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 XVI.

SUPREME LEGISLATIVE.

Section I.

Legislature—single or divided.

The hands in which the supreme legislative power is lodged ought to be located and dislocated by the great body of the people.

The hands in which this power is lodged ought to be, not those of a single individual but those of a numerous body.

Of this body the members ought to be located and dislocated by the electors of so many territorial districts, into which, for this purpose, the whole territory of the state ought to be divided.

This position being considered as established, comes now the question—whether the institution of one such numerous body being determined upon, one other, or any more than one other, ought to be added?

The answer is—not so much as one other: in which answer is included a negative upon every greater number.

If, in addition to this first body there be a second, this second will either be a body having an interest not in any way opposite to the interest of the great body of the people, or a body having an interest opposite in this or that way to the interest of the people. Under the greatest-happiness principle to say, that among the functionaries sharing in the supreme legislative power, a body having an interest opposite to that of the people, ought not to have place, is as much as to say, that it is against the interest of the people to be under the government of men having an interest opposed to theirs, and in a condition to give effect to that particular interest at the expense and by the sacrifice of that universal interest.

Why not give to a permanent aristocratical body, kept up by hereditary succession, and increasable by the monarch, a negative on all laws, with or without an initiative? Why not, as in English practice and language, two houses? Because the evil effects are many—the good effects none! Because in every member of such a body, the elements of relative inaptitude are the same in kind as in the situation of the monarch, and howsoever in comparison of that situation inferior in degree, yet at all times sufficient to secure for the joint benefit of king, lords, and commons, at the expense of the people, the consummation of the sinister sacrifice. Whatsoever tends to give increase to the amount of that sacrifice will be sure of their assent: whatsoever tends to apply restriction to it will be sure of their dissent.

Against the just resentment of the people, this body will serve as a screen to the monarch.

To the splendour played off by the monarch upon the imagination of the people, the members of this aristocratical body will add whatsoever factitious splendour their persons are encompassed with.

No advantage bearing reference to the greatest happiness of the greatest number—no such advantage did man ever attempt to bring to view, in the character of a reason for a House of Lords: for an assembly composed of members of the privileged order sitting by hereditary succession or for life.

Benefit to the monarch, yes: benefit to the aristocracy, yes: to the monarchy it gives stability: to the aristocracy, in all its parts, profit by increase of power; profit by a share more or less considerable in legalized depredation: the house will not let the king come in for a share, unless the king will let the house come in for a share.

As to the greatest number—as to the great body of the people: greater would be the advantage to them if wolves in equal number, or in a number by ever so much greater, were imported from a wolf country, and turned out loose. The wolves would in process of time be killed, and for every wolf killed there would be a wolf skin, which would be good for something. The Lords, though each of them would do more mischief than many wolves, would not be killed: and if they were killed, their skins could not be put to any use.

There remains therefore, as the sole subject of the question, a second body, having an interest the same as that of the people—the identity or coincidence between the two interests being provided for, in the case of this second body, upon the same principles as in the case of the first.

First comes loss of time: the delay between the passing of a project by one house, and the definitive passing of it by both. In a constitution which has two houses, evil in this shape is susceptible of actual measurement: the journals of the two houses will show it.

Waste of the official time of various functionaries engaged in the debate.

Expense, to wit, of remuneration, for the members of the second house. This, in so far as it has place, belongs to the list of sensible evils, more plainly sensible than the above. This, however, is no place to enlarge upon it; for it is not essential to the two-house system: if attached to it, it is attached only by accident. Suppose the second house to wave acceptance of all remuneration in a direct shape, and not to seek any in an indirect shape, this evil is extinguished.

Prevalence given to the will of the minority, over that of the majority, to wit, in both houses taken together. In this case, the particular evil effects are not matter of certainty: they are but presumable, however well grounded the presumption.

Unless some special probable cause of error be assigned, applying to the majority, and not applying at all, or not in equal force, to the minority,—the probability of right judgment will in every instance be in the exact ratio of the number of the majority to that of the minority. On this supposition it is that in every instance in which the act of the whole is made to consist of the act of the majority, the act of the majority is acted upon as if it were the act of the whole.

Say, for example, number of members in the one house 300; in the other 40: 21 in the smaller house suffice to overrule the will of 19 in that same house, added to the 300 in the other house.

In every case, if there be any reason for giving the preference to the judgment and will of the few to that of the many, it lies upon those who are for thus departing from the general rule to assign special and preponderant reason for such departure. Against it, the strength of presumption is considerable. Of the members of the first house, the choice will of course be made upon such principles as are regarded as calculated to send in the aptest members: aptest in the aggregate of all the parts of appropriate aptitude: they are regarded as those in whom, in consideration of that plan of location, more confidence may with propriety be placed, than upon members located upon any other plan. Add now a second house: either the location is performed upon the same plan, or upon a different one. If upon the same plan, then comes the incongruity of giving to the minority the prevalence over the majority, and without any reason to show for it. If upon a different plan, then by the supposition it is either worse, or at best no more than equal: but if no more than equal, the whole trouble attendant upon it is thrown away.

Another evil is the prevalence of a particular and sinister interest on the part of the second house, whatever it be. Here, too, the sensible evils are but matter of presumption, as in the former case. But whether the presumption be not here also a strong one will be seen.

Be the two houses what they may, in the course of practice, one or other of them will acquire and preserve the lead. To that leading house will application in general be made: to that house will every person who has a project to bring forward look in preference: comparatively speaking, the other house will remain in a state of nullity: to the house of greater activity will the merit of all measures looked upon as beneficial be ascribed. In proportion as the scheme of election is favourable to the universal interest, the measures proposed and approved by the larger efficient house will be beneficial. If there are any that are otherwise, on this supposition the smaller house (the scheme of election being the same) is altogether useless. But be the acts of the larger house ever so beneficial to the community, the majority of the smaller house will not naturally be content to remain in a state of disregard. To acquire and maintain a certain degree of respect, they will take the only course which, according to the supposition, is within their reach: they will set themselves to oppose, and clog, and delay on every occasion those good measures, in the glory of which they cannot share. Reasonable arguments not being furnished by the nature of the case, they would betake themselves to unreasonable ones: against each measure, as it came into the house, they would play off the whole artillery of fallacies. Hence arise the evils following: In the case of every good law thus opposed, delay, vexation, and on the part of individuals interested, more or less expense substituted for that time to the expected benefit: in proportion to the number of instances in which the bad arguments thus prevail, the good that would have been produced by the good law thus rejected, excluded altogether.

The next evil is the complication: Of the art and science of legislation, the matter, even supposing the simplicity of it is maximized, would still be more complicated than could be wished—complicated enough to be productive of evil in no inconsiderable abundance.

