by whom repose after corporeal labour is experienced, is considered, the enjoyment will be seen to be a positive quantity; for, in this case, not merely a cessation from discomfort, but a pleasurable feeling of a peculiar kind, is experienced, such as, without the antecedent labour, never can be experienced. In the case of the labourer, it may indeed be said, that before the time of repose, with its enjoyment, arrives, the labour is pushed to a degree of intensity of which pain (in those degrees, at least, in which it is denoted by the word discomfort) has been produced. But the greater the degree of the pain of suffrance, the greater the degree of the pleasure of expectation—the expectation of the pleasure of repose—with which it has been accompanied. And this pleasure of expectation has had for its accompaniment, the pleasures of expectation respectively appertaining to the other pleasures of enjoyment above-mentioned; sensibility with regard to each being increased by that very labour, to the intensity of which that of the pleasure of repose is proportioned.
Pursue the investigation throughout the several other enjoyments of which human nature is susceptible, the ultimate result will not be materially different.
Except in so far as security cannot be afforded to one man but by defalcation made from the security afforded to another, where is the man to whom appropriate security ought not to be afforded for his person, for his reputation, or for his condition in life? Where is the man to whom, for any one of those three possessions, greater or better security ought to be afforded than to any other?
Remains property, as the only one of the four possessions in relation to which the application of the benefit of equality requires any considerate discrimination or reserve.
When, and in proportion as, by any cause, defalcation to any amount is made from the mass of a man’s property, whether in possession or in contingency, a correspondent defalcation, there is always sufficient reason for believing, is thereby made from the sum of his happiness.
The defalcation thus made from happiness may have place without his being apprized of the defalcation made from his property.
Such is the case, for example, where a man having in his possession a mass of property, the exact amount of which is not known to him, a defalcation, not known or suspected by him, is made from it, whether by design or accident.
So again, in case of contingency, a gift or legacy being, without his knowledge, intended for him, a third person intervenes, and, without his knowledge or suspicion, prevents the intention from being executed.
In these cases, happiness is diminished, viz. by diminution of pleasure; but in these cases no positive pain is produced.
If with his knowledge, and without his free consent, a defalcation is made from the mass of his property, in this case, over and above the sort of negative defalcation made as above, defalcation of a positive aspect is made, viz. by means of, and in proportion to, a particular pain, which, in some quantity or other, he cannot fail to experience. A pain of privation, or a pain of loss, are the names by which this species of pain has been distinguished.
If from the operation of a cause, the same with, or similar to, that one from the operation of which a loss, as above, has been sustained by a man, he is made to entertain the apprehension of ulterior loss, produced by ulterior operations of the same cause, another pain of a different description takes place, in addition to the above. This pain has been denominated a pain of apprehension, grounded on loss.
If but for the loss thus incurred, the man would have continued or engaged in some profit-seeking and profitable course of labour; or if he is, by the apprehension of the like eventual loss, prevented from continuing or engaging in such course,—a loss to a further amount is thus produced, and by means of it, it will generally happen, an additional and correspondent pain. The loss has been denominated loss by depression of industry; the pain, pain from repression of industry.
Of these four modes of defalcation from happiness by defalcation from property, the two first-mentioned apply exclusively to the individual thus damnified, and the circle of his connexions in the way of interest and sympathy. From the two last, by the observation of his suffering, may be propagated, as it were, by contagion, a cluster of similar evils in the breasts of other persons, the number of whom will be determined by the number of those by whom intimation having been received of his loss, apprehension comes to be entertained of loss to themselves, or their connexions, from the operation of the same cause, or similar ones.
This pain, to the extent of which, that is to say to the number of persons participating in it, no exact limits can be assigned, has been denominated the pain of insecurity by contagion.
When a mass of property, not as yet in the man’s possession, having been an object of expectation to him, fails at the expected time to come into his possession, disappointment on his part takes place,—a correspondent pain is experienced by him, a pain of disappointment.
Correspondent to the pain of privation in case of defalcation, is the pain of disappointment in case of expectancy.
In the case of the first of these evils, if by the same cause by which it has been produced to one party, good to an amount not inferior, has been produced to another party, no sufficient reason will have place for abstaining from the production of it.
