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.

CHAPTER VII.

PRESCRIPTIONS OR BEARINGS OF THE OTHER CODES OR BRANCHES OF LAW, TO THE CONSTITUTIONAL CODE.

Section I.

Civil Law.

Not only the comfort of the individuals, but the security of the whole community requires that, as well against the calamity of famine as against external hostility, individuals should be protected; the treasure of the comparatively opulent, is an insurance office to the comparatively indigent.

But forasmuch as it is only in a minute ratio that increase of happiness is concomitant with the increase of the external means of happiness, the principle of equality requires that so far as may be, without taking away the inducement to productive industry and frugality, the opulent few should be prevented from doing injury to the indigent many, by means of the power necessarily and proportionably attached to opulence: and that so often as this can be done, without the production of the sensation of loss, opportunity should be taken of breaking down large masses into smaller ones.

Hence it is that, on the death of the proprieprietor, provision is made in the civil or distributive branch of the law, to prevent it from falling entire into the lap of any single individual, in a family of brothers and sisters, to the exclusion, total or partial, of the rest.

Another instance in which the matter of the Civil Code belongs in spirit to the Constitutional Code, is—that of the sort of institution already spoken of, called a Foundation. Foundation is another name for legislation. Under the name of a founder, a man (if permitted by the legislator) may exercise those same powers in a manner not less effectual, though neither declared nor open, nor by many an eye observed.

The legislator recognised as such, has equally at his command two instruments—punishment and reward,—each of which, or both, as in his eyes occasion requires, he employs in the performance of his work. Of these two instruments, openly and immediately the founder employs but one, viz. reward: but immediately, and to many an eye secretly, he employs the other likewise. For in truth, such is the connexion between those two instruments, that he who has either at his command, has at his command the other likewise: each of them is in effect contained within the other. Subtraction of reward is punishment; subtraction of punishment is reward.

Under a weak and purblind legislator, a foundation is an instrument with which the crafty individual may undermine the power of the legislator and set up his own in the room of it.

Under a crafty legislator, a founder with his foundation, may be an instrument with which, without being seen to be engaged in it, the legislator may give advancement to his own private, at the expense of the public, interest. He may thus at once demoralise and disintellectualize the great body of the people over whom he rules.

Take the following example: and in this one example behold how thin and indeterminate are the divisions by which the abuse and the use are separated.

First take a foundation having for its object the diffusion and advancement of this or that branch of art and science; or in a word, of all branches taken together. What can be more innoxious? What can be more manifestly useful and proportionably laudable?

All this while, whether it shall be useful or in the highest degree noxious, depends upon a difference, to many an eye so slight as to be imperceptible, in the mode of teaching to which the mass of reward, which the foundation has for its instrument, is annexed.

Leave the whole field open to inquiry, unreserved and unfettered inquiry,—useful or useless, everything that is done and said is at any rate innoxious: for if from one mouth noxious matter issues, from another comes medicinal matter, which neutralises it and destroys its effect.

But, be the portion of the field what it may—on that portion be the question what it may—let the supposed service be, giving support to one side of that question, to the exclusion of the other—now it is that the reward becomes poison. To gain it, he whose real opinion is on one side of the question pretends it to be on the other; and employs his endeavours in inculcating it as if it were his own. Here, then, if insincerity be immorality, already behold the moral poison. But to no man is the idea of his own immorality a pleasant one. Feeling it an unpleasant one, his endeavours will be naturally and constantly at work in ridding him of it. For this purpose, nature affords, and on every occasion presents, an appropriate process. It may be styled the self-deceptive process. The receipt is this. Be the subject what it may, be the question what it may, be the side of the question what it may, that you have pretended to espouse, direct your attention to the arguments in favour of that side, keeping it turned with inflexible perseverance against all arguments in favour of the opposite side.

If your understanding is not more or less above the level of that of the ordinary run of men—if at the same time the reward with the punishment included in it, is strong enough to give to your attention the requisite fixity, sooner or later, the opinion, howsoever at one time scorned by you, becomes yours.

