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 VIII.

PUBLIC-OPINION TRIBUNAL.

In the designation of this species of unofficial judicatory, the appellation Public-opinion Tribunal is here employed, in conformity to, and compliance with, universal usage. By the word opinion, however, an erroneous conception is liable and apt to be conveyed and produced, namely, that it is by mere opinion—by the mere exercise of the judicial faculty, that those effects, which, on the actions of other persons are so manifest, and so universally acknowledged, are produced. This conception is, however, an erroneous one; for it is only by a sense of interest, by the eventual expectation of pain or pleasure, that human conduct can, in any case, be influenced: if it is by any opinion, supposed to be formed by other men, that a man’s conduct is in any way, and in any degree, influenced, it can only be through the medium of expected action, and thence of correspondent will, on the part of the individuals in question, that the influence can be produced: the expectation that, by the opinion, favourable or unfavourable, correspondent will, will be produced, and by correspondent will, correspondent action, in the shape of good or evil offices; and by such good or evil offices on the one part, pleasure or pain on the other.

The members of the public-opinion tribunal in a community, are the members of that same community, the whole number of them, considered in respect of their capacity of taking cognizance of each other’s conduct, sitting in judgment on it, and causing their judgments in the several cases to be made known. In the English House of Commons, in the formation of a committee of the members for this or that particular purpose, an order that now and then is seen to have place is, that all who come to the committee, shall have voices. The members of the public-opinion tribunal, are to the members of the community at large, what the members of the House of Commons’ committee thus formed, are to the members of the house.

The public-opinion tribunal may be conceived as sitting and acting in full assembly, or through the medium of a committee, a specially and actually appointed committee.

In the character of a full assembly, whatsoever is said of it, may contain more or less of truth, but must unavoidably be mixed with more or less of fiction. The best course, therefore, will be to consider it as acting by a committee: in this case, all fiction may be excluded. That which is real, being thus explained, the explanation may afterwards be applied with advantage, to the mixture of the real and the fictitious.

As this tribunal, by the counterforce, which, by its punitive power, it applies to the power of government, contributes to keep it in check, and keep its course within the paths indicated by the greatest happiness principle, (thereby operating as a security for appropriate moral aptitude in the conduct of rulers as such,) so may it, in no inconsiderable degree, by its remunerating power.

There are two distinguishable forms in which influence, more or less effective, may be given to the will and understanding of the great body of the people: in one form, their opinion—that is, the opinion of such of those whose opinion can be brought to bear upon the subject in question—is accompanied with a will, clothed with power; in the other form, whatsoever effect is given to what passes in their minds, it is by the declaration of their opinion alone that the effect is produced. In the one case, of any declaration of their opinion, obligatory effects are made to follow it; in the other case, no such effects are made to follow it.

Of the case in which its opinion receives an obligatory effect, the function of a jury is an example. A jury, in so far as it is what it professes to be, is a sort of committee of the whole body of the people,—a section of that vast polypus. The decision or verdict of the jury is productive of an obligatory effect, i. e. it determines the fate of the cause. Say, public-opinion tribunal, adopted into, and constituting a constituent part of the legal tribunal.

The case in which the opinion has no obligatory effect would have place, on the supposition, that the verdict of the jury, though pronounced in the same manner as in the former case, would not be obligatory upon the judge, but would leave him at liberty either to give effect to it, or to give effect to a decision of his own framing, howsoever different from it, or even directly repugnant to it. Say, public-opinion tribunal, delivering verdicts, but those verdicts not obligatory.

A third mode would have place, if a certain number of men, in the character of a section of the public-opinion tribunal, stood engaged to be present during this or that part, or during the whole progression of a cause or suit; but without either obligation or power, or, at any rate, without obligation to deliver any conjunct portion of discourse in the character of a verdict. Say, a silent jury.

In the second mode, the effect produced on the mind of the judge, by the counterforce thus applied, would be produced by what they were known by him to think: in this third case, by what they were supposed by him to think.

These judges, by whom every person and everything are to be judged, who, it may be said, are they? Who but the members of that body, the vast majority of whom are, and always will be, in all places, and at all times, the comparatively ignorant and weak judgmented: and is it by these least informed, that all better qualified judgments are expected to be influenced and guided?

Answer: It is not from any particular judgment, ascertained to be on any occasion actually delivered by them, that the good here looked to, is expected. What is not proposed is, that the votes of any of them, shall on any particular question, be collected: on no other occasion than that of an election of deputies will that be done, in regular course. It is from the opinion expected to be on each occasion inwardly entertained by them, that the good is looked for. It is not from anything expected to be said, only from what it is expected will be thought, that the benefit is expected. Included in this aggregate judgment, are the judgments of the most unapt, as well as those of the most apt.