Where no expectation has had place, no disappointment can have place. In the exclusion of the above evils may be seen the only reasons why, for property in any shape, against the acts of persons of any description, security should, in any shape, in any place, at any time, be afforded; why, for theft in any case, for fraudulent attainment by any means, for robbery, for extortion, for peculation, in a word, for depredation in any shape, punishment should be appointed.
In the instance of each individual, a particular point of time there is at which, without defalcation made from security in his instance, or in the instance of any other individual, his property may be subjected to a distribution or other disposition, whereby, according to the amount of it, advance towards absolute equality may be made.
This time, is the time of a man’s death. In his instance no such evil is produced, for he is no more. In the instance of no other individual, if sufficient and effective care has been taken to exclude expectation, will evil be produced; for the only evil incident to the case is disappointment, and, by the exclusion of expectation, disappointment has been excluded.
Whatsoever be the amount of a man’s property, if, within a certain distance from him in the line of natural relationship, relations of his, knowing themselves to be such, and known by him to be such, are in existence, an expectation of possessing, at the time of his death, the whole, or a portion more or less considerable, of that property, (with the expectation of such part, if any, as it is known will terminate at his death,) will, in proportion to their several degrees of propinquity, and correspondent amity, be entertained,—that is, in the instance of such of them as, in respect of age and other circumstances, are capable of entertaining expectations of this nature.
In the instance of some of these persons, this habit of expectation has had, for its cause and support, a correspondent habit of co-enjoyment.
In this case are constantly a man’s wife and children; a woman’s husband and children; incidentally any other such near relations, especially blood-relations, whose circumstances, in conjunction with his own, have happened to produce, on their part, such habit of co-enjoyment.
On this occasion by the distribution which, according to the natural course of things takes place (abstraction made of arrangements established by positive law, for the express purpose of controlling it) equality, and that without defalcation from security, is promoted.
So various are the circumstances in which, on the occasion of any such decease, a family is capable of being left, that, in the way of detail, it is impossible to pronounce, by any general rule, what course or plan of distribution is most natural: what course or plan is, in the highest degree, conducive to the greatest happiness of the greatest number.
In general terms, thus much however may be said, that among those by which equal regard is paid to the habit of co-enjoyment, other grounds of expectation and demand, being on the same footing, that course will be most beneficial which, in its nature, and in the conception entertained of it, and the description given of it, is the most simple.
Say, for example, children or no children, on the death of the husband, the whole of his property to the widow: on the death of the wife, the whole of her property to the widower.
On the children, the state of dependence in which they are thus left, imposes no new hardship: this dependence is but a continuation of existing dependence.
As between child and child, on the decease of the widower or the widow, equality; this, for a general rule is the most obvious, and has the advantage of simplicity.
Abstraction made, of any difference of demand that may be regarded as produced by sex—in favour of an elder child, in support of a claim on his part to a more than equal share, may be adduced the longer continuance of his habit of co-enjoyment.
But, in favour of the younger, in support of a claim on his part to a more than equal share, may be adduced the more urgent need resulting from, and proportioned to, the deficiency in his capacity of providing the means of subsistence from his own labour, in comparison with a brother or sister of maturer age. Of this latter reason the force presents itself as being superior to that of the former.
For the solution of these, and a host of other difficulties, altogether incapable of being aptly provided for, by general rules, provision may be made, and very generally is made, by a power of disposition given to the parents or one of them: natural affection, guided by ordinary prudence, being in this case trusted to, for the accomplishment of the universal object—the greatest happiness of the greatest number interested.
But neither are natural affection nor prudence, in this case, in every instance, what it were to be wished they were. This considered, a course that may naturally enough present itself to the legislator is, to divide the thus vacated mass of property into two parts: one, the division of which shall be determined by the single consideration of equality; the other, in relation to which the case of providing for the differences liable to be made in the proper quantum of allowance, by the difference that may have place in respect of the quantity needed, and the correspondent urgency of the demand, is left to be provided for by natural affection, guided by ordinary prudence, as above.
