The Online Library of Liberty

A project of Liberty Fund, Inc.

• Errata—vol. I.
• General Preface.
• Introduction to the Study of the Works of Jeremy Bentham;
• Section I.: Bentham’s Style and Method of Thinking.
• Section II.: The Greatest-happiness Principle and Its Application to Morals and Legislation.
• Section III.: The Pursuit of Truth.—fallacies.—principles of Evidence.
• Section IV.: System of Government.
• Section IV.: Law Reform.
• Section VI.: Principles of Punishment.
• Section VII.: Poor Laws, Education, and Other Institutions For National Amelioration.
• Section VIII.: International Law.
• Section IX.: Political Economy.
• Section X.: Logic and Metaphysics. †
• An Introduction to the Principles of Morals and Legislation.
• Preface.
• Chapter I.: Of the Principle of Utility.
• Chapter II.: Of Principles Adverse to That of Utility.
• Chapter III.: Of the Four * Sanctions Or Sources of Pain and Pleasure.
• Chapter IV.: Value of a Lot of Pleasure Or Pain, How to Be Measured.
• Chapter V.: Pleasures and Pains, Their Kinds.
• Chapter VI.: Of Circumstances Influencing Sensibility.
• Chapter VII.: Of Human Actions In General.
• Chapter VIII.: Of Intentionality.
• Chapter IX.: Of Consciousness.
• Chapter X.: Of Motives.
• Chapter XI.: Of Human Dispositions In General.
• Chapter XII.: Of the Consequences of a Mischievous Act.
• Chapter XIII. *: of Circumstances Influencing the Degree of Alarm.
• Chapter XIV.: Reasons For Considering Certain Actions As Crimes. *
• Chapter XV.: § 1. General View of Cases Unmeet For Punishment.
• Chapter XVI.: Of the Proportion Between Punishments and Offences.
• Chapter XVII.: Of the Properties to Be Given to a Lot of Punishment.
• Chapter XVIII. § 1.: Classes of Offences.
• Chapter XIX.: § 1. Limits Between Private Ethics and the Art of Legislation.
• I. Essay On the Promulgation of Laws
• Essay On the Influence of Time and Place In Matters of Legislation.
• Introduction. *
• Chapter I.: Principles to Be Followed In Trans Planting Laws.
• Chapter II.: Regard to Be Paid to Subsisting Institutions.
• Chapter III.: Rules Respecting the Method of Transplanting Laws.
• Chapter IV.: Laws Appear the Worse For Being Transplanted.
• Chapter V.: Influence of Time.
• A Table of the Springs of Action:
• A Fragment On Government;
• Preface to the First Edition, Published In 1776.
• Historical Preface, Intended For the Second Edition.
• Three Letters On the Fragment On Governmen
• Letter the First. of an Examination Into the Merits of a Critique On Blackstone’s Commentaries, Lately Published Under the Title of a Fragment On Government.
• Letter the Second. of an Examination Into the Merits of a Critique On Blackstone’s Commentaries, Lately Published Under the Title of a Fragment On Government.
• Letter the Third. By John Lind, Esq. Afterwards Barrister At Law, to D., Author of Two Letters * On a Fragment On Government.
• Introduction. *
• Chapter I.: Formation of Government.
• Chapter II.: Forms of Government.
• Chapter III.: The British Constitution.
• Chapter IV.: Right of the Supreme Power to Make Laws.
• Chapter V.: Duty of the Supreme Power to Make Laws.
• Principles of the Civil Code.
• Introduction.
• Part I.—: Objects of the Civil Law. *
• Chapter I.: Of Rights and Obligations.
• Chapter II.: Distinct Objects of the Civil Law.
• Chapter III.: Relation Between These Objects.
• Chapter IV.: Of Laws Relative to Subsistence.
• Chapter V.: Of Laws Relative to Abundance.
• Chapter VI.: Propositions of Pathology Upon Which the Advantage of Equality Is Founded.
• Chapter VII.: Of Security.
• Chapter VIII.: Of Property.
• Chapter IX.: Answer to an Objection.
• Chapter X.: Analysis of the Evils Resulting From Attacks Upon Property.
• Chapter XI.: Security and Equality—their Opposition.
• Chapter XII.: Security and Equality—means of Reconciliation.
• Chapter XIII.: Sacrifices of Security to Security.
• Chapter XIV.: Cases Subject to Dispute.
• Chapter XV.: Examples of Attacks Upon Security.
• Chapter XVI.: Of Forced Exchanges.
• Chapter XVII.: Power of the Laws Over Expectation.
• Part II.
• Chapter I.: Of Titles Which Confer a Right to Property. *
• Chapter II.: Another Mode of Acquisition—consent.
• Chapter III.: Another Means of Acquisition—succession.
• Chapter V.: Of Wills.
• Chapter V.: Of Rights Respecting Services—means of Acquiring Them.
• Chapter VI.: Community of Goods—its Inconveniences.
• Chapter VII.: Of Distribution of Loss.
• Part III.: Of the Rights and Obligations Attached to Different Private Conditions.
• Introduction.
• Chapter I.: Of Master and Servant.
• Chapter II.: Of Slavery.
• Chapter III.: Of Guardian and Ward.
• Chapter IV.: Of Parent and Child.
• Chapter V.: Of Marriage.
• Appendix.: of the Levelling System. *
• Principles of Penal Law.
• Part I.: Political Remedies For the Evil of Offences.
• Chapter I.: Subject of This Book.
• Chapter II.: Of Direct Methods of Preventing Offences.
• Chapter III.: Of Chronic Offences.
• Chapter IV.: Of Suppressive Remedies For Chronic Offences.
• Chapter V.: Of Martial Law
• Chapter VI.: Of the Nature of Satisfaction.
• Chapter VII.: Reasons Upon Which the Obligation to Make Satisfaction Is Founded.
• Chapter VIII.: Of the Different Kinds of Satisfaction.
• Chapter IX.: Of the Quantity of Satisfaction to Be Granted.
• Chapter X.: Of the Certainty of Satisfaction.
• Chapter XI.: Of Pecuniary Satisfaction.
• Chapter XII.: Of Restitution In Kind.
• Chapter XIII.: Of Attestative Satisfaction.
• Chapter XIV.: Of Honorary Satisfaction.
• Chapter XV.: Remedies For Offences Against Honour.
• Chapter XVI.: Of Vindictive Satisfaction.
• Chapter XVII.: Of Substitutive Satisfaction, Or At the Expense of a Third Party.
• Chapter XVIII.: Of Subsidiary Satisfaction At the Expense of the Public Treasure.
• Part II.—: Rationale of Punishment.
• Advertisement.
• Book I.: General Principles.
• Chapter I.: Definitions and Distinctions.
• Chapter II.: Classification.
• Chapter III.: Of the Ends of Punishment.
• Chapter IV.: Cases Unmeet For Punishment.
• Chapter V.: Expense of Punishment.
• Chapter VI.: Measure of Punishment.
• Chapter VII.: Of the Properties to Be Given to a Lot of Punishment.
• Chapter VIII.: Of Analogy Between Crimes and Punishments.
• Chapter IX.: Of Retaliation.
• Chapter X.: Of Popularity.
• Book II.: Of Corporal Punishments.
• Chapter I.: Simple Afflictive Punishments. *
• Chapter II.: Of Complex Afflictive Punishments.
• Chapter III.: Of Restrictive Punishments—territorial Confinement.
• Chapter IV.: Imprisonment.
• Chapter V.: Imprisonment—fees.
• Chapter VI.: Imprisonment Examined.
• Chapter VII.: General Scheme of Imprisonment.
• Chapter VIII.: Of Other Species of Territorial Confinement—quasi Imprisonment—relegation—banishment.
• Chapter IX.: Of Simply Restrictive Punishments.
• Chapter X.: Of Active Or Laborious Punishment.
• Chapter XI.: Capital Punishment.
• Chapter XII.: Capital Punishment Examined. *
• Book III.: Of Privative Punishments, Or Forfeitures.
• Chapter I.: Punishment Analyzed.
• Chapter II.: Of the Punishments Belonging to the Moral Sanction.
• Chapter III.: Forfeiture of Reputation.
• Chapter IV.: Of Pecuniary Forfeitures.
• Chapter V.: Forfeiture of Condition.
• Chapter VI.: Forfeiture of the Protection of the Law.
• Book IV.: Of the Proper Seat of Punishment: Or Say, of Mis-seated Punishment.
• Book V.: Of Complex Punishments.
• Chapter I.: Inconveniences of Complex Punishments.
• Chapter II.: Of Transportation.
• Chapter III.: Panopticon Penitentiary.
• Chapter IV.: Felony.
• Chapter V.: Of PrÆmunire.
• Chapter VI.: Outlawry.
• Chapter VII.: Excommunication.
• Book VI.: Miscellaneous Topics.
• Chapter I.: Choice of Punishments—latitude to Be Allowed to the Judges.
• Chapter II.: Of Subsidiary Punishments.
• Chapter III.: Of Surety For Good Conduct.
• Chapter IV.: Defeazance of Punishment.
• Appendix—: On Death-punishment. ∥ Jeremy Bentham to His Fellow-citizens of France.
• Part III.: Of Indirect Means of Preventing Crimes.
• Introduction.
• Chapter I.: Methods of Taking Away the Physical Power of Injuring.
• Chapter II.: Another Indirect Method—hinder the Acquisition of Knowledge Which May Be Rendered Injurious. †
• Chapter III.: Of Indirect Means of Preventing the Will to Commit Offences.
• Chapter IV.: Problem I. to Divert the Course of Dangerous Desires, and Direct the Inclination Towards Those Amusements Which Are Most Conformed to the Public Interest.
• Chapter V.: Problem II. to Make Such Arrangements, That a Given Desire May Be Satisfied Without Prejudice, Or With the Least Possible Prejudice.
• Chapter VI.: Problem III. to Avoid Furnishing Encouragement to Crimes.
• Chapter VII.: Problem IV. to Augment the Responsibility of Individuals, In Proportion As They Are More Exposed to Temptation to Do Wrong.
• Chapter VIII.: Problem V. to Diminish Sensibility With Regard to Temptation.
• Chapter IX.: Problem VI. to Strengthen the Impression of Punishments Upon the Imagination.
• Chapter X.: Problem VII. to Facilitate the Discovery of Offences Committed.
• Chapter XI.: Problem VIII. to Prevent Offences, By Giving to Many Persons an Interest In Preventing Them.
• Chapter XII.: Problem IX. to Facilitate the Recognition and the Finding of Individuals.
• Chapter XIII.: Problem X. to Increase the Difficulty of Escape For Delinquents.
• Chapter XIV.: Problem XI. to Diminish Uncertainty With Regard to Procedure and Punishment.
• Chapter XV.: Problem XII. to Prohibit Accessory Offences, In Order to Prevent Their Principals.
• Chapter XVI.: Of the Cultivation of Benevolence.
• Chapter XVII.: Employment of the Motive of Honour, Or of the Popular Sanction.
• Chapter XVIII.: Of the Employment of the Religious Sanction.
• Chapter XIX.: Uses to Be Drawn From the Power of Instruction.
• Chapter XX.: Use to Be Made of the Power of Education.
• Chapter XXI.: General Precautions Against the Abuse of Authority.
• Chapter XXII.: Measures to Be Taken Against the Ill Effects of an Offence Already Committed—conclusion of the Subject.