Were the treasures of both the Indies exhausted for the purpose in the offer of a reward, support could not be purchased for an opinion more palpably and flagrantly absurd than those are, which minds in countless millions have actually been made to fold in their embrace.

Introduce religion, and with her, in addition to insincerity, comes cruelty, or in the words ascribed to her, hatred, malice, and all uncharitableness. To cause men to teach some absurdity or other, treasures, up to the value of whole kingdoms, have been employed. To cause men to force themselves into the belief of it,—or rather, for that can scarcely be said to be possible, to keep out of their minds the disbelief of it,—eternal terments, i. e. the fear of them, has been, and continues to be employed. But, proportioned to the difficulty of keeping out this unbelief, and thereby of purchasing a supposed security against these torments, will be the uneasiness experienced by the miserable patient, as often as any consideration tending to produce such disbelief is presented to his view. Proportioned to this uneasiness, will of course, be the anger excited in his mind, the anger of which any man who has contributed to the production of this uneasiness, will be the object. This anger, there are two classes of persons by whom it will be shared: the hypocritical knave by whom, with the full consciousness of its absurdity, the dogma has been inculcated, and the miserable dupe by whom, for want of courage to open his eyes to the absurdity, it has been embraced.

Now then comes the cruelty. The more flagrant the absurdity, the greater the difficulty of causing men either to embrace the dogma or to pretend to embrace it. The greater the difficulty, the greater moreover the anxiety of the tyrant, by whom the command to profess the belief of it, has been issued, lest universal indignation, with its consequences, should take place of the universal prostration of understanding and will, the production of which he has thus hazarded himself to endeavour at. To quiet this anxiety, to satiate this anger, if moderate punishment is not sufficient, immoderate must be employed: and thus in Spain and Portugal, have come those temporal and visible burnings, forerunners and prototypes of the announced immediately future, though as yet invisible, ones. Such are the scenes which in Spain and Portugal, the hypocrites and their dupes have witnessed and enjoyed: such are the scenes which, in England hypocrites and their dupes (unless in England, man is an altogether different animal from what he is in Spain and Portugal) have never ceased, nor as long as man is man, can ever cease, to wish to witness and to enjoy;—to enjoy in that same land which, two centuries and a half ago, presented these same scenes to the wisdom and piety of their ancestors.

Section II.

Penal Law.

To the vocabulary of tyranny belongs the word mercy. The idea expressed by this word is a sort of appendage to, and antagonizes with, the idea designated by the word justice.

The word justice, as but too commonly employed, matches with the word deserved, as applied to punishment. In this sense, penal justice is exercised by the application of punishment on the occasion on which, and in the quantity in which, it is deserved. In this case, if mercy be exercised, it is in opposition to, and at the expense of, justice: in so far as mercy is exercised, justice is not done. What in this, as in every case, the greatest happiness of the greatest number requires, is—that if, on the occasion in question, the application of the punishment in question would be conducive to that happiness, the punishment should be applied; if not, not: if, in either case justice is administered, no such thing as mercy is exercised in either case. Under a government which has, for its actual end, the greatest happiness of the greatest number, thus it is that mercy is unknown. Mercy unknown—and why? Only because tyranny is unknown. Under a representative democracy—under the government of the Anglo-American United States, for instance—mercy is unknown, or at least might be so with great advantage, and therefore ought to be unknown. Under that government, for a functionary as such to stand up on any occasion, and say,—I will, on this occasion, show mercy, would be as much as to say—the power of a tyrant is in my hands, but on this occasion I will not exercise it. The surgeon, when it appears to him that it would be for the greatest happiness of the individual under his care that one of the patient’s legs should be cut off, does he say—I will do justice upon this leg. As little, if it appears to him that, without cutting off the leg, a cure may be effected, does he say—I will show mercy to this leg.