In modern Europe, by the operation of causes produced by a state of society such as has no longer any place anywhere, an arrangement, altogether different from the above, and as adverse as possible to equality of distribution, and the beneficial effects depending on it, has, to a vast extent, for many ages had place, and continues to have place: to females nothing: to males, if but one, the whole: if more than one, to the eldest the whole: to the other or others, in whatever number, nothing. For this arrangement, in times of high antiquity, there existed a cause which was not wholly destitute of reason. From external adversaries, or from this or that portion of its own members, and in particular from the great majority of them, placed in relation to the ruling few, in the condition of slaves, the state of the whole community was a state of continual, all-pervading, and imminent danger. The mode of armament was at the same time, compared with the immature state of the arts on the operations of which it depended, a highly expensive one. For defence, in addition to the ordinary habiliments, were others composed of iron: for offence, lances, spears, or bows and arrows. Lances were in an eminent degree, exposed to fracture: by a spear no chance of producing effect could be afforded, but by its being parted with, and conveyed to the adversary: and so in the case of the arrow. To these, as well for offence as defence, was added a horse: nor for the defence of the horse, was a sort of appropriate armour always refused; bridles and saddles for him, were at any rate necessary: and, employed or not employed, food for him, with a certain degree of attendance, was at all times necessary. To destruction or cessation, the services of the animal were exposed at all times: a succession was therefore necessary to be kept up.
By the conjunct operation of all these causes taken together, to the maintenance of each individual, whose powers were thus applicable to the defence of the community, a mass of property, continually kept on foot, was indispensably necessary. In the possession of any such individual, suppose a mass of property sufficient, but not more than sufficient, for this purpose; if, upon his decease, this mass of property were to be subjected to division, the national force would thus be bereft of one of its constituent parts: and, in a state of society in which the cultivation of the means of subsistence had made so small a progress, so small was the number of the individuals thus equipped, that no individual could be subtracted from the number without sensible diminution of national security.
From all labour employed in the production of the means of subsistence, and the matter of abundance, all persons thus engaged in the defence of the community, stood exempted; partly by necessity, in respect of the need of the application of it to their military function, partly by the power they had of exacting from others, labour for those and other purposes, for their own use.
In regard to exposure to the necessity of labour, from this state of things has been produced, in the minds of a certain portion of the community, a division of the members of that same community into two classes: one composed of those in whose instance the need of employing labour in the acquisition of subsistence and abundance, is no hardship: another composed of those in whose instance the need is a hardship.
The exigencies and habits of acting, produced by this state of things, have long been at an end everywhere; but habits of thinking, produced by it, are scarcely at an end anywhere.
To descend from a higher to a lower place in the scale of opulence, is a change which can neither be endured nor apprehended without uneasiness. On the decease of any possessor of property living without labour, laying out of consideration the widow or the widower, no division can have place among the children, but that, at any rate, (if it be an equal one,) this inconvenience must be experienced—experienced by all of them, in a degree proportioned to their number,—if, by the late proprietor, a house of a certain extent and appearance, with servants in a certain number, and a table furnished at a certain expense, were kept up, in the comforts of all which, during the life of the father, the children had, all of them, in a greater or less degree, and naturally in an equal degree, participated,—after the decease of the parent, no such equal enjoyment (except on condition of a degree of harmony not to be expected from equals so situated, and not under the control of any superior, nor in that case without universal renunciation of the comforts of matrimony) could be maintained.
But, in a situation of this sort, such is the course taken by self-regard, looking forward to the time in which, in his own person, he will have ceased to exist, imagination presents to a man, as a sort of substitute to his own person, that of another, who, in nature, denomination, and in amount of property, shall come as near to himself as one person can come to another. A person whose body once formed a part of his own, and in the rendering of whose mind a continuation of his own, as much care and labour has been employed as it was agreeable to him to employ.
The usefulness of the benefit of equality stands, then, upon these positions:—
1. The quantity of happiness possessed by a man, is not as the quantity of property possessed by the same man.
2. The greater the quantity of the matter of property a man is already in possession of, the less is the quantity of happiness he receives by the addition of another quantity of the matter of property, to a given amount.
3. The addition made by property to happiness goes on increasing in such a ratio, that, in the case of two individuals—he who has least, having, at all times, a quantity of the matter of property sufficient for a subsistence, while he who has most, possesses it in a quantity as great as any individual ever had, or ever can have; it is a question scarce capable of solution, whether the one who has the greatest quantity of the matter of property, has twice the quantity of happiness which he has whose quantity of the means of happiness, in that shape, is the least.