By a functionary, especially if acting singly, as often as any act of misconduct is committed, the consequence of it, sooner or later, or at any rate the tendency of it, will be to produce, in some shape or other, evil, that by individuals in a number more or less considerable, will be felt: in a word, suffering in some shape or other on the part of these same individuals. To all, by whom any such suffering is experienced, will at any rate be known, that they do experience it: and among those who experience, added to those who witness those same sufferings, there will always be some, who being qualified to trace them to that misconduct in which, as above, they have their source, will naturally be disposed to make communication of such their discoveries to the rest. As to the opinions by which, in each case, the cause of the suffering is undertaken to be assigned, they will commonly be, many of them wrong, but on each occasion, they may be, for aught that the rulers can know, in any number, right: and it is by the fear of the conduct that may be the result of these opinions, that the check which applies itself to the conduct of the ruling few, is applied, and the corresponding benefit produced.

In his quality of member of the public-opinion tribunal, every member of the constitutive body in giving expression to a sentiment of disapprobation so grounded, exercises a judicial function: any such expression, if made in the hearing of others, may be considered as a motion made for censure on the conduct of the functionary in question: if by any author of such virtual motion, in consideration of such supposed delinquency, a vote be given at any election, in disfavour of such functionary, the part acted by such vote may be considered as an act done for the purpose of giving execution and effect to the condemnatory judgment, so formed as above. On the occasion of an ordinary suit between individual and individual, or between government and individual, any such union of the functions of accuser, judge and executioner, would be incompatible with justice: but in the case here in question, all that it amounts to is this, namely, that for his guidance in the exercise of his share of constitutive power—the giving of his vote—the individual takes the only course which the nature of the case admits of.

The following may be employed amongst other means of bringing the force of the popular or moral sanction to bear with greatest advantage upon the conduct of public functionaries in the several departments:—

In every apartment in which a public functionary sits to do business, keep in view of the public, a table in placard form, containing admonitory rules, and notices, having for their object the prevention of the moral failings, to which by his situation, the functionary is most exposed. To these admonitory rules and notices, the distinction between universally-applying and particularly-applying, will be found applicable.

I. Notices.

1. Name of the edifice, over every door that opens into, or is visible from, the public highway.

2. In each edifice, over each door of each chamber, the name of the chamber.

3. In each chamber, over the seat occupied by each functionary, the name of the office, and the proper name of the functionary who sits in it.

4. In each chamber, over the door, designation of the hour at which the functionary ought to take his seat, and of the hour at which he is at liberty to desist from the exercise of his office.

5. So, an almanac, marking the months, weeks and days of the attendance in each year.

II. Admonitory rules.

1. Admonitory rules of general applicability, expressive of the duties of the functionary.

2. Admonitory rules of general applicability, expressive of the duties of persons attending at the office as having business therein.

3. Admonitory rules of general applicability, expressive of the powers given to the functionaries in question, for preventing interruption of the business of the office, and annoyance of them in the exercise of their functions.

Rule of general applicability, expressive of the duty of the functionary. Duty of urbanity: abstinence from the insolence of office.

(1.) In this office, let the functionary consider, that it becomes him not, in quality of his office, to assume any superiority over any person having business therein: that, in his quality of public functionary, his situation with reference to every such person, is rather that of a servant than that of a master, he being remunerated at the public expense for the rendering of such services as appertain to the nature of his office.

(2.) If in his dealings with any suitor to the office, any expression which by such suitor is regarded as an expression of contumely, ill-humour, or undue impatience or contempt, be uttered by the functionary, the suitor, may, if he pleases, upon the spot, commit the same to paper, and require of the functionary under his signature to avow or deny the having employed it. If the functionary refuse, a memorandum may be made of such refusal, in order to form the groundwork of an accusation before a judicatory.

Of the powers given to the public functionary, the sole object is, the enabling him to fulfil his duties: to render to the public, the services for the rendering of which the office has been instituted. The institution of it, has not among its objects, the affording gratification to the vanity, much less to the pride, of the functionary, at the expense of the feelings of those who have business to do at his office.

Of these admonitory rules, the use is, to apply the force of the moral sanction, in cases when, by reason of the overweening power of the functionary, or in case of transgression the impossibility or difficulty of obtaining adequate evidence, the force of the political sanction is not sufficiently applicable.

A solemn engagement, in which either the rules themselves or the substance of them is repeated, should be pronounced by the functionary in the face of the public, upon his entrance into office. It might, if worth while, be repeated periodically: for example, in case of a new constitution, on the anniversary of the celebration of the constitution.