A FRAGMENT ON GOVERNMENT;

or a COMMENT ON THE COMMENTARIES: being AN EXAMINATION OF WHAT IS DELIVERED ON THE SUBJECT OF GOVERNMENT IN GENERAL, in the INTRODUCTION TO SIR WILLIAM BLACKSTONE’S COMMENTARIES. with A PREFACE, IN WHICH IS GIVEN A CRITIQUE ON THE WORK AT LARGE.

BY JEREMY BENTHAM, ESQ. OF LINCOLN’S INN.

PREFACE

TO THE FIRST EDITION, PUBLISHED IN 1776.

The age we live in is a busy age; an age in which knowledge is rapidly advancing towards perfection. In the natural world, in particular, every thing teems with discovery and with improvement. The most distant and recondite regions of the earth traversed and explored—the all-vivifying and subtle element of the air so recently analyzed and made known to us,—are striking evidences, were all others wanting, of this pleasing truth.

Correspondent to discovery and improvement in the natural world, is reformation in the moral: if that which seems a common notion be, indeed, a true one, that in the moral world there no longer remains any matter for discovery. Perhaps, however, this may not be the case: perhaps among such observations as would be best calculated to serve as grounds for reformation, are some which, being observations of matters of fact hitherto either incompletely noticed, or not at all, would, when produced, appear capable of bearing the name of discoveries: with so little method and precision have the consequences of this fundamental axiom, It is the greatest happiness of the greatest number that is the measure of right and wrong, been as yet developed.

Be this as it may, if there be room for making, and if there be use in publishing, discoveries in the natural world, surely there is not much less room for making, nor much less use in proposing, reformation in the moral. If it be a matter of importance and of use to us to be made acquainted with distant countries, surely it is not a matter of much less importance, nor of much less use to us, to be made better and better acquainted with the chief means of living happily in our own: If it be of importance and of use to us to know the principles of the element we breathe, surely it is not of much less importance, nor of much less use, to comprehend the principles, and endeavour at the improvement of those laws, by which alone we breathe it in security. If to this endeavour we should fancy any author, especially any author of great name, to be, and as far as could in such case be expected, to avow himself, a determined and persevering enemy, what should we say of him? We should say that the interests of reformation, and through them the welfare of mankind, were inseparably connected with the downfall of his works: of a great part, at least, of the esteem and influence which these works might, under whatever title, have acquired.

Such an enemy it has been my misfortune (and not mine only) to see, or fancy at least I saw, in the Author of the celebrated Commentarieson theLawsofEngland: an author whose works have had, beyond comparison, a more extensive circulation, have obtained a greater share of esteem, of applause, and consequently of influence (and that by a title on many grounds so indisputable), than any other writer who on that subject has ever yet appeared.

It is on this account that I conceived, some time since, the design of pointing out some of what appeared to me the capital blemishes of that work, particularly this grand and fundamental one, the antipathy to reformation; or rather, indeed, of laying open and exposing the universal inaccuracy and confusion which seemed to my apprehension to pervade the whole. For, indeed, such an ungenerous antipathy seemed of itself enough to promise a general vein of obscure and crooked reasoning, from whence no clear and sterling knowledge could be derived; so intimate is the connexion between some of the gifts of the understanding, and some of the affections of the heart.

It is in this view, then, that I took in hand that part of the first volume to which the Author has given the name of Introduction. It is in this part of the work that is contained whatever comes under the denomination of general principles. It is in this part of the work that are contained such preliminary views as it seemed proper to him to give of certain objects, real or imaginary, which he found connected with his subject Law by identity of name: two or three sorts of Laws of Nature, the revealedLaw, and a certain Law of Nations. It is in this part of the work that he has touched upon several topics which relate to all laws or institutions[a] in general, or at least to whole classes of institutions, without relating to any one more than to another.

To speak more particularly, it is in this part of his work that he has given a definition, such as it is, of that whole branch of law which he had taken for his subject; that branch, which some, considering it as a main stock, would term Law without addition; and which he, to distinguish it from those others its condivident branches[b] terms law municipal:—an account, such as it is, of the nature and origin of Natural Society the mother, and of Political Society the daughter, of Law municipal, duly begotten in the bed of Metaphor:—a division, such as it is, of a law, individually considered, into what he fancies to be its parts—an account, such as it is, of the method to be taken for interpreting any law that may occur.