It is for the accommodation of tyrants, and that they may receive tribute of praise, which soever course they take, in whichsoever shape they do mischief to the public, or in which way soever they afford gratification to their own passions and sinister interest.

If for the advancement of personal interest or for the gratification of present passion at the expense of lasting personal interest, punishment is applied, justice is the word: if, for the advancement of personal interest in that same quarter, or for the gratification of this or that official servant, interfering gratuitously, or for a price, punishment is forborne to be applied, mercy is the word: in the one case, insult is offered to the public in one shape; in the other case, in the other. In the one case it is on the score of wisdom that the praise so sure to be bestowed is bestowed—in the other case, on the score of humanity, benevolence charity, clemency, what you please: clemency is a name given to supposed or alleged beneficence, when exercised by the exclusion of punishment, and seated on a throne.

The greater the aggregate quantity of punishment ordained by law, the greater is the quantity of mercy capable of being exercised by particular prerogative, in opposition to, and at the expense of, the general tenor of the law. Accordingly, where mercy is most heard of, be assured there is most tyranny. The making a ground for the exercising of tyranny under the mask of clemency, is one purpose for which punishment without limit or measure is anywhere by law established; the making a ground for the praise of benevolence, and thus providing malevolence and tyranny with a mask, is another purpose.

Under an absolute monarchy, malevolence, selfishness, tyranny, and thence punishment established by law, being unbounded, mercy is at times scattered with a proportionably lavish hand. When it has been the pleasure of the monarch to go through a matrimonial ceremony with a partner of the same class, punishments have been remitted by wholesale, gaols delivered at one stroke of the innocent and the guilty: criminality in all its shapes let loose, to recommence its ravages, and evil in all its shapes thus sown over the whole field of action.

When in the person of another alleged supporter to the throne, providence has been pleased to add another mouth to the mouths employed in devouring the produce toiled for, by labouring hands, here has been another occasion for the reproduction of evil in those same shapes.

Under a limited monarchy, the quantity of punishment capable of being applied, not being so completely unlimited, the quantity of mercy for which, with its due reproach and undue praise, there is room, is not quite so great. Room for it, however, always exists, and is always occupied in enormous superabundance. The unofficial intercessor is mostly kept out, by the official arbiter, who, with the language and deportment of obsequiousness, on pretence of responsibility, dictates on each occasion to the vice-god, which of two courses his next to divine pleasure shall take.

In England, while men are condemned to death by hundreds,* death is inflicted on them by units: the difference between the unit and the hundred has for its cause the purposes above-mentioned.

In practice, the privilege of thus abandoning men to destruction, or saving them from it, at pleasure, is shared among functionaries in rank, office, number and proportion,—all indeterminate; or, at best, hidden from the eyes of all but the few who share among them a sinister interest, in the abuse of it: a judge or lawyer of one class or denomination on one occasion, of another on another. Along with, and above them all, stands the arch-functionary, who numbers among his titles that of keeper of the king’s conscience: a man out of whose mind, by the indiscriminate defence of right and wrong, (with no other difference than the predilection naturally conceived, for the best customer,) everything that, in any other mind, has ever been designated by the name of conscience, has long before his taking that exalted conscience into his keeping, been obliterated.

Remission of punishment, yes: for that, there may be good reason on various occasions; but they are all of them capable of being, and all of them ought to be, specified.

In one word, mercy and justice are incompatible. In a government where there is room for mercy, it is because justice is overruled by cruelty. As mercy is a subject of praise, the more cruel the tyranny, the greater is the room made for praise.

A few words as to Conspiracy, Treason, and Libel.

Under a representative democracy, no place can conspiracy ever find for itself: for needless, and to this prefix or subjoin impossible,—such are the properties which it would find belonging to itself.

Impossible: for there is nobody to conspire against. Under a monarchy—under an absolute monarchy at least, there is a person to conspire against: there is the monarch: for if you get possession of his person, you may get possession of his power. Under a representative democracy there is no such person. For, by getting possession of the chief magistrate, you cannot get possession of an atom of his power.