If this ratio, of two to one, be regarded as too small a ratio, substitute to it the ratio of 3 to 1, the ratio of 4 to 1, and so on, till you are satisfied you have fixed upon the proper ratio: still, the truth of the practical conclusion will not be affected.
This conclusion is, that, so far as is consistent with security, the nearer to equality the distribution is, which the law makes of the matter of property among the members of the community, the greater is the happiness of the greatest number: and, accordingly, this is the proposition which, so far as can be done without preponderant prejudice to security, ought, at all times, and in all places, to be established and maintained.
As to absolute equality, in relation to property, such equality is neither possible nor desirable.
It is not possible, because, supposing it to have place at the commencement of any one day, the operations of that one day will have sufficed to have destroyed it before the commencement of the next.
It is not desirable, because never having had existence in any country, at any time, it could not have place in any country in future, without having been endeavoured to be established in that same country: in which case, not only the endeavour, but the very design alone, accompanied with any assurance of its being about to be followed by the correspondent endeavour, perseveringly exercised, would suffice to destroy the whole of the value, and the greatest part of the substance, of the matter thus undertaken to be divided.
Rights and Obligations.
Correspondent to rights, are obligations. Without the idea expressed by the word obligation, no clear or correct idea can be annexed to the word right.
Rights are either simple or complex: simple rights, are the elements out of which complex rights are composed. Those which first come to be considered, are simple rights.
An original or primary right, is that which is constituted by the absence of the correspondent obligation. This is the sort of right which has place antecedently to the formation of government. It belongs equally to every agent, and has place with relation to every subject. No man, as yet, being under any obligation to abstain from making any use of anything; every man has, as yet, a right to make every use of everything.
Next come those rights, the existence of which is constituted by the existence of correspondent obligations.
First comes that right which is constituted by an obligation imposed upon other men, inhibiting them from exercising, with relation to the subject in question, the sort of right above designated by the appellation of an original or primary right. Call this a right by obligation, to wit, restrictive obligation,—imposed by the addition of this secondary right, the primary right acquires the character and name of an exclusive right.
If the birth of the exclusive right awaits a manifestation of the will of the person in whose favour it is created, it receives the appellation of a right of excluding, or say of exclusion.
In this case, the word power, is in use to be employed: and we say, accordingly, right of exclusion, or power of exclusion.
In the case of the right by exclusion, or the right of excluding, the subject to which the right and the exclusion apply, may be an individual or a species: an individual, for instance, the paper, and the collection of marks called letters which have been superinduced upon it: a species, for instance, any paper of the texture or appearance of this individual paper, or any marks presenting to view in the same order the same words, i. e. words of the same import as those which upon this paper are superinduced.
Of this species of exclusive right, to wit, the exclusive right which applies to sorts of subjects, the origin is of a date long posterior to that of the right which applies to individuals. When, as in the case of copyright, the duration proper to be given to it came in question, its nature and the mode of its formation were so imperfectly understood,—so far from being clear and correct, were the ideas suggested by the words employed in giving expression to it, that the mass of argument produced by the contest, exhibits a web of confusion no where unravelled. Of the original sort of right, it was said that it presented something tangible: of the more recently created sort of right, it was said that it presented nothing tangible: and in this supposed absence of tangible matter was found a sufficient reason for disallowing the right. But it has just been seen, that whereas in the case of the original right, the quantity of tangible matter belonging to the case is but individual, and therefore, finite; in the case of the more recently created right, that quantity is a species and therefore infinite.
On the occasion of these rights, will come to be considered the subjects to which they are applicable, and also their efficient causes: to wit, the several states of things or occurrences by which they are wont to be respectively brought into existence.
Benefits and Burthens.
Of the distribution made of benefits, the proper object is, that the sum of them be as great as possible.
The distribution made of benefits, has two classes of effects: the first belong to the sensitive faculties only: the other, through the sensitive to the active.
Those which belong to the sensitive faculties only, are the effects universally produced throughout the whole of the field to which this branch of law applies itself: those which operate on the active faculties, are incidental only: they consist of those produced by the subject matter of the distribution, operating in the character of the matter of reward.