In regard to the Law of England in particular, it is here that he gives an account of the division of it into its two branches (branches, however, that are no ways distinct in the purport of them, when once established, but only in respect of the source from whence their establishment took its rise), the Statute or Written law, as it is called, and the Common or Unwritten:—an account of what are called General Customs, or institutions in force throughout the whole empire, or at least the whole nation;—of what are called Particular Customs, institutions of local extent established in particular districts; and of such adopted institutions of a general extent, as are parcel of what are called the Civil and the Canon laws; all three in the character of so many branches of what is called the Common Law:—in fine, a general account of Equity, that capricious and incomprehensible mistress of our fortunes, whose features neither our Author, nor perhaps any one, is well able to delineate;—of Equity, who having in the beginning been a rib of Law, but since in some dark age plucked from her side, when sleeping, by the hands not so much of God as of enterprising Judges, now lords it over her parent sister:—

All this, I say, together with an account of the different districts of the empire over which different portions of the Law prevail, or over which the Law has different degrees of force, composes that part of our Author’s work which he has styled the Introduction. His eloquent “Discourse on the Study of the Law,” with which, as being a discourse of the rhetorical kind rather than of the didactic, I proposed not to intermeddle, prefaces the whole.

It would have been in vain to have thought of travelling over the whole of so vast a work. My design, therefore, was to take such a portion of it, as might afford a fair and adequate specimen of the character and complexion of the whole. For this purpose, the part here marked out would, I thought, abundantly suffice. This, however narrow in extent, was the most conspicuous, the most characteristic part of our Author’s work, and that which was most his own. The rest was little more than compilation. Pursuing my examination thus far, I should pursue it, I thought, as far as was necessary for my purpose: and I had little stomach to pursue a task, at once so laborious and so invidious, any farther. If Hercules, according to the old proverb, is to be known ex pede; much more, thought I, is he to be known ex capite.

In these views it was that I proceeded as far as the middle of the definition of Law municipal. It was there I found, not without surprise, the digression which makes the subject of the present essay. This threw me at first into no small perplexity. To give no account of it at all;—to pass wholly sub silentio, so large, and in itself so material a part of the work I was examining, would seem strange: at the same time I saw no possibility of entering into an examination of a passage so anomalous, without cutting in pieces the thread of the discourse. Under this doubt, I determined, at any rate for the present, to pass it by; the rather as I could not perceive any connexion that it had with any thing that came before or after. I did so; and continuing my examination of the definition from which it digressed, I travelled on to the end of the Introduction. It then became necessary to come to some definitive resolution concerning this eccentric part of it: and the result was, that being loth to leave the enterprise I had begun in this respect imperfect, I sat down to give what I intended should be a very slight and general survey of it. The farther, however, I proceeded in examining it, the more confused and unsatisfactory it appeared to me: and the greater difficulty I found in knowing what to make of it, the more words it cost me, I found, to say so. In this way, and by these means, it was that the present Essay grew to the bulk in which the reader sees it. When it was nearly completed, it occurred to me, that as the digression itself, which I was examining, was perfectly distinct from, and unconnected with the text from which it starts, so was, or so at least might be, the critique on that digression, from the critique on the text. The former was by much too large to be engrafted into the latter: and since, if it accompanied it at all, it could only be in the shape of an Appendix, there seemed no reason why the same publication should include them both. To the former, therefore, as being the least, I determined to give that finish which I was able, and which I thought was nenecessary: and to publish it in this detached manner, as the first, if not the only part of a work, the principal and remaining part of which may possibly see the light some time or other, under some such title as that of “ACommenton theCommentaries.”

In the meantime, that I may stand more fully justified, or excused at least, in an enterprise to most perhaps so extraordinary, and to many doubtless so unacceptable, it may be of use to endeavour to state with some degree of precision, the grounds of that war which, for the interests of true science, and of liberal improvement, I think myself bound to wage against this work. I shall therefore proceed to mark out and distinguish those points of view in which it seems principally reprehensible, not forgetting those in which it seems still entitled to our approbation and applause.

There are two characters, one or other of which every man who finds any thing to say on the subject of Law, may be said to take upon him;—that of the Expositor, and that of the Censor. To the province of the Expositor it belongs to explain to us what, as he supposes, the Law is: to that of the Censor, to observe to us what he thinks it ought to be. The former, therefore, is principally occupied in stating, or in inquiring after facts:[c] the latter, in discussing reasons. The Expositor, keeping within his sphere, has no concern with any other faculties of the mind than the apprehension, the memory, and the judgment: the latter, in virtue of those sentiments of pleasure or displeasure which he finds occasion to annex to the objects under his review, holds some intercourse with the affections. That which is Law, is, in different countries, widely different: while that which ought to be, is in all countries to a great degree the same. The Expositor, therefore, is always the citizen of this or that particular country: the Censor is, or ought to be, the citizen of the world. To the Expositor it belongs to show what the Legislator and his underworkman the Judge have done already: to the Censor it belongs to suggest what the Legislator ought to do in future. To the Censor, in short, it belongs to teach that science, which, when by change of hands converted into an art, the Legislatorpractises.

Let us now return to our Author. Of these two perfectly distinguishable functions, the latter alone is that which it fell necessarily within his province to discharge. His professed object was to explain to us what the Laws of England were. “Ita lex scripta est,” was the only motto which he stood engaged to keep in view. The work of censure (for to this word, in default of any other, I find it necessary to give a neutral sense), the work of censure, as it may be styled, or, in a certain sense, of criticism, was to him but a parergon—a work of supererogation: a work, indeed, which, if aptly executed, could not but be of great ornament to the principal one, and of great instruction, as well as entertainment, to the reader, but from which our Author, as well as those that had gone before him on the same line, might, without being chargeable with any deficiency, have stood excused: a work which, when super-added to the principal, would lay the Author under additional obligations, and impose on him new duties: which, notwithstanding whatever else it might differ in from the principal one, agrees with it in this, that it ought to be executed with impartiality, or not at all.

If, on the one hand, a hasty and indiscriminating condemner of what is established, may expose himself to contempt; on the other hand, a bigoted or corrupt defender of the works of power becomes guilty, in a manner, of the abuses which he supports: the more so if, by oblique glances and sophistical glosses, he studies to guard from reproach, or recommend to favour, what he knows not how, and dares not attempt, to justify. To a man who contents himself with simply stating an institution as he thinks it is, no share, it is plain, can justly be attributed (nor would any one think of attributing to him any share) of whatever reproach, any more than of whatever applause the institution may be thought to merit. But if not content with this humbler function, he takes upon him to give reasons in behalf of it, reasons whether made or found by him, it is far otherwise. Every false and sophistical reason that he contributes to circulate, he himself is chargeable with: nor ought he to be holden guiltless even of such as, in a work where fact, not reason, is the question he delivers as from other writers without censure. By officiously adopting them, he makes them his own, though delivered under the names of the respective authors: not much less than if delivered under his own. For the very idea of a reason betokens approbation: so that to deliver a remark under that character, and that without censure, is to adopt it. A man will scarcely, therefore, without some note of disapprobation, be the instrument of introducing, in the guise of a reason, an argument which he does not really wish to see approved. Some method or other he will take to wash his hands of it: some method or other he will take to let men see that what he means to be understood to do, is merely to report the judgment of another, not to pass one of his own. Upon that other, then, he will lay the blame: at least he will take care to repel it from himself. If he omits to do this, the most favourable cause that can be assigned to the omission is indifference—indifference to the public welfare—that indifference which is itself a crime.

It is wonderful how forward some have been to look upon it as a kind of presumption, and ingratitude, and rebellion, and cruelty, and I know not what besides, not to allege only, nor to own, but to suffer any one so much as to imagine, that an old-established law could in any respect be a fit object of condemnation. Whether it has been a kind of personification that has been the cause of this, as if the Law were a living creature, or whether it has been the mechanical veneration for antiquity, or what other delusion of the fancy, I shall not here inquire. For my part, I know not for what good reason it is that the merit of justifying a law when right, should have been thought greater than that of censuring it when wrong. Under a government of laws, what is the motto of a good citizen? To obey punctually; to censure freely.