For what purpose professedly employ and seek to increase the power of this unofficial judicatory?

Answer: To a representative democracy, this unofficial, unpaid, and incorruptible judicatory, is an instrument of support: and in regard to it, the object and endeavour will be, to maximize the rectitude of the decisions given by it, in the several instances; and in so far as that rectitude has place, the force with which it operates.

To every other form of government, it is by correspondent causes rendered an object of terror and anxiety: though the magnitude of its power is universally acknowledged among them. In proportion, however, to the magnitude of the force attributed to it, is the endeavour to oppose whatsoever is salutary in its influence: that is to say, either to give to it a sinister direction, by the united power of force, intimidation, corruption, and delusion; or, in so far as the giving to it any such sinister direction is regarded as impracticable, to exclude from its cognizance every topic that presents itself as bearing any relation to politics, morals, or religion.

The tribunal of public opinion may be considered as composed of two sections: the democratical and the aristocratical. On every occasion, the conduct of every human being will be determined by his own interest, taken in its most extensive sense: that is, his own interest, according to his own conception of it, correct or incorrect, in relation to it at the moment of action. On every occasion, the opinion acted upon by each individual, in his character of member of the public-opinion tribunal, will therefore be determined by his own interest: so therefore will that of the whole tribunal, considered as a whole, be determined by the interest of the majority of those who act as members.

The interest of the democratical section, is that of the majority of the members of the whole tribunal taken in the aggregate: it is consequently the interest of the subject many: the opinion on which it acts will be that which is in the highest degree contributory to the greatest happiness of the greatest number, in so far as the conception entertained by the several members in relation to their respective interests is correct.

The interest of the aristocratical section of the public-opinion tribunal, is that of the members, or the majority of the members, of that portion of the entire number of the members of the political community, which is composed of the ruling and otherwise influential few: of the highest rank of the functionaries of the state, with the addition of such other classes, whose particular interests are in league with theirs. The opinion on which, as in their several other characters, so in this, they will act, will therefore, in each instance, be determined by the interest common to the members of this section. But in a great, not to say the greatest, part of the field of morals, including that of legislation, the interest common to the members of this narrow section is in direct opposition to the interest of the other more comprehensive section.

The democratical section, or the section of the subject many, is composed chiefly of the productive classes, including under that denomination, those occupied in giving facility to the distribution of the good things produced: without which distribution, production would not be of any use. The section of the ruling and otherwise influential few, is composed principally of the non-productive classes.

Corresponding to the deviation in regard to interest, will be the several opinions pronounced and acted upon by these two sections. By the democratical section, disrepute, or say disapprobation, will be attached to all such actions, as, in the conception of its members, are detrimental to the universal interest: and that in a degree of force proportioned to the degree of the injuriousness: approbation to all such actions as, in the same conception, are in an eminent degree contributory to the universal interest.

The aristocratical section will be determined by the respective opposite interests, in the disposal of such expression of disapprobation and approbation as it is respectively in their power to make with regard to human conduct, in every part of the field of law and morals.

By approbation and disapprobation understand, in both cases, that which is expressed and otherwise acted upon: immaterial taken by itself, is any which is not expressed or acted upon.

Of this aristocratical section, there is commonly a sub-section, by whom, in appearance, opposition to the work of corruption will naturally be maintained. This sub-section is composed of such of those corruptionists, who, being such in desire and expectation only, without being in connexion with those in possession, will in this way, as in all others, be making war with them, which they can no otherwise do than by accusing them at the bar of the public-opinion tribunal, and using their endeavours to draw down upon them the discontent and resentment of the people. But in no such apparent endeavour have they ever, or can they ever, in the nature of the case, be sincere, as has been fully explained elsewhere.*

Unhappily for the members of the democratical section, their conceptions, their judgments, their suffrages, their language, have till this time been placed almost completely under the guidance, and almost, as it were, at the disposal of, those of the aristocratical: and thus it is, that by the sinister interest of these their adversaries, not only have they been placed and kept under the yoke of misrule, but the only instrument in which they could seek relief from the disorder of misrule, has been employed, in a great degree, in the aggravation of it, and in keeping them, as far as may be, from all thoughts of applying a remedy.

Offences against the person, property, reputation, and condition in life, including power, of individuals,—under these denominations may be included all modifications of conduct detrimental to the happiness of individuals, individually considered, and this whether opposed or not by the power of the political, including the legal sanction. It is the interest of a member of the democratical section, as such, that no such misdeeds as come under any of these denominations should have place in any instance.