In the way of reward, a benefit thus distributed, is capable of being made productive of mischievous effects of two different descriptions, according to the two modes of existence, of which, in respect of duration, it is susceptible: viz. transitory and permanent: the degree of permanency being, in some cases in its nature, not incapable of extending to perpetuity.
In the case where the benefit thus made to operate, is of a transitory nature; in so far as application is made of it to the production of mischievous effects, it may be termed the matter of subornation.
Instances are, insurances against misfortune in every shape: against sufferance by fire, water, ordinary mortality.
The law of succession has this mischievous tendency: how effectually, soever, the tendency is, in general, counteracted and nullified, by natural sympathy, by the tutelary force of public opinion.
Wagering is capable of receiving a subornative tendency: when it does so, it operates in that way by a double force: by the force of punishment added to that of reward.
Where the shape in which the benefit exists, is the eventually perpetual shape, and the operation of it extends itself to the active faculty, the act by which it is established, is what is styled foundation: and in conformity to a grammatical ambiguity so extensively prevalent, the permanent result of that same transitory act is styled a foundation.
Out of this law, supported by no other than a remuneratory sanction thus limited, may be, and is made to grow in each instance, an indefinitely extensive mass of law, having, for its support, with or without remuneratory, a penal or punitory sanction.
An example is seen in all foundations having the advancement of art and science in adults or non-adults for their object or pretence. Take, for example, a college in an English university. Out of a mass of income produced by an estate in land, or an annuity payable by government, certain annuities for life or years are distributed among certain of the members, by the name of fellows and scholars: the greater masses of the annuity being styled fellowships, the lesser, scholarships. It is only on certain conditions that the possession of those several annuities can be made to commence or to continue. To give, to such or such an act or mode of conduct, the effect of terminating the continuance of the annuity, is to prohibit such act by a penal law, having, for its support, the punishment consisting in the forfeiture of the fellowship or scholarship, as the case may be. In the value of the benefit thus denominated, may be seen the limit on the side of increase of the mass of punishment which the laws of this foundation have for their support: and by the force of this punishment, punishment to any inferior amount may, in this case, be substituted.
According to certain opinions of the whole number of the individuals, past, present, and to come, belonging to the human species, a majority, or some other very large proportion, are, on the termination of the present life, consigned to a state of torment, exceeding in an infinite ratio, as well in intensity as in duration, the most afflictive that, in this life, has ever been experienced, or can be conceived. According to these same opinions, there exists a certain class of persons so gifted, that, by certain acts performable by any one of them, in favour of any individual chosen by him for that purpose, diminution may be effected either to the probability of his being subjected to such torment, or, at any rate, to the duration of it. Let an exemption to this effect be supposed obtainable, the greatest mass of the matter of wealth that ever was possessed, or ever could be possessed, by any man, would, in the character of a reward for the service by which this exemption, or rather, this chance of exemption, was afforded, be as far from being equal in value to the service thus obtained, as the value of the smallest denomination of coin would be, to the value of the richest treasure ever accumulated within the compass of one and the same receptacle.
Let these opinions, be the political community in question what it may—let a set of opinions of this nature be universally, nay, let them be but generally prevalent, it is evident that, sooner or later, human nature being constituted as it is, amongst the effects of them would be, the lodging in the hands of the persons thus gifted, as large a portion of the good things of this world—of those benefits which it is in the nature of distributive law, or of constitutional law to confer, as it is in the nature of things, that such hands should, in the whole assemblage of them, be capable of containing.
According to the nature of the event which is the subject of it, lay a wager, you may unite in that one arrangement the power of punishment and the power of reward.
Lay a wager of £1000, that a certain individual outlives a certain day, you offer to the person with whom you lay the wager, a reward of £1000 for putting him to death on or before that day: you subject him at the same time to a penalty of £1000, in case of his not putting the man to death on or before that day.
Thus it is, that as it were, in the three different languages—in the languages of these three different branches of law, one and the same arrangement may stand expressed: being expressed in the first instance, in any one of these three languages, it may be translated into one or both of the two others.
Of the effect of any arrangement, in the first instance, as belonging to this or that one of these three branches, would you have a clear, correct, and complete view? Grudge not the trouble of this legislator’s exercise.