Thus much is certain; that a system that is never to be censured, will never be improved: that if nothing is ever to be found fault with, nothing will ever be mended: and that a resolution to justify every thing at any rate, and to disapprove of nothing, is a resolution which, pursued in future, must stand as an effectual bar to all the additional happiness we can ever hope for; pursued hitherto, would have robbed us of that share of happiness which we enjoy already.

Nor is a disposition to find “every thing as it should be,” less at variance with itself, than with reason and utility. The commonplace arguments in which it vents itself justify not what is established, in effect, any more than they condemn it; since whatever now is establishment, once was innovation.

Precipitate censure, cast on a political institution, does but recoil on the head of him who casts it. From such an attack it is not the institution itself, if well grounded, that can suffer. What a man says against it, either makes impression or makes none. If none, it is just as if nothing had been said about the matter; if it does make an impression, it naturally calls up some one or other in defence. For if the institution is in truth a beneficial one to the community in general, it cannot but have given an interest in its preservation to a number of individuals. By their industry, then, the reasons on which it is grounded are brought to light; from the observation of which, those who acquiesced in it before upon trust, now embrace it upon conviction. Censure, therefore, though ill-founded, has no other effect upon an institution than to bring it to that test, by which the value of those, indeed, on which prejudice alone has stamped a currency, is cried down, but by which the credit of those of sterling utility is confirmed.

Nor is it by any means from passion and ill-humour, that censure, passed upon legal institutions, is apt to take its birth. When it is from passion and ill-humour that men speak, it is with men that they are in ill-humour, not with laws; it is men, not laws, that are the butt of “arrogance.”[d] Spleen and turbulence may indeed prompt men to quarrel with living individuals; but when they make complaint of the dead letter of the Law, the work of departed lawgivers, against whom no personal antipathy can have subsisted, it is always from the observation, or from the belief at least, of some real grievance. The Law is no man’s enemy; the Law is no man’s rival. Ask the clamorous and unruly multitude—it is never the Law itself that is in the wrong; it is always some wicked interpreter of the Law that has corrupted and abused it.[e]

Thus destitute of foundation are the terrors, or pretended terrors, of those who shudder at the idea of a free censure of established institutions: so little does the peace of society require the aid of those lessons which teach men to accept of any thing as a reason, and to yield the same abject and indiscriminating homage to the Laws here, which is paid to the despot elsewhere. The fruits of such tuition are visible enough in the character of that race of men who have always occupied too large a space in the circle of the profession; a passive and enervate race, ready to swallow any thing, and to acquiesce in any thing; with intellects incapable of distinguishing right from wrong, and with affections alike indifferent to either; insensible, short-sighted, obstinate; lethargic, yet liable to be driven into convulsions by false terrors; deaf to the voice of reason and public utility; obsequious only to the whisper of interest, and to the beck of power.

This head of mischief, perhaps, is no more than what may seem included under the former. For why is it an evil to a country, that the minds of those who have the Law under their management should be thus enfeebled? It is because it finds them impotent to every enterprise of improvement.

Not that a race of lawyers and politicians of this enervate breed is much less dangerous to the duration of that share of felicity which the state possesses at any given period, than it is mortal to its chance of attaining to a greater. If the designs of a Minister are inimical to his country, what is the man of all others for him to make an instrument of or a dupe? Of all men, surely none so fit as that sort of man who is ever on his knees before the footstool of Authority, and who, when those above him, or before him, have pronounced, thinks it a crime to have an opinion of his own.

Those who duly consider upon what slight and trivial circumstances, even in the happiest times, the adoption or rejection of a Law so often turns; circumstances with which the utility of it has no imaginable connexion—those who consider the desolate and abject state of the human intellect, during the periods in which so great a part of the still subsisting mass of institutions had their birth—those who consider the backwardness there is in most men, unless when spurred by personal interests or resentments, to run a-tilt against the colossus of authority—those, I say, who give these considerations their due weight, will not be quite so zealous, perhaps, as our Author has been, to terrify men from setting up what is now “private judgment,” against what once was “public:”[f] nor to thunder down the harsh epithet of “arrogance” on those, who with whatever success, are occupied in bringing rude establishments to the test of polished reason. They will rather do what they can to cherish a disposition at once so useful and so rare:[g] which is so little connected with the causes that make popular discontentments dangerous, and which finds so little aliment in those propensities that govern the multitude of men. They will not be for giving such a turn to their discourses as to bespeak the whole of a man’s favour for the defenders of what is established: nor all his resentment for the assailants. They will acknowledge, that if there be some institutions which it is “arrogance” to attack, there may be others which it is effrontery to defend. Tourreil[h] has defended torture: torture established by the “public judgment” of so many enlightened nations. Beccaria (“indecent” and “arrogant” Beccaria!) has condemned it. Of these two, whose lot among men would one choose rather,—the Apologist’s or the Censor’s?

Of a piece with the discernment which enables a man to perceive, and with the courage which enables him to avow, the defects of a system of institutions, is that accuracy of conception which enables him to give a clear account of it. No wonder, then, in a treatise partly of the expository class, and partly of the censorial, that if the latter department is filled with imbecility, symptoms of kindred weakness should characterize the former.

The former department, however, of our Author’s work, is what, on its own account merely, I should scarce have found myself disposed to intermeddle with. The business of simple exposition is a harvest in which there seemed no likelihood of there being any want of labourers; and into which therefore I had little ambition to thrust my sickle.

At any rate, had I sat down to make a report of it in this character alone, it would have been with feelings very different from those of which I now am conscious, and in a tone very different from that which I perceive myself to have assumed. In determining what conduct to observe respecting it, I should have considered whether the taint of error seemed to confine itself to parts, or to diffuse itself through the whole. In the latter case, the least invidious, and, considering the bulk of the work, the most beneficial course, would have been to have taken no notice of it at all, but to have sat down and tried to give a better. If not the whole in general, but scattered positions only, had appeared exceptionable, I should have sat down to rectify those positions with the same apathy with which they were advanced. To fall in an adverse way upon a work simply expository, if that were all there were of it, would have been alike ungenerous and unnecessary. In the involuntary errors of the understanding there can be little to excite, or at least to justify, resentment. That which alone, in a manner, calls for rigid censure, is the sinister bias of the affections. If, then, I may still continue to mention as separate, parts which in the work itself are so intimately, and, indeed, undistinguishably blended, it is the censorial part alone that has drawn from me that sort of animadversion I have been led to bestow indiscriminately on the whole. To lay open, and if possible supply, the imperfections of the other, is an operation that might indeed of itself do service; but that which I thought would do still more service, was the weakening the authority of this.

Under the sanction of a great name, every string of words, however unmeaning—every opinion, however erroneous, will have a certain currency. Reputation adds weight to sentiments from whence no part of it arose, and which, had they stood alone, might have drawn nothing, perhaps, but contempt. Popular fame enters not into nice distinctions. Merit in one department of letters affords a natural, and in a manner irrecusable presumption of merit in another, especially if the two departments be such between which there is apparently a close alliance.

Wonderful, in particular, is that influence which is gained over young minds, by the man who, on account of whatever class of merit, is esteemed in the character of a preceptor. Those who have derived, or fancy themselves to have derived knowledge from what he knows, or appears to know, will naturally be for judging as he judges; for reasoning as he reasons; for approving as he approves; for condemning as he condemns. On these accounts it is, that when the general complexion of a work is unsound, it may be of use to point an attack against the whole of it without distinction, although such parts of it as are noxious as well as unsound be only scattered here and there.

On these considerations, then, it may be of use to show, that the work before us, in spite of the merits which recommend it so powerfully to the imagination and to the ear, has no better title on one account than on another, to that influence which, were it to pass unnoticed, it might continue to exercise over the judgment.

The Introduction is the part to which, for reasons that have been already stated, it was always my intention to confine myself. It is but a part even of this Introduction that is the subject of the present Essay. What determined me to begin with this small part of it is, the facility I found in separating it from every thing that precedes or follows it. This is what will be more particularly spoken to in another place.[i]

It is not that this part is among those which seemed most open to animadversion: it is not that stronger traces are exhibited in this part, than in another, of that spirit in our Author which seems so hostile to Reformation, and to that Liberty which is Reformation’s harbinger.