With respect to the aggregate mass of these same misdeeds, it is the interest of a member of the aristocratical section, as such, that no offence of any one of these descriptions should have place to the detriment of the happiness of that particular section to which he belongs. But, in so far as the effect of any such misdeed is to operate to his own benefit, though it be to the detriment of the more numerous class to which he does not belong, it is, in his view of the matter, generally speaking, his interest, that to the extent of that case, those misdeeds, in all their several shapes and denominations, should be as abundant as possible: that it should at all times be in his power to inflict on all the individuals belonging to the democratical section, evil in all those shapes, in so far as, by the infliction of it, gratification to himself, in some shape, shall thereby be produced.

It is his interest to have it in his power to beat, maim, or otherwise maltreat, for example, the person of every other man whose lot it has been to fall under his displeasure: to cover him with ignominy, on the supposition of his having committed misdeeds, which in truth he has not committed: to deprive him of any part, or of the whole, of his means of subsistence: to deprive him of the power of directing the conduct of his children during the time of their immaturity: by fraud or force to violate the person of his wife, his daughters, or sisters: all this without danger of suffering on, his own part, on the ground of any of those misdeeds, at the hands of law or otherwise; on the contrary, to possess the assurance of seeing the force of the law employed in securing him against suffering in any shape, on the account of his having committed them.

A right of this sort—this right of doing wrong is, in so far as it is enjoyed by the members of a small class, at the charge of the aggregate of the members of the community, termed in the laws of all nations a privilege; in so far as it is possessed by a single individual, it is, in the language of English law, termed a prerogative.

It is the interest of every member of the aristocratical section, as such, that there should exist a class of citizens, provided he be one of them, in whose power it should be to enjoy benefits in all imaginable shapes, at the expense of the greater number.

If by any efficient cause, the members of the aristocratical section receive the power of producing, on the part of the members of the democratical section, suffering in all manner of shapes, for the gratification of their own appetites, while the members of the democratical section, as such, stand debarred from doing the like, to the injury of the members of the aristocratical, a natural consequence is, that the judgment entertained, as well as declared, on this subject, should, on the part of the members of the democratical section, be unfavourable and condemnatory with relation to this state of things, and so far to a government in which any such state of things is kept in existence.

But for the correspondent and opposite reason, a consequence equally natural is, that of the members of the aristocratical section, as such, the judgment pronounced on this same state of things should be favourable and commendatory.

What is the conclusion of all this? That in so far as it differs from the judgment pronounced by the democratical section, every judgment pronounced by the aristocratical section will be erroneous—erroneous, and to the prejudice of the greatest happiness of the greatest number.

From this it follows, again, that in every factitious assemblage of functionaries, instituted for the purpose of serving as a representation of the public-opinion tribunal, all individuals of whom it appears that they appertain to the aristocratical section, ought to be either excluded altogether, or if admitted, not admitted but in a number extremely small: admitted, not in the quality of voters, where votes would have an obligative effect, but only in the quality of advisers and instructors.

A jury may be considered as a section of the public-opinion tribunal, called in, on a certain occasion of judicature, to serve as a counterforce to the operation of particular and sinister interest in the situation of permanent judge.

In the practice of English law, there are two sorts of juries—the petty or common, and the special. The common jury is a committee of the democratical section; a special jury, of the aristocratical. The common jury is a safeguard against oppression: the special jury an instrument of oppression and injustice, fabricated by the corruptive system.

The judgment of the democratical section has many errors in it: it has some that are common to it and the aristocratical section: it has some which are peculiar to itself. But in proportion as it becomes more and more mature, it becomes more and more favourable to the universal interest; whereas the judgment of the aristocratical section becomes more and more adverse to the universal interest.

The members of the aristocratical section being as much members of the community as those of the democratical section, they have every one of them a vote in this tribunal. And this vote not only has a force and effect not less than that of a member of the democratical section, but a force and effect much greater, rising above it in a scale composed of numerous degrees of magnitude. Still, however, in proportion as the number of the members of the community at large, in the habit of acting in this character, increased, the ratio of the numbers in this more extended section, to the numbers in the more contracted section, would increase: and thus the members of the aristocratical section being constantly in a minority, the whole section would be without much or any influence. To preserve their influence, they, therefore, make common cause, secede from the democratical members, and sit in a section apart, forming as it were a house of lords—having an interest of its own, distinct from and opposite to, the interest of the remainder, and acting in pursuance of that particular and sinister interest.