In the import of the word conspiracy, where the act is treated on the footing of a crime, the idea of secrecy is included: to conspire, is to make mutual communication of opinions, desires, and eventually-intended endeavours, in secret. These desires and endeavours, if they bear any relation to the government, have, for their object, the bringing about some change in the government: which change, howsoever desirable in the eyes of those who thus project it, would not (so they are assured) be so in the eyes of the existing rulers;—for, on the supposition of its being so, the secrecy has no use. In an absolute monarchy, no change presented by any pair of hands more than one, can be agreeable in the eyes of the monarch or of any under him. If in itself it be agreeable to them, and it had not of itself presented itself to any of them, they may vouchsafe acceptance to it, if presented to them by no more than a single pair of hands, and in a cringing attitude: yes, and even if presented by any such hands, after conference on the subject between two or more persons in an erect posture. But in this case, while they are availing themselves of the plan, they will punish the authors as being conspirators.

Under an absolute monarchy, any discourse of a nature otherwise than agreeable to the monarch, (or any of those by whom execution and effect is given to his will,) is, if uttered by word of mouth in the hearing of any other person, a seditious discourse; if committed to print or writing, a seditious libel; such of course is the character of every discourse by which intimation is given, that in this or that particular, still more if in general, the system pursued, or the conduct of those who act under it, might if different from what it is, be better than what it is,

Under a limited monarchy, the case is, in these respects, the same.

Under a representative democracy, suppose conspiracy not impossible—suppose it not groundless—still there could be no need of it. Under a representative democracy, individuals in any numbers, may, in any places, at any time, meet, and say, and hear, whatsoever (whether in relation to the system pursued, or in relation to the conduct of those who act under it) is agreeable to the respective speakers; to whatsoever degree it may be otherwise than agreeable to the hearers, or to their common rulers. Be the purport of what is thus said what it may, the speaking of it will not be seditious speaking: written or printed, unpublished or published, a paper in which it is contained will not be a seditious libel. Suppose a proposition made for killing, or beating a judge, a governor, a president: for pulling down or plundering his house, a proposition to any such effect, if followed by any correspondent endeavour, will be an offence against person or property, as the case may be, and punishable as such: for a judge, a governor, a president, is an individual. But in neither case would it be either treason, or say, lese majesty, divine or human, or so much as sedition: at any rate, if by the legislature of any such state, the judge was suffered to punish it as such, it would be in humble imitation of an original, by the imitation of which on any one occasion, they ought to be covered with shame.

Under the general government of the Anglo-American United States, there is no such thing as a seditious libel. Charge the president of congress, charge the vice-president, charge the chief justice with having taken a bribe—do this in print, circulate the print all over the United States, no one of them will cause you to be punished as for a seditious libel, no one of them will have it in his power so to do: for no such injury will any criminal prosecution lie: no information granted, ex-officio, without motion: no information granted on motion: no, nor so much as any indictment. Action civil, i. e. non-penal, yes, viz. as for defamation. Prove thereupon, the imputation to be well grounded, in a man on whom it has been cast, and he will be punished accordingly: though such is the effect of blind obsequiousness to a corrupt original, be the evidence ever so complete, it will have to be delivered over againin a needless and worse than useless prosecution, required by lawyer-craft for the purpose.

If you fail in the proof, you may be punished for the injury, by being obliged to pay money on that account to the individual injured: and it is right you should be so, if you had not before you a reasonable ground for believing the imputation: much more, if you are conscious of the falsity of it. In this there would be nothing but what is right: for though he is neither a vice-god, nor a magnate, the person in question is an individual, and an individual whom you have injured.