It is not here that he tramples on the right of private judgment, that basis of every thing that an Englishman holds dear:[k] it is not here, in particular, that he insults our understandings with nugatory reasons; stands forth the professed champion of religious intolerance; or openly sets his face against civil reformation.

It is not here, for example, he would persuade us, that a trader who occupies a booth at a fair is a fool for his pains; and on that account no fit object of the law’s protection.[l]

It is not here that he gives the presence of one man at the making of a law, as a reason why ten thousand others that are to obey it, need know nothing of the matter.[m]

It is not here, that after telling us, in express terms, there must be “an actual breaking” to make burglary, he tells us, in the same breath, and in terms equally express, where burglary may be without actual breaking; and this because “the law will not suffer itself to be trifled with.”[n]

It is not here, that after relating the Laws by which peaceable Christians are made punishable for worshiping God according to their consciences, he pronounces with equal peremptoriness and complacency, that every thing, yes, “every thing is as it should be.”[o]

It is not here, that he commands us to believe, and that on pain of forfeiting all pretensions to either “sense or probity, “that the system of our jurisprudence is, in the whole and every part of it, the very quintessence of perfection.[p]

It is not here that he assures us in point of fact, that there never has been an alteration made in the law that men have not afterwards found reason to regret.[q]

It is not here that he turns the Law into a Castle, for the purpose of opposing every idea of “fundamental” reparation.[r]

It is not here that he turns with scorn upon those beneficient Legislators, whose care it has been to pluck the mask of Mystery from the face of jurisprudence.[s]

If here,* as every where, he is eager to hold the cup of flattery to high station, he has stopt short, however, in this place of idolatry.[t]

It is not then, I say, this part, it is not even any part of that Introduction, to which alone I have any thoughts of extending my examination, that is the principal seat of that poison, against which it was the purpose of this attempt to give an antidote. The subject handled in this part of the work is such as admits not of much to be said in the person of the Censor. Employed, as we have seen, in settling matters of a preliminary nature—in drawing outlines, it is not in this part that there was occasion to enter into the details of any particular institution. If I chose the Introduction, then, in preference to any other part, it was on account of its affording the fairest specimen of the whole, and not on account of its affording the greatest scope for censure.

Let us reverse the tablet. While with this freedom I expose our Author’s ill deserts, let me not be backward in acknowledging and paying homage to his various merits; a justice due not to him alone, but to that Public, which now for so many years had been dealing out to him (it cannot be supposed altogether without title) so large a measure of its applause.

Correct, elegant, unembarrassed, ornamented, the style is such as could scarce fail to recommend a work still more vitious in point of matter to the multitude of readers.

He it is, in short, who, first of all institutional writers, has taught Jurisprudence to speak the language of the Scholar and the Gentleman; put a polish upon that rugged science; cleansed her from the dust and cobwebs of the office: and if he has not enriched her with that precision that is drawn only from the sterling treasury of the sciences, has decked her out, however, to advantage, from the toilette of classic erudition; enlivened her with metaphors and allusions; and sent her abroad in some measure to instruct, and in still greater measure to entertain, the most miscellaneous and even the most fastidious societies.

The merit to which, as much perhaps as to any, the work stands indebted for its reputation, is the enchanting harmony of its numbers: a kind of merit that of itself is sufficient to give a certain degree of celebrity to a work devoid of every other. So much is man governed by the ear.

The function of the Expositor may be conceived to divide itself into two branches: that of history, and that of simple demonstration. The business of history is to represent the Law in the state it has been in, in past periods of its existence: the business of simple demonstration, in the sense in which I will take leave to use the word, is to represent the Law in the state it is in for the time being.[v]

Again, to the head of demonstration belong the several businesses of arrangement, narration, and conjecture. Matter of narration it may be called, where the law is supposed to be explicit, clear, and settled: matter of conjecture, or interpretation, where it is obscure, silent, or unsteady. It is matter of arrangement to distribute the several real or supposed institutions into different masses, for the purpose of a general survey; to determine the order in which those masses shall be brought to view; and to find for each of them a name.

The businesses of narration and interpretation are conversant chiefly about particular institutions. Into the details of particular institutions it has not been my purpose to descend. On these topics, then, I may say, in the language of procedure, non sum informatus. Viewing the work in this light, I have nothing to add to, or to except against, the public voice.

History is a branch of instruction which our Author, though not rigidly necessary to his design, called in, not without judgment, to cast light and ornament on the dull work of simple demonstration: this part he has executed with an elegance which strikes every one: with what fidelity, having not very particularly examined, I will not take upon me to pronounce.

Among the most difficult and the most important of the functions of the demonstrator, is the business of arrangement. In this our Author has been thought, and not, I conceive, without justice, to excel; at least in comparison of any thing in that way that has hitherto appeared. ’Tis to him we owe such an arrangement of the elements of Jurisprudence, as wants little, perhaps, of being the best that a technical nomenclature will admit of. A technical nomenclature, so long as it is admitted to mark out and denominate the principal heads, stands an invincible obstacle to every other than a technical arrangement. For to denominate in general terms, what is it but to arrange? and to arrange under heads, what is it but to denominate upon a large scale? A technical arrangement, governed then in this manner, by a technical nomenclature, can never be otherwise than confused and unsatisfactory. The reason will be sufficiently apparent, when we understand what sort of an arrangement that must be, which can be properly termed a natural one.

That arrangement of the materials of any science may, I take it, be termed a natural one, which takes such properties to characterize them by, as men in general are, by the common constitution of man’s nature, disposed to attend to: such, in other words, as naturally, that is readily, engage, and firmly fix the attention of any one to whom they are pointed out. The materials, or elements here in question, are such actions as are the objects of what we call Laws or Institutions.

Now then, with respect to actions in general, there is no property in them that is calculated so readily to engage, and so firmly to fix the attention of an observer, as the tendency they may have to, or divergency (if one may so say) from, that which may be styled the common end of all of them. The end I mean is Happiness:[w] and this tendency in any act is what we style its utility: as this divergency is that to which we give the name of mischievousness. With respect, then, to such actions in particular as are among the objects of the Law, to point out to a man the utility of them, or the mischievousness, is the only way to make him see clearly that property of them which every man is in search of; the only way, in short, to give him satisfaction.

From utility, then, we may denominate a principle, that may serve to preside over and govern, as it were, such arrangement as shall be made of the several institutions, or combinations of institutions, that compose the matter of this science: and it is this principle that, by putting its stamp upon the several names given to those combinations, can alone render satisfactory and clear any arrangement that can be made of them.

Governed in this manner by a principle that is recognised by all men, the same arrangement that would serve for the jurisprudence of any one country, would serve with little variation for that of any other.

Yet more. The mischievousness of a bad law would be detected, at least the utility of it would be rendered suspicious, by the difficulty of finding a place for it in such an arrangement: while, on the other hand, a technical arrangement is a sink that with equal facility will swallow any garbage that is thrown into it.

That this advantage may be possessed by a natural arrangement, is not difficult to conceive. Institutions would be characterized by it in the only universal way in which they can be characterized; by the nature of the several modes of conduct which, by prohibiting, they constitute offences.[x]

These offences would be collected into classes denominated by the various modes of their divergency from the common end; that is, as we have said, by their various forms and degrees of mischievousness; in a word, by those properties which are reasons for their being made offences: and whether any such mode of conduct possesses any such property, is a question of experience.[y] Now, a bad Law is that which prohibits a mode of conduct that is not mischievous.[z] Thus would it be found impracticable to place the mode of conduct prohibited by a bad law under any denomination of offence, without asserting such a matter of fact as is contradicted by experience. Thus cultivated, in short, the soil of Jurisprudence would be found to repel, in a manner, every evil institution; like that country which refuses, we are told, to harbour any thing venomous in its bosom.