Even supposing sinister interest out of the question, the more complicated the matter, the greater the number of those who are unable to see clearly into it; and even to those who do see into it with the utmost possible degree of clearness, the greater the mass of time and labour expended on it.

But the more complicated it is, the more easy will it be for those who apply themselves to seek a sinister profit to themselves at the expense of the rest of the community, to succeed in such their endeavour, to wit, by reason of the inability of those whose interests are thus sacrificed—the inability of seeing into and opposing those same mischievous designs.

There will also be an increased facility afforded to corruption.

The susceptibility as to corruption has been already stated as inherent in the constitution of a representative democracy, as well as in that of every other form of government. In every state there must be an administrative authority; and in every state, the members of the legislative authority will be able and inclined to exchange favours with those of the administrative, and to join with them in a system of depredation and oppression at the expense of the people. True, the aggregate value of these favours is here minimized; but minimization is not extinction. The aggregate value of these favours being given, and also the condition in life of the persons to be operated upon by them, their corruptive power will be inversely as the number of those persons: and in the ratio of the population of the two houses, in the smaller house, the number will be less than in the larger.

Of itself, the second house cannot establish anything; but there is not anything which it cannot keep excluded. The efficient causes of corruption being continually in action, and the effect of them continually on the increase,—sooner or later, unless obviated, they cannot fail to destroy the constitution, and substitute to it a corrupt despotism. But whatsoever be the remedies by which the evil is capable of being averted, that which the second house cannot but have in its power, is to prevent the application of them.

If it be established that there are to be two chambers, out of this single circumstance spring a swarm of questions, pregnant, all of them, with doubts and difficulties. With respect to the whole field of legislation taken together, shall each have the initiative, or shall one of them alone, and which, have the initiative, and the other have the negative?

Or, with relation to certain parts of that field, shall the initiative be possessed exclusively by one, and which of them? Here, then, comes the necessity of lines of demarcation, and thence, not only certain complication, but probably continual contest and dissension.

In the French constitution of 1815, the sole initiative is in the monarch. Of course he will never originate any measure the effect or tendency of which will be to diminish his power, however detrimental it may be to the happiness of the nation: on the contrary, his constant endeavour will be to give increase to his share in the various instruments of felicity.

Lest the additional chamber should be regarded as useless, some special reason must be found for the institution of it. Accordingly, for this purpose, a division of the branches of appropriate aptitude is brought to view, and assumed to be applicable. Both chambers being assumed to be provided in sufficient amount with appropriate moral aptitude, the advantage in respect of active aptitude, is the supposed attribute of the one; in respect of intellectual aptitude, of the other: in which latter case, to render it the more imposing, the varnish of antiquity will be spread over it, and it will be called wisdom. Meantime, for rendering wisdom, whatever is meant by it, more abundant in one chamber than in another, the contrivance is to require that, in that which is to be the wisest, the members shall not, any of them, be of less than a certain age:

Only in so far as moral aptitude has place, is intellectual contributory, or otherwise than detrimental to the aggregate of appropriate aptitude: in so far as his object is particular and sinister interest, at the expense of universal interest, the more knowledge and judgment a man has, the more mischievous will he be. But, in so far as there is any difference, youth has much better pretensions to the being regarded as the seat of appropriate moral aptitude—of virtue, to speak in rhetorical language—than a more advanced age has. In a ratio which is the inverse of the degree of altitude in the scale of age, the mind is susceptible of that degree of excitation, (in French, exaltation,) of which self-sacrifice, sacrifice of immediate self-regarding to social interest, is the result.

In so far as regards intellectual aptitude, needless, with reference to this its professed purpose, is, in the present case, this supposed security. Take any age, for the age short of which, deficiency in the article of wisdom is to be regarded as preponderantly probable: say, for example, twenty-one years of age. By no such deficiency can any sensible evil be produced, otherwise than in the case in which the individuals labouring under it compose a majority. But that in any number approaching to a majority, these supposed unripe minds should have place in any body, constituted as that in question is here proposed to be, is altogether improbable. Were it even life at large that were in question, the longer a man’s life has been, the more numerous will have been the opportunities which his appropriate aptitude, whatever it be, has had of making itself generally manifest. But if this is true, as applied to life in general, more particularly true will it be, as applied to political life.

In the United States of America, the legislature is divided into two houses, viz. the house of representatives and the senate. To this clog upon the proceedings of the representatives of the people, another objection may be seen in the mode of election, or, in other words, in the source of location. Had this second house been elected by the same electors as the first, the delay and expense would have constituted the most material, if not the only material, evils. But the electors or locators are not the members of the constitutive body, but a comparatively very small body—not more than one thirty-five-thousandth part of the members. The senators are located by the members of the local legislatures: so that instead of location by one stage of suffrages, here is location by two stages of suffrages. The members of the senate are, moreover, fixed in their situations for no less than six years: and in all that time, neither by the locators of the first stage, nor by the locators of the second stage, nor, in a word, by any authority whatsoever can they be dislocated. Thus, in no hands is there any efficient control over their conduct. In addition to all this, to make the complication more complete, the senate has a share in the supreme executive authority.

Here, then, is a sort of aristocracy organized: and in virtue of the double-stage principle, an aristocracy over which the members of the constitutive have no direct influence: it may, indeed, be said scarcely any influence at all.

The good effects ascribed or ascribable to the two-house system, may be resolved into this, namely, its acting as a remedy against precipitation.

In this case, as in the case of the articles on the evil side, the alleged good is mere matter of presumption; of actually existing good, not a particle does the observation adduce.

But the ground of this persuasion, what is it—where is it to be found? In the principal house the members are by the former supposition so apt, that none more apt are to be found anywhere: along with this aptitude is the precipitation in question, whatsoever it be. In a state of dependence on the good opinion of their constituents, they are all of them: on every occasion they stand exposed to the censure of the public-opinion tribunal. The electors would on every occasion, in numbers as great as they themselves chose to make them, apply their veto or their drag in a direction conformable to the universal interest; the members of the other, the smaller house, would be on every occasion acting under the temptation to apply it, in furtherance of their particular interest. For avoidance of evil in this and all other shapes, to afford facility and thereby encouragement to the interference of the people at large, would have been the direct and most promising course: the other, of a veto and a drag in the hands of a smaller assembly, has no presumption to recommend it.*

Under this code, therefore, the supreme legislative authority is undivided. It is lodged, the whole of it, in one body, composed of representatives located by the supreme constitutive.

Section II.

Legislative Authority—why not in the Supreme Constitutive?

Why place the supreme legislative authority, not in the hands in which the supreme constitutive is placed, but in those of agents chosen by the supreme constitutive?