Under a representative democracy, though there can be no lese majesty, divine or human, nor anything of that stamp, there may be hostility: for there may be disagreement; disagreement by men in any numbers on two opposite sides: and how improbable soever, such disagreement may rise to hostility. Here then is war: and this war a civil war. It will be carried on as in the case of ordinary war, carried on between civilized nations: it will be carried on, by each in such a manner, as shall present to its view the fairest promise for the attainment of its end, with the least damage,—in the first place to itself, in the next place to the enemy. Some will accordingly, on the losing side at least, be killed, others wounded, others in the situation of prisoners, left at the disposal of the commander of the victorious army.

Having them at his disposal, how will he deal with them? Does he put them to death in cold blood, with a gang of lawyers to give form and colour to his cruelty? Will he, with any such gang for his prompters, tell them that their blood is corrupt, and that on that account it was just and necessary that their wives and children should be destitute of subsistence, and in that state kept by law, as far as practicable till they die? No: he will do nothing of all these things: the men he will keep to the best of his power; their arms he will as soon as possible take into his custody, lest they should turn them against him and his. But sooner or later hostility will give place to peace. On that joyful occasion these captives will, the whole remainder of them, be sent back to their homes and families, bodies fed, wounds healed, ignominy in no shape, either cast upon them, or endeavoured to be cast. Whence all these differences? Answer: On neither side has any vice-god been seen or fancied: and on neither side has any such word as legitimacy been pronounced.

In so far, then, as it matches with, and is determined by, the state of the constitutional branch of law, the state of the penal branch of law will, under the different forms of government, present the different aspects following:

Conscious, more or less, of the opposition that has place between their own particular interests and the greatest happiness of the greatest number: alive, at the same time, to a sense of the dangers that attach upon the situation, from which they derive that sinister interest;—haunted, not merely by a correct and adequate, but by an exaggerated image of those dangers,—under monarchy, whether absolute or limited, under aristocracy, under every form of government but representative democracy,—never, in the imagination of the ruling one, of the subruling or the influential few, can the mass of securities in which they intrench themselves be sufficient: in that part of the intrenchment which is the work of penal law, death, substituted to punishment in any less odious and more appropriate form; torture, antecedent and concomitant, added to simple destruction of life; punishment of the acknowledged innocent, added to that of the reputed guilty; confiscation; under pretence of corruption of blood, interception of inheritance; for that, and other purposes, pains of hell in prospect, under the sad necessity of not being able to apply them in present reality, and existence;—all these penal securities, put together, are insufficient to produce that inward tranquillity which conscience keeps for ever banished from those misery-bound, and misery-producing situations. Hence it is, that every act which, in those distempered imaginations, threatens to substitute to the superlatively mischievous form of government, in which they behold the source of their sinister benefits, a form in any degree less mischievous,—is, by that same distempered imagination, elevated to a rank towering above the most mischievous of those offences, by which real mischief is produced.

Treasons—political offences—state offences—offences against government, are the denominations by which acts bearing this character are, in these days, commonly designated; lese majesty divine and human, is of the number of the denominations by which, in former days, offences of this same description were, by the wisdom of the ancestors of those who number ancestry among their possessions, denominated and distinguished. Of lese majesty a division was made, but with little difference, between its parts, and between that which was human and that which was divine: lese majesty human, an offence against the power, crown, dignity, and majesty of that but too visible god, whose throne was upon earth: lese majesty divine, an offence against the power, crown, dignity and majesty of the invisible God, whose throne is in heaven.

The authors, printers, publishers, circulators, lenders, borrowers, hirers, readers, hearers—if not denunciators, of libellous discourses,—all discourses either actually displeasing to the monarch, or any of his chosen servants, have always been punished by halter, ball, bayonet, or imprisonment.