The synopsis of such an arrangement would at once be a compendium of expository and of censorial Jurisprudence: nor would it serve more effectually to instruct the subject, than it would to justify or reprove the Legislator.

Such a synopsis, in short, would be at once a map, and that an universal one, of Jurisprudence as it is, and a slight but comprehensive sketch of what it ought to be. For, the reasons of the several institutions comprised under it would stand expressed, we see, and that uniformly (as in our Author’s synopsis they do in scattered instances), by the names given to the several classes under which those institutions are comprised. And what reasons? Not technical reasons, such as none but a Lawyer gives, nor any but a Lawyer would put up with:[aa] but reasons, such as were they in themselves what they might and ought to be, and expressed too in the manner they might and ought to be, any man might see the force of as well as he.

Nor in this is there any thing that need surprise us. The consequences of any Law, or of any act which is made the object of a Law—the only consequences that men are at all interested in—what are they but pain and pleasure? By some such words, then, as pain and pleasure, they may be expressed: and pain and pleasure, at least, are words which a man has no need, we may hope, to go to a Lawyer to know the meaning of.[bb] In the synopsis, then, of that sort of arrangement which alone deserves the name of a natural one, terms such as these—terms which, if they can be said to belong to any science, belong rather to Ethics than to Jurisprudence, even than to universal Jurisprudence, will engross the most commanding stations.

What, then, is to be done with those names of classes that are purely technical?—with offences, for example, against prerogative, with misprisions, contempts, felonies, præmunires?[cc] What relation is it that these mark out between the laws that concern the sorts of acts they are respectively put to signify, and that common end we have been speaking of? Not any. In a natural arrangement, what then would become of them? They would either be banished at once to the region of quiddities and substantial forms; or if, and in deference to attachments too inveterate to be all at once dissolved, they were still to be indulged a place, they would be stationed in the corners and bye-places of the Synopsis: stationed, not as now to give light, but to receive it. But more of this, perhaps, at some future time.

To return to our Author. Embarrassed, as a man must needs be, by this blind and intractable nomenclature, he will be found, I conceive, to have done as much as could reasonably be expected of a writer so circumstanced; and more and better than was ever done before by any one.

In one part, particularly, of his Synopsis,* several fragments of a sort of method which is, or at least comes near to, what may be termed a natural one,[dd] are actually to be found. We there read of “corporal injuries;” of “offences against peace;” against “health;” against “personal security;”[ee] “liberty;” “property;”—light is let in, though irregularly, at various places.

In an unequal imitation of this Synopsis that has lately been performed upon what is called the Civil Law, all is technical: all, in short, is darkness: scarce a syllable by which a man would be led to suspect that the affair in hand were an affair that happiness or unhappiness was at all concerned in.[ff]

To return, once more, to our Author’s Commentaries. Not even in a censorial view would I be understood to deem them altogether without merit. For the institutions commented on, where they are capable of good reasons, good reasons are every now and then given: in which way, so far as it goes, one half of the censor’s task is well accomplished. Nor is the dark side of the picture left absolutely untouched. Under the head of “Trial by Jury,” are some very just and interesting remarks on the yet-remaining imperfections of that mode of trial.* and under that of “Assurances by matter of Record,” on the lying and extortious jargon of Recoveries.† So little, however, are these particular remarks of a piece with the general disposition that shows itself so strongly throughout the work, indeed so plainly adverse to the general maxims that we have seen, that I can scarce bring myself to attribute them to our Author. Not only disorder is announced by them, but remedies, well-imagined remedies, are pointed out. One would think some Angel had been sowing wheat among our Author’s tares.[gg]

With regard to this Essay itself, I have not much to say. The principal and professed purpose of it is, to expose the errors and insufficiencies of our Author. The business of it is therefore rather to overthrow than to set up; which latter task can seldom be performed to any great advantage where the former is the principal one.

To guard against the danger of misrepresentation, and to make sure of doing our Author no injustice, his own words are given all along: and, as scarce any sentence is left unnoticed, the whole Comment wears the form of what is called a perpetual one. With regard to a discourse that is simply institutional, and in which the writer builds upon a plan of his own, a great part of the satisfaction it can be made to afford depends upon the order and connexion that are established between the several parts of it. In a comment upon the work of another, no such connexion, or at least no such order, can be established commodiously, if at all. The order of the Comment is prescribed by the order, perhaps the disorder, of the text.

The chief employment of this Essay, as we have said, has necessarily been to overthrow. In the little, therefore, which has been done by it in the way of setting up, my view has been not so much to think for the reader, as to put him upon thinking for himself. This I flatter myself with having done on several interesting topics; and this is all that at present I propose.

Among the few positions of my own which I have found occasion to advance, some I observe which promise to be far from popular. These, it is likely, may give rise to very warm objections: objections which in themselves I do not wonder at, and which in their motive I cannot but approve. The people are a set of masters whom it is not in a man’s power in every instance fully to please, and at the same time faithfully to serve. He that is resolved to persevere without deviation in the line of truth and utility, must have learnt to prefer the still whisper of enduring approbation, to the short-lived bustle of tumultuous applause.

Other passages too there may be, of which some farther explanation may perhaps not unreasonably be demanded. But to give these explanations, and to obviate those objections, is a task which, if executed at all, must be referred to some other opportunity. Consistency forbad our expatiating so far as to lose sight of our Author: since it was the line of his course that marked the boundaries of ours.

HISTORICAL PREFACE,

INTENDED FOR THE SECOND EDITION.

I. The Bookseller’s obliging attention, in applying for my permission to do what he had a full right to do without any such permission, had produced on my part a desire to make, in some shape or other, a return for it. I could think of none more suitable than the supplying him with a few recollections, relative to the effects, public and private, which followed this my first attempt, and the then unseen causes in which they have for some time appeared to me to have had their root.

I had gone some length, when the conception struck me, that, by being put together in a certain order, the facts might be made productive of an incomparably more useful effect: and in this hope I must find what consolation I can for the consumption of a quantity of time much exceeding my original expectations. The change consists, in the adding, as deduced from the particular facts, a confirmation of those general conceptions, in the development and application of which, no small portion of the aggregate mass of my intervening works have been employed, namely, that no system or form of government ever had, or ever could have had, for its actual and principal end in view, the good of any other persons, than the very individuals by whom, on each occasion, the powers of it were exercised: that, in particular, this has been the case with the least bad of all bad governments—the English; that of the Anglo-American United States being the first of all governments to which the epithet of good, in the positive sense of the word, could with propriety be attached: that, in England in particular, in this case have been all the individuals, and all the bodies, among whom the powers of government have, at any time, been shared; and in a more particular manner, such of the functionaries as have been at the head of the judicial department; functionaries by whom, under the notion and pretence of exercising no other than judicial power, legislative power has, with the connivance and in subservience to the sinister interest of the supreme and sole ostensible Legislature, been all along usurped and exercised.

What at the same time occurred to me was—that those all-comprehensive conclusions, of which in my view the facts are demonstrative, and which will accordingly, in this comparatively short trifle, be seen expressed in the most direct terms, and without any the smallest doubt, disguise, or reserve,—are the same as those which, in the Memoirs of Bubb Doddington and of Horace Walpole, as well as in many others, by which of late years such new and instructive lights of the same colour have been spread over the field of Government, suggest themselves to an observant mind, but have not in either of those works received any such determinate expression: and that thus, in the minds of some readers, this little additional Fragment, thus incidentally pinned upon a former Fragment, might have the farther use, of serving as a sort of key to the mysteries, as yet but incompletely revealed, in those no less instructive than interesting anterior, and in every sense greater, works.