The reasons for this arrangement are such as must present themselves to every eye: they are not less obvious than conclusive—only for the sake of symmetry, if at all, can they be worth mentioning.

For themselves, the members of the constitutive authority, the great majority, cannot, in point of physical possibility, find time for the performance of this part of their business. They are those on whose labours, on whose disposal of their time in other ways, the national stock of the matter of subsistence and abundance depends: this necessary matter on which the members of the community depend for their existence.

By agents, therefore, must they perform this part of their respective businesses, or leave it unperformed: which is as much as to say, leave political society unformed.

To bestow, according to each one’s leisure, an occasional glance on the conduct of such their agents, in the execution of their trust; this is what they can do, and this, as experience shows, is sufficient.

If to the performance of business for which by the nature of their situation the greater portion of the members of the community were excluded, the whole were in form, and by the terms of the law to be invited, the system would by this circumstance be rendered deceptious: power in profession to the greatest number, it would be given in effect to the thus surreptitiously favoured few.

Section III.

Election—why immediate?

Why render the mode of location immediate, not unimmediate?

Because from unimmediateness no benefits can be shown to result, while the evils increase with the number of the stages or degrees of election, interposed between the members of the supreme constitutive and the functionaries here in question, in this composite mode of location. These evils are:

1. Want of responsibility as towards their constituents: of responsibility by punibility, and of responsibility by dislocability. These functionaries once located, no control over them do their constituents preserve; no means of preventing them from becoming corrupt and occupied upon the sinister sacrifice—in the commission of depredation and oppression.

2. The intermediate locators (the immediate locators of the functionaries in question) being of course less numerous than the members of the correspondent electoral body, stand proportionally exposed to the influence of the mass of corruptive matter in the hands of the executive: as likewise to the influence of corruptive matter in whatsoever other hands lodged.

The smaller the number of persons exposed to corruption, (the quality of the persons being set aside,) the greater the corruptive force with which they are acted upon by a given quantity of the matter of corruptive influence.

The greater the number of intermediate ranks of electors, the smaller the number of electors in each rank, and thence the greater the corruptive force with which they are acted upon by the matter of corruptive influence.

Under the Spanish constitution the number of stages of election is three or four: the number of ranks of electors interposed between the immediate members of the constitutive body, and the members of the legislative, in the location of whom they bear a part, is one or two. A consideration of a local and temporary nature was the cause of the complication resorted to and produced in this case. To such a degree were the most numerous orders under the sinister influence of the clergy, that had they been the immediate locators of the members of the legislature, these members would in large proportion have been persons recommended by the clergy, and thence, of course, implacable enemies to reform in every shape: reform in the particular shape contemplated, whatever it was, included.

Section IV.

Duties, peculiar and not peculiar.

Of cases, in which for want of due discrimination between the duties peculiar to itself, and those not peculiar to itself, the supreme legislature stands exposed to the danger of wasteful application of its time, examples are the following:—

Inquiry and decision as to a case in which property belonging to an individual is required to be transferred to government, for some supposed preponderantly beneficial national purpose: and thence as to the quality and quantity of the compensation due. In this case the appropriate authority would be, not the supreme legislative, but the judicial.

Taxation, for the expense of works, the benefit of which is confined within the limits of particular portions of territory: say of peculiar districts. In this case a more apt authority would be, that of the sub-legislature of the district.

So, if for any local purpose, common to some district.

So, a transfer for a merely private purpose: the arrangement being clearly conducive to the mutual benefit of all parties; and the transfer capable of being made without detriment to the general sense of security in respect of property. Here the appropriate authority would be the judicial authority of the district.

Of waste committed in the above shapes, exemplification, to a vast extent, may, at all times, be seen in English practice: and by the magnitude and uncertainty of the number of members present, added to the irresponsibility of their situation, (this judicatory being, as to all points of appropriate aptitude, rendered notoriously in the highest degree unapt, and in particular in respect of moral aptitude—in one word, by corruption,) a constant waste of legislative time is frequently accompanied by the evil of misjudication.

English practice affords another example, which is somewhat remarkable, namely, the grant or refusal by parliament, of the dissolution of the contract as between husband and wife. Here the waste of legislative strength, if not perhaps so extensive, is much more palpable. The principal efficient cause, is the conjunction of the particular interest of the lawyer tribe with that of the aristocratical tribe: the lawyer tribe, in respect of the enormous professional profit, of which a suit in this pre-eminently ill-constituted judicatory, has been made the source; the aristocratical tribe, in respect of the distinction it confers upon them—the capacity of defraying the inordinate expense, being of the number of the exclusive privileges, confined to the hands of pre-eminent opulence: and the superior importance thus ascribed to their family connexions. While a single tribunal suffices for seduction, the time of the legislature at the heels of two* judicial tribunals, is occupied by a divorce. Thus in England and Ireland. In Scotland, an ordinary judicatory suffices.

But in England, the government having for one of the maxims of its policy, the minimization of the time, employed by this compound body, in the performance of its appropriate duties, and accordingly to maximize the waste of it, waste upon this small scale, passes unobserved.

Section V.

Dislocability and Punibility.

The legislature being the seat of supreme operative power, for stemming the torrent of corruption, the first quarter to which the remedial arrangement should be applied, must obviously be the legislature: and with or without the additional expedient of preventing the re-election of members, the assigning to their power, no more than a short duration, may be apt to appear, at first sight at least, sufficient. This however, it will not be: for short as in that department, the term of service may be, such it cannot conveniently be in the executive department. Even if the objection on that account were got over, and the length of the service in that department as in the other minimized, still at the head of that department some person or persons there must be: and on both sides, the parties having the same interests, and the same means of pursuing them, and pursuing them with effect, the same results would follow. In their individual capacity the members of the legislature would have the same desire of providing for their families and friends: they would have the same means of gratifying that desire. The chief or chiefs of the executive being necessarily subject to the power of the legislative, exposed not only to the having the duration of their power, how short soever, made still shorter, but to be punished, and in the meantime vexed, in an infinite variety of ways, without the form of punishment, would never cease to feel themselves under the obligation of keeping on fair terms with the members of the legislative: in other words, of admitting them to a share in the sweets of corruption by locating them or their friends in lucrative and other desirable offices.

Unless by a revolution and consequent change in the constitution, this state of things could never be made to cease. In their corporate capacity the members of the legislature would administer the wages of corruption in the gross, to the executive chief or chiefs, in the shape of desirable offices and other shapes, and the executive chief or chiefs would administer them in detail to the members of the legislature, in their several individual capacities: in their corporate capacity they would give,—in their individual capacity, they would receive.

The members of the supreme legislative, must therefore be rendered punishable,—as, for the production of the effect intended, namely subordination, dislocability alone, will not be sufficient.