Render the cessation of a permanent reward eventual, in the event of the performance of this or that act, by the individual rewarded, you graft on the reward a punishment. Render the cessation of a permanent punishment eventual, in the event of the performance of this or that act by the individual punished, you graft on the punishment a reward.
By donation or bequest, give a man a hundred pounds a-year for his life, remainder to his son for his life, you offer to the son a reward of a hundred a-year life rent, in the event of his putting to death his father.
To a certain extent, in the instance of the law of most countries, counter causes, natural or factitious, or both, have sufficed, for the most part, to divest these distributive arrangements of their deleterious quality: in the case of the wager, the penal law against murder: in the case of the donation or bequest, the same penal law preceded and strengthened by natural affection and the habits that ground it.
Thus, on taking, on the one hand, a view of the deleterious influence of the temptation presented by arrangements which, in the first instance, may have presented themselves in no other character than that of arrangements of civil or distributive law, operating on no other than the passive faculty, care should be taken, on the other hand, not to suffer to pass unheeded, the moral forces by which, in the character of tutelary sanctions, the force of the temptation may be, and, in the ordinary state of things, is, effectually resisted.
Unfortunately for mankind, those salutary restraints which, in ordinary cases, operate with sufficient effect on a small scale, operate with no effect at all, or at the best with comparatively very small effect, on a large scale: acting with effect in the prevention of suffering producible to a small amount, by men in the situation of individuals, they act with little or no effect in the prevention of suffering producible by men in the situation of rulers.
In the course of some reign, which it would not be material or perhaps altogether easy to particularize, the law servants of an English king fabricated an imaginary law, producing, by the help of their power, the effect of a real one, giving to their master—not forgetting themselves—the proceeds of all such vessels as should be, or rather, as had been captured, from the subjects of any foreign state antecedently to any declaration of war by him against such foreign state. Of this ex post facto law, what was the effect? Offering to him a reward, payable in the event of his giving in this way commencement to a war, necessary or unnecessary, justifiable or not justifiable: if not necessary not justifiable—and if not justifiable, giving commencement to a course of murder exceeding, in mischief and in guilt, any act punished by the hand of the ordinary judge in the instance of a private offender, under the name of murder, by the same amount by which the number of lives destroyed in the course, and by means, of the war, exceeds number one. Supposing the war so commenced, not until at the end of a competent time after such declaration of war, would the profits of these murders, in certain fixed proportions, have been divisible among such of the persons as were employed in the capture of the respective vessels. In this particular case, in which, at the time of the commencement of the plunderage, no declaration of war has been made, this part of the profits of it was, by the above-mentioned spurious substitute to an ex post facto law, given to the most gracious and religious king, whose instruments the fabricators of it were. Of a declaration of war, the purpose intended or professed is, by warning of sufficient length, to enable persons who, on the faith of a state of peace, have trusted themselves or their goods, within the reach of the state thus constituting itself in a state of war, to remove themselves in time for escape. By forbearing to issue this warning, all such persons as, if it had been given, would have escaped the calamity, are comprehended in it.
By subjects not commissioned for that purpose by their sovereign, capture thus made, would have given to the act by which it was made, the denomination of an act of piracy, and the agents, the name of pirates.
Of the distribution made of burthens, the proper object is that the sum of them be as small as possible.
Inseparable and separable.—On this occasion this is the first distinction that requires to be made with regard to burthens.
By inseparable, understand that class of burthens, the imposition of which, is in the instance of each individual benefit, inseparable from the creation and collation of that same benefit, with reference to the same individual possessor.
Thus, the exclusive possession of any subject-matter of property cannot be conferred on any one man, except in so far as all others are debarred from intermeddling with it: but, as in the case of any object of general desire, the being allowed to make use of it, is a benefit, so the being debarred from making use of it, is a burthen.
By separable burthens, understand those which, in their nature, are not incapable of being imposed respectively upon any individual, without the conferring of any correspondent and inseparably connected benefit on any determinate individual, or set of individuals, or the whole community taken in the aggregate.
In the case of this class of burthens comes, in the first place, the following rule:—no burthen without a correspondent and preponderating benefit.
