Front Page Titles (by Subject) No. VIII. - The Works of Jeremy Bentham, vol. 9 (Constitutional Code)
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No. VIII. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 9 (Constitutional Code) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 9.
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In 1776, in his Fragment on Government, he proclaimed that the only proper basis of law in general, was the fundamental axiom, that it is the greatest happiness of the greatest number which is the measure of right and wrong. But in that work he confined himself to an analysis and exposition of the illogical definitions, contradictions, fallacies, and fictions of Blackstone on the subject of government. So unconscious was Mr Bentham of the defects in the English system of government, that six years afterwards, adopting the opinions of those by whom he had been surrounded in his youth, he supposed the constitutional law of this country would probably be found, upon examination, to be little short of perfection.*
The political changes in Spain and Portugal strongly excited Mr Bentham’s generous sympathies, and the result was his Letters on the Liberty of the Press and Public Discussion, vol. ii. p. 276 et seq., and his Three Tracts on Spanish and Portuguese affairs, vol. viii. p. 465 et seq., which were written in the year 1820. The object of one of these Tracts, was to point out to the Spanish nation, the uselessness and mischievousness of a House of Lords.† In 1821 he wrote his Letters to Count Toreno. The ostensible object of these letters, was an examination of the then proposed Spanish Penal Code; but they contain much that relates to Constitutional Law in general, and the Spanish Constitution in particular.
It has frequently been urged as an objection against the adoption of any code of laws, that, inasmuch as every possible case cannot be provided for, the code itself will soon be swallowed up by commentaries and reported cases: and the Code Civil of France, with its multifarious commentaries, is quoted in support of the objection. By a very simple contrivance Mr Bentham has entirely obviated this difficulty. As often as any article of the Code shall appear not to be sufficiently comprehensive, or explicit, the Judge will propose an amendment in terms, which will afterwards become law, and so be incorporated in the Code, or not, according to the will of the Legislature.* By this means, the rule of action will be preserved from being enveloped in that inextricable confusion, and consequent doubt, which renders a knowledge of it, in this country, scarcely attainable, even to those who devote their whole lives to its study.
Taken altogether, this is undoubtedly Mr Bentham’s greatest, as it was his latest work.† No branch of the science of legislation has he left untouched; no part, however minute, of the business of government, whether administrative or judicial, has escaped the grasp of his powerful mind.
Collectanea relating to Ch. xxxi. Government, Simple or Federative.
Suggestions by Mr Neal.
“1. It is an idea of Mr Bentham’s, that the regiments, and even the companies which compose the Federal Army, should be made up of men from each of the States.
“2. If troops are to be encamped together, or if they have not much to do at any time, they should be mixed up as much as possible.
“3. But if they are in the field, with an enemy before them, they cannot be too little mixed.
“4. That very rivalry which is bad in a time of leisure, would be good if a battle was at hand.
“5. The U. S. A. have had some proof. All the disaffection that occurred in the Revolutionary War, grew out of the separation of the troops, the regiments of this State from the regiments of that State, the men of the south from the men of the north. Still, however, when they came to fight a common enemy, they fought the better for being separated: and when they were joined as a body to attack the British on one side, while the French, as a body, attacked the British on another side, (as at York Town, where Cornwallis surrendered,) they behaved all the better for being each for itself.
“6. It is common to distribute mutinous troops; and we know that the esprit de corps is quite as strong as any other spirit, after a time.
“7. It should be an object with the Federal Government to get possession of certain posts, and to garrison them, in each of the State Governments.
“8. The jealousy of the latter may interfere with such a plan for a time, under a dread of consolidation, but when they see that the federal head is rendered so much the stronger, at so much less expense, by having the command of such and such rivers and highways, they will be likely to yield.
“9. We have found it so in U. S. A.”
“1. Under the old articles of confederation, the Anglo-United States had no power to raise money as a federal body. What they received was by a sort of irregular contribution. Each State gave what it pleased, and no more, and almost every one tried to pay as little as possible, even after the quota of each was fixed by the General Congress.
“2. Much of this evil might have been avoided, if all the States had known what each paid.
“3. But for want of publicity, certain of the States were thought to be defaulters when they were not, and others were supposed to be defaulters to a larger amount than they were.
“4. The consequence was, that each State endeavoured to pay as little as it could.
“5. There was no reputation to be had by doing more than its duty—no disgrace to be apprehended from doing less.
“6. If a tax be levied by the General Government—perhaps it may be well to offer to every State its quota at a discount.
“7. People in America are much in the habit of considering such discount as a profit, or, at any rate, as an abatement for prompt pay.
“8. By the Registration System of Mr Bentham, added to the publicity which he provides for, the difficulty of obtaining a true knowledge of the wealth and population of a country would be materially lessened.
“9. So much so, that ten yearly tables might be furnished to the heads of department, perhaps at less expense than one table such as they are now furnished with (in U. S. A.) every ten years.
“10. The population would be shown every year.
“11. And if, as all contracts are to be registered, the parties could be induced to state the value of the subject matter, the wealth of the country might be nearly estimated in the same way.
“12. But could they be so induced? It is believed they could. Men pay larger taxes than they ought, merely that they may be thought richer than they are. Most men desire to be thought richer than they are.
“13. And they find the political importance of their State to be in proportion to its wealth: whatever else they may do, they will not be likely to underrate the value of their own property.
“14. To counteract the tendency to exaggerate, there will be the counterpoise of taxation.”
[* ]Essay on the Influence of Time and Place in matters of Legislation. 1782. Part i. of this Collection, p. 185.
[† ]In 1830, after the Three Days’ Revolution, Mr Bentham addressed a letter to his French fellow-citizens on the same subject, vol. iv. p. 411 et seq., and the question of a second legislative chamber is also discussed in the first Book of the present Code.
[* ]See Book ii. Ch. xii., Judiciary collectively, Sect. 20, Judges’ eventually emendative function.
[† ]Several pages of Ch. xii. in the second Book, were written by Mr Bentham on the 9th, 10th, and 11th May, 1832; but a few days before he died.