It fails in two cases:—1. If in consequence of the taste and situation in other respects of the individual in question, it is a matter of indifference to him whether he continues in such his office, or passes out of it. 2. If, in consequence of possessing what to him appears an adequate assurance of obtaining, by some breach of his official duty, a benefit, the value of which is, in his eyes, preponderant over the value of the office, taste and situation considered as above, such is his relative moral inaptitude, and such the strength of the temptation to which his probity stands exposed, that he determines to break the duty accordingly, and possess himself of the benefit.

Notwithstanding the height of the situation in the scale of power, neither does difficulty in any shape, nor danger in any shape, attach upon the application of either of the two bridles in question: namely dislocation and punishment. Divested of his brief authority,—divested by that means, and at the same time, of all sinister influence,—a member of the supreme legislative body, that is to say, he who had once been a member—would be just as easily tried, convicted, and punished as any the meanest citizen.

Yes, if by the constitutive, the functionary were undislocable and unpunishable: in either case the difficulty of the operation would be extreme, and the danger of the attempt, proportionable. This is as much as to say, in a monarchy, in every sort of monarchy.

A conception not less erroneous, than at first sight it is natural, would be, the supposing, that because by the care of the law, punishment is provided to be, in case of necessity, applied to functionaries of the class in question,—either the actual application of it, or the endeavour to make application of it, would be in any degree probable. By the very provision by which the eventual possibility of it is established, the probability of it is dispelled.

By the Anglo-American constitution, all functionaries—the highest and most powerful not excepted—are made punishable. For these forty years, during which these states have been in a state of independence, where has been the high legislative or executive functionary punished?—where has been the high functionary whom any man wished to see punished? Why has there never been that high functionary, whom any man wished to see punished? Because there has never been one who has offended. And no high functionary has offended, because there has never been one, who ever saw either any profit to be made by offending, or prospect of escaping punishment if he were to offend. In that country delinquency and punishment are twin sisters: for there, not only is infamy the punishment, but efficient and abundantly sufficient punishment.

Section VI.

Omnicompetence.

Why render the legislature omnicompetent?

Because it will the better enable it to give effect to the will of the supreme constitutive, and advancement to the interest and security of the members of the state.

Because the practice upon which it puts an exclusion is, in a constitution such as the present, pregnant with evil in all imaginable shapes.—Any limitation is in contradiction to the greatest happiness principle. An arrangement suppose, is proposed, which, in the unanimous opinion of the whole legislative, with the addition of the unanimous opinion of the whole constitutive, would be immediately contributory to the greatest happiness of the greatest number. For a certain length of time it cannot be carried into effect. Why? because it is repugnant to that which was the will of the constitutive at the moment at which this restrictive arrangement was established.

On one supposition alone can it be supported, namely, that on the part of the constitutive and legislative, at the time at which it received its establishment, appropriate aptitude had place in a greater degree than it can have place at any succeeding point of time: in particular, than at any point of time at which a proposition would be brought forward for some change of the number of those on which the restrictive arrangement in question would put a negative. The untenableness of this supposition has been already exposed.

To be employed in giving support and stability to evil in every shape is the characteristic property of an arrangement of this sort: to put an exclusion upon a good law—upon a law by which, if established, evil in some shape or other would be excluded: upon a law so plainly good, that this same restrictive arrangement is the only bar that, with any colour of reason, can be opposed to the enactment of it;—for, suppose the proposed law a bad one, the worse it is, the stronger will be the objection opposed by its badness, and for this objection there cannot be any need.

In the institution of this veto upon remedy and improvement, moral inaptitude—the fruit of sinister interest, and intellectual inaptitude, in the shape of self-sufficiency, wilful blindness, and obstinacy, act with conjunct influence.

Had their predecessors acted with like endeavour, and with correspondent effect,—these would-be tyrants over futurity, whoever they are—what place would have been left for the power, of which they are making such exercise?

Power thus unlimited, is it not too dangerous to be trusted to any body of men in the state?

No: it would be, if, of the power thus confided, the existence were not, in the instance of every individual, made dependent on the will of the greater number, and, in case of an abuse in the exercise of it, the functionaries in question rendered eventually punishable, as above.

With power thus unlimited, might not the legislative body exercise their power upon the members of the constitutive body, individually taken, in such sort as to prevent the exercise of the dislocative power in question over the members of the legislative body?

No: for in the case here supposed, the members of the constitutive body, on whose co-operation the giving execution and effect to the supposed ordinances of the legislative body depend, would forbear to give it: if some used their endeavours on that side, a greater number would use theirs on the opposite side. Upon their compliance or non-compliance, all power, as has been seen, necessarily depends. On any occasion towards producing, on their part, non-compliance, all that can be done by a constitutional code, is to give them the invitation. If by such invitation, power is not limited, by nothing else can it be limited.

In every case of every such restriction, the tendency is to produce evil to an unlimited amount.

In every case of every such restriction, the tendency is to produce more evil than good.

In no case is it in the nature of it to produce any positive good: in relation to the subject-matter in question, what it does is, under the notion of excluding evil, to exclude evil and good at the same time.

In no case is it likely to exclude any evil, that would not have been excluded without it.

Against all evil effects from want of appropriate aptitude on the part of the legislature of the future time in question, (which is the only reason that can be adduced in favour of the restriction,) the community is secured by the power herein given to the constitutive body, as above.

So obvious and incontestable are the absurdity and mischievousness of such a restriction, that a palliative has been employed for lessening the mischievous effects of it. This consists in setting limits to the time during which no change shall be attempted. In this case, the absurdity is not quite so flagrant, but it is not the less unquestionable: by being varied in shape, neither is the absurdity removed, nor the mischief materially lessened.

The case in which this dilatory system has been employed, is that in which a new constitution has been instituted. In this case, an acknowledgment has been made, that the makers of the constitution are not infallible: and thus the system has been in a considerable degree cleared of its absurdity, or at any rate, its absurdity of its flagrance. But as to mischievousness, whatsoever may have been the object, the tendency is still the same. A door is left for the admission of the remedy. But at what time? at a time at which it is either needless or hopeless.

The time at which application is made of the remedy, is the very time at which the constitution, of which it makes a part, receives its commencement: a time at which experience is not yet born. If there be a time at which the probable need of alteration is at its highest pitch, this is that time. If, notwithstanding whatsoever imperfection may have place in it, the constitution is at that time capable of maintaining its ground, and answering, not to say fulfilling, the purposes of its institution, much more assuredly will it at any succeeding point of time: and as to remedies, howsoever the direct and most essential ones are thus inhibited from being applied, yet to all such as are not included in the inhibition, the door, by the supposition, remains open. Not that it follows, that even any such palliative will be applied: for the case may be, that there are not any such as will in any degree apply to the purpose.