Under a representative democracy, scarcely, for offences of this class, it has been seen, can so much as a place be found. On the one hand, stand offences of individuals against individuals: on the other hand, acts of hostility by enemies against enemies. Rulers being individuals—rulers and subjects at the same time,—for person, reputation, property, and condition in life, rulers receive the same protection as subjects, and of no other protection have they, or can they conceive themselves to have, any need. Under a monarchy, by sudden death inflicted upon the chief of the government, changes, to the importance of which no limit can be assigned, may be produced. By an operation, to the same effect, upon the person of a chief magistrate, in a representative democracy, no such effect—scarce any such effect as would in any sinister estimate be worth producing, would ever be produced: another as good as he, and no better, (nor of any better would there be any need,) would, as soon as the election had run its course, step into his place.

In a monarchy, especially if absolute, take possession of the chief magistrate, you take possession of an immense part, if not the whole, of the power which is in his hands. He signs what laws and orders you give him to sign, he utters whatever speeches you give him to utter, he takes whatever oaths you give him to take: reserving to the first moment, after he is out of your hands, the signing of repealing-laws and counter-orders, the utterance of counter-speeches, the declaration that the former oaths were null and void, and the taking of as many counter-oaths, if any, as shall, in his eyes, afford a promise of being contributory to the purpose of the moment, whatsoever that purpose be.

Whatever course of conduct he has ever given a promise to pursue, with this ceremony, or sanction to the promise; if at any moment being called upon to pursue a different course, it be more agreeable to him to persevere in the original course, he will assure you that oaths, all oaths, are things sacred and inviolable. If, at the moment in question, it be more agreeable to him to violate the oath, than to keep it; he will take a distinction: all proper oaths, he will assure you, are sacred and inviolable, and, as such, ought to be fulfilled: all improper oaths are, in their own nature, null and void, and, as such, ought not to be fulfilled.

Make your way into the capital some dark night, steal into the president’s bed-chamber, through one of the windows, drag him out through it, and convey him into the hut, or boat, you have provided for the purpose, then see what you can make of him: what power you can get possession of by this exploit: what money, what arsenals, what fortresses you can get possession of: what change you can, by this means, make in the constitution. But no: whoever you are, you will do no such thing: if you are a thief, you will ransack his pockets—the man you will not meddle with, for no use whatever could you make of him.

Under a monarchy, accept the invitation of the wife of the chief magistrate, you beget a future possessor of the throne, taking your chance for keeping your head or losing it: in a representative democracy, accept the like invitation from the wife of a chief magistrate, you beget a future possessor of a farm or a counting-house: your head is not in danger; your purse is, or is not, according to circumstances.

The imputation of moral depravity does not necessarily attach, upon any endeavour, to subvert the constitution, or to oppose the power of any individual functionary or functionaries, although it be by force. No such endeavour can be used with any chance of success, unless in the opinion of a considerable portion of the members of the community, such success would be acceptable to the whole, as contributing to the greatest happiness of the greatest number.

The government of the state will, of course, defend itself against all such as in its eyes are domestic adversaries, as well as against those who, in its eyes, are foreign adversaries.

If, in the course of any such endeavour, injury be done to person, property, reputation, or condition in life, those who have been concerned in doing it, will in this, as in any other case, be exposed to the burthen of compensation, together with whatsoever further burthen has been provided, on the score of punishment: if no such injury has ensued, there can be no need of any specific infliction in the name of punishment: the notoriety of the endeavour, coupled with the notoriety of the ill-success, will itself have the effect of punishment.

For the endeavour to give aid to a foreign enemy, to the detriment of the state, the penal consequences say, shall or may be as follows, namely:—

Personal exposure, with appropriate inscription,—banishment or confiscation.

The mode of personal exposure may be as follows:—

The patient to be placed in an elevated situation, in the middle of some open space, sitting in a chair, and confined thereto, with his hands tied behind him, so as to prevent his employing them in concealing his face: the chair turning on a pivot in such sort, that by four periodical movements, his countenance may be presented to the view of all the spectators in the surrounding circle: a covering of iron, in the manner of a bird-cage, to protect him from corporeal injury by missiles from the crowd.