In so far as this rule is observed, no burthen can, in any case, be imposed, but that there are at least two parties whose interests are affected by it: the party favoured and the party burthened. To the party favoured the first place is here given: for, by this arrangement, two mementos are given. One is, not to impose a burthen in any instance until some determinate party, on whom a correspondent favour will be conferred by the imposition of it, has been found.
The other memento is to consider and ascertain, who or what, is or are, the parties on each side: whether, for example, it is for the benefit of the many that the burthen is imposed upon the many, upon the few, or upon the one; or, for the benefit of the one, or of the few, that the burthen is imposed on the many.
But, on every occasion, without detriment to the greatest happiness of the greatest number, a burthen may, in any shape, be imposed upon any individual or individuals in any number, for the benefit of an individual or individuals in any number, so that this condition be fulfilled: viz. that the sum of the benefits conferred be greater in value than the sum of the burthens imposed. On this occasion, when, for the sake of a benefit intended to be conferred on one party, a burthen is imposed on another party, the burthen is apt to be either altogether overlooked or set down at a value less than its real one: for the benefit being, by the supposition, the object that first presented itself to the mind, and by its nature the more agreeable object, such is the natural consequence.
Thus much as to the party in favour of whom the burthen is in contemplation to be imposed.
Next comes the consideration of the serviceable object, by the creation and collation of which the benefit is conferred.
In so far as, for the purpose of conferring a benefit on one party, a burthen is imposed on another, an obligation and a right are, by the same operation, created, having for their common subject-matter a service: to the one party a right to receive the service—to the other the obligation of rendering it.
Services by which the possession of money is conferred, and services at large,—such is the division which, how disproportionate soever the terms of it may appear, requires to be made.
Instead of services by which the possession of money is conferred, money (precision being sacrificed to brevity) is a term which, on this occasion, must henceforward be employed.
To money, in preference to services at large, is the first place, on this occasion, assigned: of money, the equivalent of almost all those other services, the comparative importance being so great, and, at the same time, the conception at the utmost point of simplicity: while, of the objects thus contrasted with it, the diversity is without end.
Of the mass of burthens imposed by the exaction of money, the first in extent and importance, is that, the imposition of which has for its object the provision made for the exigencies of the whole community taken together as such, i. e. for the rendering of such services of which the whole community, taken together, stands in need. This branch will be subject to a division, which has its source in the nature of the different branches of the public service.
To the same head belongs the consideration of such monies as may be required for the service of the several portions of territory into which the whole of the territory belonging to the whole of the community stands divided: for example—for roads, rivers, and all other communications by land or water; provisions for security against calamity; provisions for security against hostility on the part of internal adversaries, by arrangements of a preventive nature; and also, such monies, the employment of which has for its object, the giving positive increase to the sum of felicity: for example, the establishment of public schools.
In regard to services, by the exaction of which burthens are imposed on individuals for the benefit of individuals, the first division that requires to be made is, that between such services as require to be exacted in virtue and in pursuance of contract, and such services as may require to be exacted without contract.
In the case of a contract, a burthen is imposed on each side: but, on each side, error and unforeseen evil consequences excepted, a benefit, more than equivalent to the burthen, is received.
To enter into the details necessary to the laying down of the rules, indicated by the regard due to the greatest happiness of the greatest number, on the subjects of contracts,—though the rules were no others than such as have application to all contracts without distinction,—would require more room than could be allotted to such a subject, consistently with the nature and limits of the present design. The like applies to the case of such services as require to be exacted of individuals for the benefit of individuals without contract.
Of these services, the most extensive and most important class is of a negative description. It is rendered by abstinence from all acts by which injury in any shape would be done to assignable individuals.
It is by the exaction of these services that security is afforded to individuals.
The art of government has therefore been the art of extracting from the persons over whom the powers of government are exercised, service in all shapes in which it is regarded as contributing to the happiness of those same rulers.
Services are extracted by fear, through the medium of penal laws: by hope, through the medium of patronage: by delusion, through the medium of factitious dignity. By penal laws, it is only in this or that particular shape, on this or that particular occasion, that service can be extracted: by patronage and factitious dignity, it is extracted in all imaginable shapes, and on all occasions.
[* ]Some of the subjects of this chapter will be found discussed in the Pannomial Fragments, vol. iii. p. 224, et seq.
[† ]For an explanation of this division of entities see vol. viii. p. 195, et seq.