Be this as it may, if no subversive effect takes place at this earliest period, no reason is there for supposing that any such mischief will take place at any posterior period: insomuch, that if, with this limitation to it, the restriction is justifiable, equally justifiable would it be were the limitation omitted.

So much as to the needlessness of the restriction: restriction in respect of extent of competence, and limitation in point of time applied to that restriction,—the two arrangements taken together.

Now, as to the article of hopelessness. Whatsoever, under the newly instituted constitution, may be the influence and effective power of the newly constituted rulers, the more effectually it is regarded as answering its purposes,—or, to come more to the point, the better the people are satisfied with it,—the firmer and firmer will be their hold on the affections, fear and love taken together, of that same people. Suppose, now, that in company with the arrangements which have really had for their object the felicity of all, others have place, which have for their object, not the felicity of all, but the particular felicity of those same rulers, pursued at the expense of that of the people: what is the consequence? The longer the time is during which they have been in possession of the sinister advantage, the more and more confirmed the habit of enjoyment is; the stronger the hold, as it were, they have taken of it, the more strenuously opposed will they be to part with it: and by means of the circumstances just mentioned, during all this time, and in correspondent proportion, their assurance of being suffered to keep possession of it has been receiving increase.

By this unincompetence, by this negation of all limits, this also is to be understood, namely, that let the legislature do what it will, nothing that it does is to be regarded as null and void: in other words, it belongs not to any judge so to pronounce concerning it: for, to give such powers to any judge would be to give to the judge—to the locatee of the minister of justice, who himself is but a locatee of this same legislature—a power superior to that of the legislature itself.

But the case of an abuse of power on the part of the legislature is not, therefore, as has been seen, left without remedy. One remedy is—the shortness of the duration allowed to the power of its several members in the aggregate; a year, or two years at the utmost.

Another remedy is afforded by the speedier dislocation of any or all of those who have been seen concurring in the obnoxious measure: dislocation, namely by those by whom he or they had been located. Operose is this remedy, it is true; but were it ever so inadequate it should not be rejected; for it is the only one the nature of the case admits of: and if the facility of it were to a certain degree great, the remedy might even be worse than the disease. Little does it seem in danger of being inoperative: for, of the very first commencement of its preparation, a natural result would be—no inconsiderable uneasiness on the part of the members who were the object of it. Supposing no instance of its being applied ever to have place, no proof of its inutility would be the result.

If, to the authority of the legislature, limits are regarded as being applied, it will be in one or other of the following ways:—

1. By the authority of the supreme constitutive. If, on any occasion, in the opinion of the supreme constitutive, the legislative has by any ordinance trenched upon the authority given by this same constitution, to the supreme constitutive,—a natural consequence will be, that on the part of the members of the supreme constitutive in their separate capacity no regard will be paid to it: in which case, as power on the one part is constituted by, and is in exact proportion to, obedience on the other part, thus it is that the supposed anti-constitutional ordinance of the legislature will remain without effect. On the disposition on the part of the members of the supreme constitutive to pay obedience to the ordinances of the supreme legislative is the legislature dependent at all times for the power which it exercises: by the supposition on the individual occasion in question, this same disposition is diminished or altogether vanishes; and this being supposed, so on that same occasion will the power of the legislature.

By the judiciary, that is to say by any judge in whose judicatory a member of the supreme constitutive is prosecuted for the alleged offence committed by the supposed act of disobedience—by the judiciary it may be said the punishment thus called for may be inflicted. True, so it may be; but that it should be, is not likely, were it only for this—namely, that the judge is dislocable by a majority of the electors of the district.

True it is, that on this occasion, as on any other, it may happen, and is likely to happen, to the suffrages of the supreme constitutive authority, to be divided. But this is an inconvenience the existence of which is in the very nature of the case.

To produce the effect here endeavoured to be produced by the promptly applied dislocative power given to the supreme constitutive over the members of the legislature, it is not necessary that any application should in fact be made of it. In any case in which it appears likely that, by the proposed ordinance in question, the members of the supreme constitutive will, in any considerable number, be likely to regard it as a violation of their rights—rights naturally so valuable in their eyes, the great probability seems to be that a majority of the legislature will not hazard the enterprise: that they will not, even though no considerable apprehension of any such strong measure as that of dislocating them were entertained by them; for from a degree of unpopularity much less than would suffice for their dislocation, no inconsiderable personal inconvenience would naturally be produced.

2. By the authority of the supreme legislative itself, composed of the same members. This case is brought to view for no other reason than because, not only the possibility but the actuality of a limitation, produced by such a law, seems commonly to be assumed. But by a little reflection the impossibility of it will be made apparent. In the case of this body, as in that of every other body, and every individual, its will is as much its will at one time as at another. To suppose that its will, on the first of two days, can render of no effect its will on the second of those same two days, is a self-contradictory supposition: it supposes that on such second day its will will be, and at the same time will not be, to the effect in question.

3. By the authority of the supreme legislature itself, at a time when the members of it are in a greater or less proportion, or are all of them altogether different. For simplicity of conception, suppose them in their whole number without exception different. By the supposition, it is their desire to render of no effect the will declared by their predecessors: by what consideration should they be prevented from carrying such their desire into effect? At the anterior time in question, of the will of the then existing members, was the authority in question composed: at the posterior time in question, of the will of the then existing members it is that that same authority is composed.

Altogether the work of imagination, must be any bar by which, in preference to the will of the anterior set of functionaries, the will of the posterior set of functionaries is regarded as prevented from taking effect. Not by any well-considered regard for the greatest happiness of the greatest number can any such scruple have been produced: nor by any well grounded supposition of superior intellectual aptitude on the part of the earlier set of functionaries. Appropriate intellectual aptitude is either appropriate knowledge or appropriate judgment. To the knowledge possessed by the anterior set, the posterior adds the whole stock of knowledge which the interval of time has brought to view: and all appropriate judgment being the fruit of appropriate knowledge, proportioned to the addition to knowledge, will of course be the addition to judgment, unless some reason can be shown why it should be otherwise. Thus then, with reference to the time of action in both cases, will the posterior set, as compared with the anterior, possess an unquestionable advantage: each of them possessing a knowledge of, and in relation to, the facts of its own time. But the time here in question is the time of the posterior set of functionaries: the time when, in pursuance of the knowledge and judgment possessed by them, an ordinance to a certain effect, in relation to a certain subject, is proposed to be framed and issued. But of none of the intervening facts—in a word, of none of the facts immediately belonging to the case, could the functionaries of the anterior time have had any knowledge, nor, therefore, be capable of forming any appropriately grounded judgment whatsoever. Can anything, therefore, be more absurd than the supposition which, with reference to the proposed ordinance in question, attributes to those same anterior functionaries, in comparison with these their successors, any superiority in the shape of appropriate intellectual aptitude?