As to claim to confidence, the relative time of publication gives to this Preface, so far as it goes, the advantage over those works. For the correctness of the narration, it affords a sort of security, which in those instances has no place: the narrative not having in either of them been intended for publication, till the Author should be out of the way of all personal responsibility in respect of it.*

II. When the Fragment made its appearance, the sensation it produced was for some time not inconsiderable. To the unqualified admiration which the Commentaries had for so many years been in possession of, it constituted the first considerable exception, perhaps the very first exception, bearing any thing like a general aspect, that had ever been seen in print. No name being in the titlepage, nor any information concerning the author obtainable from the bookseller, conjecture set itself to work. More than one father was found for it: each of the very first class: no minor one: Lord Mansfield, Lord Camden, and Mr. Dunning: the latter, five years afterwards, cabineted and ennobled under the title of Lord Ashburton.

It was by Dr. Johnson that it was fathered upon Dunning, that prime leader of the King’s Bench Bar. Much about that time, I belonged to a dinner club, of which Johnson was the Despot. It was not, however, immediately from his mouth that the conjecture reached me: it came through some other member, to whom he had mentioned it. Completely erroneous as it was, it was not perhaps completely groundless: the sagacity of his deluded but powerful mind was exemplified by it. The eloquence of Dunning was eminently and exclusively of the logical cast; not any the slightest ray of sentimentality was ever seen to issue from it. As to myself, in the days of my studentship, the chief part of my attendance was paid at the King’s Bench. If, in my style, appropriate aptitude in any shape or degree is discernible, it is probably in no small degree to Dunning that it is due. Precision, correctness, clearness, guardedness, in expression,—closeness in argumentation,—seemed to me his characteristic features: in these, combined with force, he seemed to me altogether without a rival. To these he added a sort of controversial insinuation, such as belonged to his purposes, and not to mine. That which I here speak of is that which I heard from him in public; for in private, at that time, I never had had any the slightest intercourse with him. At the Bar, of all men that I had ever heard, he had been the one whom I had heard with the greatest pleasure and attention; the one, whose style in speaking, it seemed to me, that on all occasions it would be matter of the highest satisfaction to me to be able in any way to imitate.

When the style has thus been mentioned, every thing has been mentioned in which the Lexicographer’s conjecture could find any the slightest support. It proves the collateral fact—that not only the affections, but the acquirements, of the pre-eminent lawyer who was the subject of it, were altogether unknown, to the miserable and misery-propagating ascetic, and instrument of despotism, by whom it was delivered. In the Fragment, marks of some little general acquaintance with the field of science and general literature may be seen here and there peeping out. The office of his father—a country Attorney, whose abode was in the little town from which the son, on his elevation, took his title—had been the University of John Dunning. Whatever analogy may, in respect of certain faculties, have had place between the illustrious advocate and the obscure reformist,—in respect of feelings and wishes with relation to the universal interest, nothing could be much more opposite. Some grounds for this assurance will be presently seen.

The two other conjectures were still more completely groundless: and, though coming from professional men, as completely destitute of, or rather opposite to, manifest probability, as conjectures can easily be. I speak of the intrinsic evidence afforded by the work, compared with the high political situation, and professionally known characters, of these its reputed authors.

As to Lord Camden, nothing could be much less assorted to his character or situation than a work of the complexion of the Fragment. On the hill of forensic ambition, Lord Camden’s place had for years been on the summit; the Author’s was at the very bottom. To Lord Camden, in his situation, nothing could be more completely wanting than all inducement to assume and keep up the tone of juvenility and tyro-ship, which will be seen pervading the work, and painting in genuine colours the state of the Author’s mind.

For improvements in the state of the Law, the Author had long been under the stimulus of that appetite, which age, the grand moderator of most appetites, has left hitherto undamped. To Lord Camden, all improvement in that line was an object of undisguised aversion. For this assurance, the direct evidence afforded by documents of a public nature—the direct evidence—negative and positive together, will of itself, if my recollection does not greatly deceive me, afford tolerably sufficient warrant; and, if so, the little private incidents which will be seen presently, will receive their explanation from it, and operate in the character of circumstantial evidence in confirmation of it. In favour of innovation in any such shape, not a syllable, I am confident, is to be found in any speech of his that has been handed down to us. If this be correct, here then, though but negative, is the direct evidence. As to positive evidence, the same sources would be found to afford that which is but too conclusive. I recollect not, nor would it be worth the search, at what exact time my eyes were first wounded by it. The following little history will enable the reader, should he think it worth his while, to find it.

Some time after the appearance of the Fragment, the House of Commons was found to contain a small knot of young men, in whose minds a disposition to contribute to the improvement of the Law had begun to manifest itself. William Eden, who afterwards entered into the diplomatic career, and was raised to the Peerage by the title of Lord Auckland, was one of them; probably enough (for I have no recollection about the others) at the head of them. The first fruit of their labours was the production of a bill, which had for its object the clearing the Statute-Book of a few insignificant samples of its antique rubbish. If I recollect right, there were half a dozen of them. Altogether incapable were they of doing good in any shape. On the other hand, they did no harm in any shape: always excepted the encumbering the Statute-Book, contributing to the confusion with which it covers the field of legislation, and loading, with so much useless lumber, the memory and the purse. Of one of these samples alone, the remembrance still dwells with me. Date, the 27th of Edward I.; language, French; object, preventing the importation of certain pieces of coined metal called pollards or crokards. I know not how it happened, nor is it material: it was with that commodity as with corn at present, the abundance of it was a nuisance: severe penalties were employed for the exclusion of it. The reader need scarce be informed that the danger of an excess in that article could not be very menacing at the time of the bringing in of Mr. Eden’s Bill. In the Commons it was suffered to pass: but, in the House of Lords, it found armed against it an authority altogether irresistible.

It was Lord Camden’s. From such authority, in a place where authority is every thing, very few words were sufficient. I remember reading them in the newspapers. Of the words themselves I have no recollection, nor are they worth searching for: as to the purport of them, what I am confident of, is, that it would be found in the Book on Fallacies, probably in Mr. Dumont’s edition of it in French; and moreover, that it would serve for the exclusion, as well of the most important improvement, as of the minute projected benefit which it was thus employed to crush.

Not even by any of the most determined anti-reformists of the present day, with or without the mask of a reformist on his countenance, would the reform, if such it may be called, be termed either intemperate or immoderate. Seeing it thus dealt with, I was chagrined to the degree that may be imagined: chagrined, and at that time even astounded; for at that time, no suspicion to the prejudice of the liberalism of that head of the Whig lawyers had, I believe, as yet presented itself to my mind.

III. Among the effects of the work, such as it was, was a sort of concussion, produced by it in the sort of world it belonged to: in the world of politics, but more particularly in the world of law: more particularly still, in the higher regions; the inhabitants of which, in this as in other professions, form a sort of celestial conclave, of the secrets of which, whatsoever observation is endeavoured to be made from the subjacent low grounds, is made through a medium impregnated with awe, admiration, and conjecture.

The peep here given into its mysteries will, perhaps, be found neither uninteresting nor uninstructive: it may be assistant to the grand purposes which the work itself has for its objects—objects which may be seen containing the germ of every thing which, on the same field, has been sown by the same hand since. A more particular object is the throwing light into the den of the long-robed Cacus.—Cacus felt the light, and trembled.

The more extensive, and indeed all-comprehensive object is, the pointing attention to the imperfections which even at that time of day were seen swarming in the frame of the government, and to the ricketiness of the only foundations in which, on the ground of argument, it had ever found support. No such imperfection having place but what brought profit, in some shape or other, to those among whom the power was shared, their interest of course was, that those same imperfections should, in their whole mass, remain for ever unremoved, and therefore be at all times as little as possible in view.

As a basis for all such operations as should be directed to this same object, the Fragment, at the same time, Fragment as it was, undertook to set up, and may be seen setting up accordingly, the greatest happiness of the greatest number, in the character of the proper, and only proper and defensible, end of government; as the only standard by which any apt judgment could be formed on the propriety of any measure, or of the conduct of any person, occupied in making opposition, or giving support to it. At that time of day, so far as regards the general frame of the Government, scarcely in any one of those imperfections did the Author of the Fragment see the effect of any worse cause than inattention and prejudice: he saw not in them then, what the experience and observations of nearly fifty years have since taught him to see in them so plainly, the elaborately organized, and anxiously cherished and guarded products of sinister interest and artifice.