If, in a committee of the public, the presence of a member of the aristocratical section of it can, with reference to the interest of the public taken in the aggregate, be of use, it can only be with a view to appropriate intellectual aptitude, knowledge and judgment taken together. In respect of moral aptitude, it can scarcely happen but that in comparison with an average number of the democratical section, he will be inferior: his situation exposing him to those temptations from particular and sinister interest to which the member of the democratical, as such, is not exposed. But whatever knowledge and judgment is possessed by a man, communication may as easily be given without a vote, as with a vote, possessed by that same individual. If, then, there be any preponderant demand for the assistance of a person of that class, with a view to accession of appropriate knowledge and judgment, a single individual of that class may be regarded as sufficient, whatsoever be the number of the remainder: in which case, his having or not having a vote in common with them will hardly be worth contending for.

As practice and experience under the constitution in question increases, any deficiency which at the outset may have place in regard to these requisites, in the instance of the democratical members, will be receiving continual supplies: the demand, therefore, for any such aristocratical assistance will, in the same proportion decrease.

In comparison with the aggregate number of the members of the democratical section of the public-opinion tribunal, that of those of the aristocratical will be small. Here, then, is another reason why the number of the aristocratical members in each such committee should be small: for the larger it were, the greater would be the number of those on whom the burthen of such attendance (in proportion as the attendance were felt as burthensome) would be pressing.

From interests, real or supposed, come desires: from desires come expressions of will and expressions of opinion, for the purpose of drawing through the medium of opinion other wills into a coincidence and conformity with a man’s own. From the united force of an adequate number of wills, in appropriate and adequate situations, come legislative arrangements.

But, in the drawing together of opinions, great is the advantage which the aristocratical section has over the democratical. In the aristocratical section is the acknowledged standard of taste; and the taste of the aristocrat is always conformable to, and to a great extent determined by, interest—by their separate and sinister interest. To increase their own importance, the ambitious youth of the democratical section, and those who float between the two sections, make a point of adopting declaredly the tastes and opinions of the aristocratical, that they may be regarded as belonging to it, and be accordingly respected and courted.

By substituting the principle of taste to the greatest happiness principle, taste is made the arbiter of excellence and depravity; and thus the great mass of the community is in the very sink of depravity. Witness the use that is made of the words bad taste and disgusting. Bad taste pours down contempt: disgusting is a superlative above flagitious,—it is a quasi conjugate of taste and bad taste. Those of the democratical section, in so far as they adopt such expressions, act in support of the hostile section against themselves. For the rich and powerful will always be the arbiters of taste: what is an object of disgust to them will, to those who follow this principle, be an object of disgust likewise. But that the poor, labouring and non-labouring,—all those who cannot afford a clean shirt every day, and a suit of clothes every two or three months,—are, to the men of the first circle, objects of disgust, is altogether beyond dispute.

As to distinction between these two sections,—to draw any determinate boundary line,—a line, on the one side of which shall be the situation of the several individuals belonging to the one section; on the other side, all the several individuals belonging to the other, is plainly precluded by the nature of the case.

If, of the superiority in question, there were but one element, say factitious dignity, yes: to the aristocratical belong all who possess any particle, however small, of this creature of the imagination; to the democratical all who have not any particle of it. So, perhaps, if instead of factitious dignity it were power: understand political power, to the exclusion of domestic. So far, then, as depends upon two of the species of matter of which aristocratical superiority is composed, yes. But what remains is the third, composed of the matter of wealth. To this species attach two causes of impossibility: one constituted by the article of quantity, the other by that of time.

First, with reference to quantity. As where physical light is concerned, it is impossible to say where dullness ends and gives place to brightness; so is it to say where poverty or indigence ends and gives place to affluence. So as to time. Suppose the quantity determined, and thereby the section to which each man appertains. For to-day, good: but to-morrow, some men, in any number, by increase given to this quantity, have, from the indigent class, been lifted up into the opulent: others from the affluent been sent down into the indigent class.

Nor yet, with a view to action, to influence on the conduct of the individuals in question, are the above, any of them, the immediately operating efficient causes. Of action the sole efficient cause is interest, if interest be taken in its most enlarged sense: i. e. according to each man’s perception of what, at the moment in question, is his most forcibly influencing interest: the interest determined by social sympathy and antipathy, as well as that which is of a purely self-regarding complexion, included.

Thus to the purpose of action, to the aristocratical section belong all such individuals who, by hope of factitious honour, power, or wealth, are dependent on the members of the aristocratical section: so to the democratical belong all those who, their self-regarding interest in any of these shapes notwithstanding, are listed on the democratical side by sympathy with the sufferings of those belonging to that section, or by antipathy towards this or that portion of the aristocratical section: belonging in reality to a side to which they are opposed in appearance.

[* ]See Plan of Parliamentary Reform, and other Tracts, towards the end of vol. iii.