In so far as the proposition has knowledge and judgment for its subjects, in the instance of any other branch of art and science, it is too palpably absurd to find a defender anywhere; if in the instance of the branch of art and science here in question there is a just cause of exception, it lies on him by whom the existence of such exception is asserted to prove it.

4. By the authority of the functionaries belonging to the several other departments, namely, the executive, or say the administrative, and the judiciary. Manifestly self-contradictory and absurd would be the supposition, that by either of those authorities, limits ought to be, or could be set, to the power of this. Of their institution, the declared and sole declared end and purpose is the giving execution and effect to the will formed and declared by the members of the legislative. But is it possible that by them or either of them it should be better known what is the will of the legislative than by the legislative itself?

These things considered, all endeavour to restrain the power of the supreme legislative by words of inhibition or restriction in a constitutional code, will be seen to be incongruous, and tending to lessen instead of increasing the regard paid to it by the authorities and people of succeeding times.

That the restrictive system is capable of being of use is undeniable, for that it has been of use is equally so.

Under a form of government bad in principle, it is capable of being of use: and under every such government, in so far as it has been applied, it has probably been more or less of use. If in any government it has been of use, a more conclusive proof of the badness of the government cannot be given than that such a system has been of use under it.

To this head belong the sorts of instruments called in English and thence in French, Charters: and also in English, Bills of Rights.

This sort of restrictive arrangement is of use, because the government is in principle a despotism: the end in view is not the only true end, but a false one: not the greatest happiness of the greatest number, but the greatest happiness of the ruling one, with or without that of a comparatively few, in the character either of his instruments or his partners.

On an occasion of this sort selection is made of some of the grossest and most palpable of the forms in which depredation and oppression are wont to show themselves; and by one mean or other, the depredator and oppressor-general has been engaged to promise, that from depredation and oppression in these particular forms, he will be graciously pleased to abstain in future. Not that to him any right to the exercise of depredation and oppression in these, any more than any other forms, is wanting; but that in these particular instances, such is his mercy and condescension, he will, in so far as he is pleased to continue in the same mood, be pleased to abstain from the exercise of them.

In every instance the probability seems to be, that the engagement, such as it is, has not been altogether without its use. Is it then, that in any instance, even in those forms in particular, the career of despotism has ever altogether ceased? No: but in every instance the probability is, that the exercise has not been either so frequent or so flagrant as, but for this engagement, it would have been.

At any rate, an intimately-connected yet distinguishable use has been the drawing the attention of the public-opinion tribunal to the several points in question; and by means of the exercise thus given to it, thus giving strength to it.

In proportion as it gives strength to the public-opinion tribunal—that is to the members of it, the great body of the people—it gives weakness to the government: and where such is the principle and character of the government, everything that adds to its weakness is of use, and the price given for any such addition cannot easily be too great. For in exact proportion as the rulers have grown weaker and weaker, the people have been growing stronger and stronger, insomuch that, where the ruler has been carrying on the business of government for his own benefit, the people are ready to step into it, and carry it on for their own benefit.

Objection: If as towards the executive and the judicial, omnicompetence on the part of the legislative has place, all these authorities will be united in the hands of the legislative, and in that case, according to Montesquieu’s definition, the government will be a despotism. The division of power, meaning between these three several authorities, is generally acknowledged as the best security, and as an indispensable security, against despotism.

Answer: This definition being destitute of all reference to the greatest happiness of the greatest number, the authority of Montesquieu has no title to regard. He threw into the field of legislation a few unconnected lights, but he had no clear conception of any one spot in it. His fundamental division of the principle of a government,—fear, honour, and virtue, has been for these sixty years shown to be mere nonsense. But for the reference made to this aphorism of his, in the debates relative to the United States Constitution, and incidentally in discussions relative to the English government, his book would not on this occasion, any more than on any other, at this time of day, have any claim to notice. Vain would be the pursuit to keep hunting for a distinct meaning in a work in which no such thing is to be found. Of happiness, he says nothing: instead of security for the people against their rulers, he talks of liberty: and assumes without directly saying so, that to establish the most perfect liberty is the proper object of all government: whereas government cannot operate but at the expense of liberty, and then and there only is liberty perfect, where no government has place.

The work which contains by far the greatest quantity of sound reasoning and useful instruction on the subject of government, is an American work called The Federalist. But even there, the passages in which there is a want of clearness in the ideas attached to the words and phrases employed, are but too frequent, and the work being in the form of letters, the reasoning is desultory and unmethodical.

At the end of fifty pages and not before, comes a phrase, the business of which is to lay down a definition of the end of government. “Justice is the end of government.” Then immediately after. “It is the end of civil society.” But justice, what is it that we are to understand by justice: and why not happiness but justice? What happiness is, every man knows, because, what pleasure is, every man knows, and what pain is, every man knows. But what justice is,—this is what on every occasion is the subject-matter of dispute. Be the meaning of the word justice what it will, what regard is it entitled to otherwise than as a means of happiness. By justice, did the writer mean equality? Instead of justice, he should then have said equality. But of the four subordinate ends of government, equality is but one, and of that, the importance is neither so great nor so clearly visible as the three others, or, at any rate, as two of the three, namely, subsistence and security.

For the happiness of the people, every security that can be given is reducible to this one—the supremacy, or say the sovereignty, of the people: the sovereignty of the people, not nominal merely, but effective, and brought into action, or rather capable of being brought into action, as frequently as the exigency of the case requires, and the nature of the case renders possible.

Altogether inadequate,—and, with reference to the only justifiable and proper end of government, unconducive,—is the sort of arrangement expressed by the phrases division of power and balance of power.

The phrase—balance of power, supposes division of power, and expresses a modification of it: it means that the shares which are the result of the division should be equal, or as near to equality as possible. To say of the power in question, that there should be a division of it, is simply to say of it, that it should be divided into shares. To speak of the balance of power, as a thing that ought to be maintained in a state, is to say that these shares should be all of them equal to one another: for in a pair of scales, with equal arms, either the weights in the two scales are equal, or, what is called a balance between them has no place: one of them falls, the other rises.

By those by whom the phrase—division of power, is employed, of the subject-matter of the proposed division, no precise determination is given. Is it the aggregate mass of power exercised by all the functionaries of the state, of all grades put together? or is it no more than the whole mass of the power exercised by those who occupy the highest grade in the several departments?

But in no sense, unless and in so far as depredation and oppression in other shapes are excluded by it, can division of power be of any use. Because, into whatsoever portions, separation of the power, and corresponding interest, may have been made, corruption may unite them, and cause them to co-operate in the work of depredation and oppression: and not only may unite them, but to a certainty will, unless for the prevention of these evils, arrangements of a very different nature be made.