Banishment for any term, not exceeding a year, with imprisonment in such sort as shall be necessary for carrying the banishment into effect: the banishment, at any time before expiration, renewable for the same or any less time, by a fresh order, issued without fresh trial by the minister of justice, notified in the government newspaper: and so for any successive number of times.

Confiscation of property, total or partial: temporary, but renewable as above.

Such confiscation has not for its object anything more than the preventing the patient from employing his property to the detriment of the state. It is not, therefore, meant to be taken without reservation made for his use, of an income sufficient for the bare subsistence, at least of himself, and otherwise destitute wife and children.

Section III.

Procedure Law.

The expense, vexation, and delay incident to judicial procedure, fall most heavily on those by whom they can least be endured, viz. the greatest number: these burthens have hitherto, by official and professional lawyers, under the sanction of the legislative authority, been maximized.

Of those by whose labours the matter of abundance is furnished to the rest, by far the greater number are everywhere so circumstanced as to have no money at all to spare for any such afflictive casualties. In the case of an individual of this class, whether it be in the shape of money or of time, any the slightest addition to such expense of time and money as the nature of the case renders absolutely unavoidable, operates as a denial of justice. It exposes every individual by whom such expense cannot be sustained, to suffer oppression to an unlimited amount, at the hands of every individual by whom such expense can be sustained. It operates as a bounty upon oppression, and as an instrument in the hand of the oppressor in every case in which the power of the judicial authority is among the instruments by which the oppression is exercised.

On this account it is that the following arrangements are of such indispensable importance. Judicatories to be near each man’s house, and thence correspondently numerous. Judicatories to be paid by government, out of the common fund, and not by the individual suitors,—individuals by whom, so far from greater benefit, less benefit is reaped from the services of the judge, than is reaped by non-litigants; because that protection and that security which litigants do not obtain, non-litigants do obtain without expense to themselves.

Judicatories never to be in a state of inaction, so long as there is any business to be done.

The sort of causes which ought to have the precedence in the attention of the legislator, will be those in which the greatest number are in one way or other concerned; and among them, those which are of the most frequent occurrence. These, in the eye of the Legislator for mankind, will be the most important causes. In a code which has for its object the greatest happiness of the ruling few, in particular of the ruling one, this order will, of course, be reversed.

Section IV.

Financial Law.

Conformably to the principles of this code, no tax can be imposed for any of the purposes following:—

Augmentation of the collective splendour of the state, or of its functionaries collectively.

Augmentation of the splendour of any one functionary in particular.

Advancement of purely agreeable or curious branches of art and science.

Expenditure of money derived from any other source, is the same thing in effect, with a tax to that same amount.

Section V.

Military Law.

For obtaining equal security, it is requisite that the military means of self-defence, be spread all over the territory, and all over the population, with as much equality as possible.

That, accordingly, skill in the use of arms, and (as the means and instrument of it) the being instructed and exercised in that use, be with that same degree of equality, universally diffused.

For eventual defence against external enemies, it will or may be necessary, that at all times, a body of men, more or less considerable, be kept up, in whose instance military exercises will occupy the whole of their time. The effective force of this constantly trained and exercised class will, therefore, be of necessity, considerably greater (numbers being equal) than that of the less frequently exercised class. In the hands of a mischievously ambitious commander, this regular force might be dangerous to the independence of the rest of the community, if the inferiority which has place in the article of skill, were not decidedly more than countervailed by superiority in the article of number, on the part of that less perfectly exercised body, who compose so very large a portion of the whole population, and whose interest is nearly identified with that of the whole.

Moreover, as the members of the imperfectly-trained force, will maintain themselves, while those of the perfectly-trained force, must be maintained at the expense of the rest of the community; economy joins with political security, in prescribing the confining the perfectly-trained force within its narrowest limits.

Hence came two correspondent subordinate objects or ends in view, expressible in these words: militia force, maximized: regular force, minimized.

[* ]The punishment of death has been very considerably diminished since the year 1822, when the above was written.—Ed.