Thus it is in England: thus it is and ever will be in all mixed governments, into the mixture of which an alleged representation of the people is admitted. In fact, no such separation of power, as is pretended to have place, has place: nor if it had place, would it be of any use. By keeping the three powers separate and independent,—namely, the legislative, the executive and the judicial, the use of the executive and of the judicial would be taken away, namely, the giving execution and effect to the ordinances issued by the legislative. To government, anarchy would be substituted, if in case of disobedience on the part of those subordinate functionaries, the legislature had it not in its power to dislocate them, and substitute to them others, by whom the services they were designed and expected to render, would be performed.

But although the subordinates ought not in any case to take upon themselves the functions of the legislative, there are cases in which the legislative may and should take upon itself the functions as well of the executive as of the judicial: for there are cases in which, were it not to do so, its own authority would be without execution and effect—it would itself be without efficiency or use.

Of these cases there are two: 1. Where the will of the functionaries in the subordinate department opposes itself to the will of the functionaries in the superordinate department: 2. Where the exigency of the case, in respect of time or appositeness of appropriate information, will not admit of its operating by the intervention of the agency of these same subordinates.

To the executive it belongs, suppose, as by the here proposed constitution it does, to command in chief the military force of the state; and where he does not command it in person, he locates him who shall command it. To the executive chief, and not to the legislature: good in all ordinary cases. But suppose the executive chief, or such his deputy, possessed as he thinks of the affections of the military, and setting up for the sovereignty. The legislature must dislocate him, or either civil war, or, instead of representative democracy, despotic monarchy ensues.

So in the case of the judiciary. If in any district the judge wilfully forbears to give execution and effect to the declared will of the legislature, and to such wilful forbearance a certain degree of continuance is given, the power of the legislature in that same district is at an end: and thus, by the waywardness of a single functionary, the will of the whole people, as signified by their agents chosen by them for that purpose, may in so far be frustrated. To remedy this, what is there that will suffice? This, and nothing less—decree of the legislature dislocating the insubordinate judge; and in the event of his continuing in the exercise of his functions, notwithstanding, arrestation and confinement of his person.

That except in the two cases above pointed out, this sort of arrangement ought not to be employed, may without difficulty be admitted: and except in these cases, the employment of it is here accordingly disrecommended.

Without any such limitation it has by every government been, without any scruple, employed.

For the forming a sufficiently instructive ground for its proceedings, the legislature, be the subject-matter what it may, calls for information at the hands of every person whom it regards as competent to the furnishing it: and if the individual be refractory, declining to present himself, or declining to answer questions, it consigns him to confinement till his wayward pertinacity gives way to the sense of political duty, and due obedience takes its place. Here is one of those functions exercised, in the exercise of which the judicial authority is continually employing itself, and of which, for giving execution and effect to the law, it has such perfect need.

It is done, moreover, not only by the whole legislature, by a bill of attainder, but with much less of formality and discussion. It is done by every branch, how small soever, which, under the name of a committee, is detached from itself for this purpose.

Section VII.

Inaugural Declaration—why?

For what reasons employ this declaration?

The reasons will appear in the following uses:

Use 1. To appropriate moral aptitude, it contributes in the several ways following:

As a security for aptitude in that shape, it brings to bear upon the conduct of the functionary, throughout the field of his authority, the force of the popular or moral sanction, as applied by the public-opinion tribunal: it being among the characteristics of this unofficial judicatory, to act—and without injustice or mischief in any shape, upon evidence, of a sort upon which no proceeding could, without palpable injustice, be grounded in any official judicatory.

Many are the cases in which, but for the sort of check thus applied, misdeeds of the most mischievous nature would be practised in full security. Among them is corruption on the part of a public functionary, in those cases in which it would not be exposed to punishment—punishment such as that denounced by penal law. For instance, where by the corruptor, or some connexion of his, the service is rendered—not to the functionary himself, but to some connexion of his, in whose prosperity he has an interest more or less considerable.

Of a tie of this sort, the efficiency will be in proportion to the degree of particularity which can be given to the wording of it. If the wording of it be to a certain degree general and loose, so far from being conducive, it is in a high degree adverse to the end which it professes to have in view. The effect of it is to cause the unthinking multitude to regard as if bound by a most efficient tie, a functionary on whom neither the tie in question, nor any other tie of the sort, ever exercises any the smallest restraining influence. It has the effect of a certificate of public probity, where the quality itself is ever so completely wanting.

England may on this head afford a useful example to all other nations. What may be called the system of oaths, is one of the most extensively employed, and most efficient instruments, in which a government depending as that does, upon corruption and delusion for its existence, finds its support. Scarce an office of any importance, on his entrance into which, the functionary does not pronounce the words of an engagement, to which, in order that the influence of religion may be enlisted in the service of corruption, the term oath is employed. Of the use thus made of this instrument, delusion and corruption are the continually associated effects.*

2. A use of secondary importance, is the security it affords the functionary against the uneasiness producible by solicitation, on the part of this or that person, with whom it happens to him to stand connected, whether by the ties of self-regarding interest, or by the ties of sympathy. In this way, but for a safeguard of this kind, he may be annoyed by tormentors in any number, and even on two opposite sides at once. On the other hand, let the law give him this safeguard, under the semblance of coercion, it gives him real liberty: and thus it is, that in the breast of a public man, shelter may be afforded to probity, against the tyranny of private sinister influence.

This use of the declaration, or engagement, is of no light importance. Self is but one: connexions are infinite. The danger which the probity of a public man is exposed to, from the suggestions of his own immediate interest, is trifling in comparison with the attacks it has to sustain from the interest of all sorts which surround him. Amongst these, local and professional interests are particularly dangerous. Individual ones venture not beyond a whisper: the others, by their clamour counterfeit the public voice, and clothe themselves impudently in the garb of virtue. Strengthened by secret inclination, and entrenched behind the rampart of a solemn engagement, probity may bid defiance to all its adversaries.

3. While thus subservient to the main point, namely, appropriate moral aptitude, the instrument may be found not altogether useless, with reference to appropriate intellectual aptitude. It will serve in some sort as a guide over the field of government. In this character, that part of the code, in which an indication is given of the subjects which respectively belong to the field of duty, of the several ministers belonging to the administrative branch of the executive department, together with the engagements of the various functionaries, to perform their duty,—may serve as a supplement.

Of all the several offices which belong to the official establishment, the two in regard to which, it affords the most considerable promise of being of use, are the legislative and the judicial.

In the case of the people at large, in their quality of members of the supreme constitutive authority, no engagement of this sort seems to afford much promise of being of use. In the character of a curb, it would be altogether useless: having no sinister interest,—the universal interest being but the aggregate of their several particular interests, it would in their instance be needless: acting as they are supposed to do on a system of perfect liberty, with perfect secrecy for its security it would in their case, needless or needful, be inapplicable.

In the character of instruments of appropriate intellectual aptitude—instruments for the conveyance of appropriate knowledge, and for the guidance of appropriate judgment, the two declarations, allotted to the situation of legislator, and that of judge, will serve at the same time, for their constitutional supervisors and masters,—the members of the supreme constitutive.

Section VIII.

Sittings unintermitted.

Why at the hands of these public functionaries, exact an attendance thus unintermitted?

Because to the amount of irremediable mischief, which may at any time be the result of non-attendance, there are no assignable limits. Of the evil which actually has place in the several governments, there is no saying how large a proportion may have been produced by the want of it. In the situation in question, to an excess of business, or in short to any cause but the true one, may in the instance of each such functionary, have been at all times attributed, that which in truth had for its sole cause, his indolence or negligence.

The more completely the time of a man, thus placed in the very thickest of moral contagion, is occupied in the discharge of his duty, the less is the time during which he stands exposed to the solicitations of corruptive influence: to visits from persons of all classes, whose interest and consequently whose endeavour, will be to ply him with temptation, in all its shapes, for the purpose of engaging him to concur with them in the sacrifice of the public to their own particular interest.

Whatever be the occupation, good or evil, among its purposes is, the putting an exclusion upon all incompatible ones.

“John,” said a careful housewife to her servant, when she sent him into the cellar, “keep whistling all the while you are drawing the ale.” Drinking and whistling cannot go on at the same time.

Objection 1. No man of worth will submit to restrictions so irksome and so degrading.

Answer. To render the objection relevant, put aside all such vague phrases as men of worth, and employ instead the only relevant phrase—no man endowed with adequate appropriate aptitude, in all its several branches.

This done, the true answer is—no man endowed with adequate appropriate aptitude will decline submitting to these same restrictions, or regard them as being in any degree degrading, or, in comparison with other occupations, so much as irksome. A man’s doing so, would be conclusive proof of want of aptitude.

The occupation of the medical practitioner consists in the removing, or endeavouring to remove or exclude, evil,—in thus doing good upon an individual scale. The occupation of the legislative functionary consists in the excluding, or endeavouring to exclude, evil,—and thus, in doing good upon a national scale. The legislative functionary shall, it is proposed, have one day of repose and relaxation out of every seven. On no one day of the three hundred and sixty-five can the medical practitioner be assured of so much as a single hour of repose and relaxation. To the occupation of the medical practitioner, no power, in any shape, is attached. To the occupation of the legislative functionary, power, the highest in the scale of operative power, is attached.

For the occupation of the medical practitioner, never is there any want of candidates: still less for the occupation of the legislative functionary, would there be any want of candidates.

In the offices belonging to the various departments of the executive, in the case of no individual in the order of clerks would this same degree of assiduity in attendance be regarded as excessive. For no one of these situations is there ever any want of candidates. That which a man would not decline doing for a less sum without power, he would not decline doing for a larger sum, and with the highest power.

Objection 2. Any such degree of strictness is, in any such high situations, altogether without a precedent.

Answer. Nothing can be more natural than that it should be. Its being so may, at any rate, for the purpose of the argument, be admitted without difficulty.

In the case of the medical practitioner, the degree of closeness of attendance is determined on the part of the functionary, partly by the nature of the case, partly by the patient: in the case of the legislative functionary, it is determined by himself, in conjunction with others, in the instance of every one of whom the same sinister interest has place, with the same power of fulfilling its dictates. It is determined by a set of men who feel themselves completely at liberty to sacrifice the aggregate interest of all their fellow countrymen to any the smallest portion of personal and self-regarding interest, and who are in the constant habit of making this sacrifice.

In the case of the medical practitioner, if any evil results from the want of adequate promptitude, in such sort that the patient suffers, the functionary by whose fault it is produced, suffers along with him; for he cannot avoid doing so. In the case of the legislative functionary, whatsoever evil befalls the patient—perhaps the whole population of the country, the patient suffers alone: the person in whose misconduct the evil has its cause does not suffer along with him, for it has been in his power to exempt himself from all suffering, and so accordingly he has done.

What is the situation in which the efficiency of this bar to a seat in the legislature would be felt in its highest force? It is that situation which is composed of power, without obligation. It is that, for example, of a member of the English parliament. Take either house: of the majority, all ill-disposed; of the minority, some well-disposed. On the part of the well-disposed, in the scale of duties, first comes amusement in all its shapes, then serving the particular interests of self and connexions, lastly, ministering to the public interest. On many occasions, there have not been a sufficient number of members present in the House of Commons, namely, forty, when the fate of a proposed law was to be decided, which had for its object to provide a remedy to an immense mass of misery, under which the people were suffering.*

If, when a man says, “no man of worth would accept of the situation on such terms,” what he means is,—“neither I myself, nor any who have a place in my esteem, would,” and this man belongs to either of those bodies, he delivers an aphorism which assuredly has more or less truth in it. From the society in which he has been bred, all sense of positive obligation has stood excluded. Negative obligation, yes: of that, he has all along had the sense: by the fear of being annoyed in return, he has felt himself bound not to annoy others. But as to the doing anything he does not like, for individuals, or even for himself, it is a thing unusual to him, and, for the public at large, unprecedented.

But from an exclusion put upon such men of worth, would the public interest, in any shape, be a sufferer? No: in every shape it would be a gainer. By habitual opulence, men with scarcely one exception out of a thousand, are rendered irremediably unapt for legislative business: unapt in respect of every element of appropriate aptitude.

This objection, supposing it regarded as peremptory and conclusive in this instance, would be so in the instance of every measure, almost without exception, that had for its object the augmentation of the happiness of the greatest number.

Perfect is the accordance between this arrangement for constancy of attendance, and the anterior one for the shortness of continuance in office, so far as regards the members of the supreme legislative. The shorter the time of a man’s confinement, the less irksome to him will it be.

[* ]For a further examination of the question between single and double chambers, see “Bentham to his fellow-citizens of France on Houses of Peers and Senates.”—Vol. iv. p. 419.—Ed.

[* ]A common-law court, and an ecclesiastical court.—Ed.

[* ]See the tract called “Swear not at all,” in vol. v. p. 187; and see in the Rationale of Evidence, vol. vi. p. 309 et seq.—Ed.

[* ]On one occasion the House of Commons was obliged to adjourn on account of the members being absent, for the purpose of witnessing the performance of a celebrated female opera-dancer.—Ed.