Under the name of the principle of utility, (for that was the name adopted from David Hume), the Fragment set up, as above, the greatest happiness principle in the character of the standard of right and wrong in the field of Morality in general, and of Government in particular. In the field of Government, it found in this country the original contract in possession of that character.

The existence of that pretended agreement (need it now be said?) was and is a fable: authors of the fable, the Whig lawyers. The invention, such as it was, had been made by them for their own purposes, and nothing could have been better contrived: for, the existence of the contract being admitted, the terms remained to be settled: and these would of course be, on each occasion, what the interest of the occasion required that they should be. It was in this offspring of falsehood and sinister interest that the Fragment beheld the phantom, on the shoulders of which, the Revolution that substituted Guelphs to Stuarts, and added corruption to force, had till then had its sole declared support. Against this phantom, the Fragment will be seen making declared war: the only war but one that had ever been made against it, on any side, and the only war without exception that had ever been made against it, on the side and in favour of the people. Against this attack, thus made, no defence has, I believe, ever been attempted: scarcely since that time has the chimera been seen to show itself; scarcely, at any rate, under its own name. Such as it was, it was the offspring of Fiction; meaning here by the word Fiction, that which is meant by it in law-language.

A fiction of law may be defined—a wilful falsehood, having for its object the stealing legislative power, by and for hands which could not, or durst not, openly claim it,—and, but for the delusion thus produced, could not exercise it.

Thus it was that, by means of mendacity, usurpation was, on each occasion, set up, exercised, and established.

A sort of partnership was thus formed: formed, in so far as a partnership can be said to have place, between a master and his at all times removable servants: a partnership, having for its object the extracting, on joint account, and for joint benefit, out of the pockets of the people, in the largest quantity possible, the produce of the industry of the people. Monarch found force; lawyers, fraud: thus was the capital formed. Creatures of a day, and for years together, neither possessing present nor certainty of future existence, the representatives of the people, now such convenient partners, were not as yet ripe for admittance. Parties in the concern as yet but those two:—monarch and lawyers. Whatever was the fraud thus practised, partners on both sides found their account in it: interests of both provided for of course.

The monarch, not being acknowledged in the capacity of sole legislator, had every thing to gain, by suffering these his, at all times, removable creatures, thus to exercise the power belonging to that office; for, with the instrument thus constructed, and always at hand—an instrument which continually increasing experience showed to be so fit for use—depredation and oppression might at all times be exercised: exercised in shapes and degrees in which he could not have dared to exercise them by himself in a direct way, or to propose in an open way to the representatives of the people.

As little could the authors of this power-stealing system fail to find their account in it: since, for the sake of the profit received by him as above, their master could do no otherwise than connive all along at those other lies and devices, by which depredation and oppression were acted by them for their own benefit. Here again was another source of profit to the head partner: for, in virtue and to the extent of his power of patronage,—upon each vacancy, their office, with the annexed plunderage, became his; his—not to retain indeed, but at any rate his to give.

Mendacity is a name too soft for falsehood thus applied; applied to such purposes, and by men so situated: for, in comparison of the suffering thus produced, the greatest ever produced by any thing to which the word is applied in the intercourse between individual and individual, would be found inconsiderable. An operation, by which the nature and effects of it would be placed in their full and true light, is obvious and simple. Run over the field of law, as laid down in any of the books: pick out the several parts in which a fiction in any shape has been employed; the most extensively and mischievously operative will be found in Blackstone: for others, the books of judicial procedure called Books of practice, would be to be looked at: set down the several fictions, under the several heads they belong to; in each instance, the particular mischief to the public, together with the profit to the judge or judges of the judicatory (called the court, for the purpose of letting in the servants to a share of the worship paid to the master) are the articles to be looked for; if honestly looked for, in no case would there be much difficulty in finding them; in the profit made out of each fabrication, would be seen the final cause of it.

One pre-eminently serviceable and all-comprehensive effect there is, to which, if to no other, they would every one of them be found contributory. This is general debility in the understanding of the deluded people: for, the more prostrate that debility, the more flagrant the ulterior degree of depredation and oppression, to which they might thus be brought to submit. Of the degree of debility produced, no better measure need be given, than the fact of men’s having been in this way made to regard falsehood as an instrument not only serviceable but necessary to justice.

In others, this vice was not only punished all the while by these appointed guardians of virtue, but painted in its proper colours. That which is vice in all others, how could it in them be virtue? how, but that to them belonged the power of making wrong and right change natures, and determining what shall be morality as well as what shall be law; making as well the one as the other thus dependent—not on their effects on the happiness of the community at large, but on the ever-changeable good pleasure of the possessors of power, by what means soever obtained, and in what manner soever exercised; thus, in regard to morality: and in regard to truth, the power of determining, if not what shall be truth, what, to all practical purposes, shall be taken for it. To produce ductility, produce debility. No recipe was ever more effectual: no time at which the virtue of it has been more thoroughly understood than at present. But for this, how could judges have been suffered to make law, or priests gospel, as they have been and still are?

Though in the Fragment the mask was not taken off so completely or forcibly as here, still the effects produced by any such disclosure may, without much difficulty, be imagined. Nowhere, till this little work appeared, nowhere had there been a heart to declare—nowhere, perhaps, even an eye clearly to see—that, in the hands of these arbiters of every man’s destiny, this pretended product of matchless wisdom—this object of veneration to the deluded multitude—had never been any thing better than a cover for rascality. By no former hand had the gauntlet been thrown down in the face of the brotherhood: that gauntlet, which, though so repeatedly offered again to learned vizards no eye has ever yet seen the possibility of taking up.

IV. The effects produced on sinister interest—on sinister interest in these high places—by the wounds thus given to it, may without much difficulty be imagined. But the greatest happiness of the greatest number requires, that they should be not only imagined but proved: and this they shall now be, in so far as natural probability, aided by whatever support it may be thought to receive from the character of the narrator, can gain credence, for the indication given of a set of actings and workings, of which, for the most part, the mind, in its most secret recesses, was the theatre. These effects the reader will see in the deportments of the various personages—keepers and workers of the state engines—in relation to the present work and another by the same hand; and among them will be found the several shining lights, to which, by the conjecturists, who thereby so clearly proved themselves not to have been members of the above-mentioned conclave, the work was, as above, ascribed.

He will see the great lawyers of the age—those of the one party as well as those of the other—concurring (and he will learn to judge whether it was not by concert) in a system of deportment and discourse having for its effect—(and he will judge, whether it had not also for its object)—the keeping covered up in the napkin the talents, such as they were, by which the unwelcome performance had been produced. He will see the hand of a great statesman employing itself at length in the endeavour to draw them out of the napkin, and put them to use.

But for the great purpose which have been seen, never would the patience of the public have been tried by any such string of personal anecdotes, in which an insignificant individual cannot but be the most prominent figure. In themselves the facts, are much too trivial to afford a warrant even for the time employed in bringing them to view—a time which, considering the engagements, the performance of which has thus been delayed,* cannot be thought of without remorse. One consolation is, as already observed—(and this it is that constituted the temptation)—that, to the all-comprehensive theory of which those engagements required the establishment, these anecdotes will afford the confirmation given by particular experience.

Fundamental principles of the Constitutional branch of the all-comprehensive Code now forming, three:—

1. End-indicating principle, the greatest-happiness principle.

2. Obstacle-indicating principle, the universal self-preference-announcing principle.

3. Means-indicating principle, the interest-junction-prescribing principle. To him to whom the House of Commons’ Votes, or even the newspaper indications given of them, are familiar, neither a warrant, nor a key will be found wanting for these denominations, laconic as they are.

Of all the great public men who will here pass under review, one alone will be seen, to whom the greatest happiness principle, and the Author of the Fragment, in respect of the proclamation and applications made of it, was not, according to all appearance, an object of aversion. Of this aversion, the cause lay (it will be seen) in the nature of the species, of the class, and of the situation of the class on the one part; not in the nature of the individuals on either part. In that same situation, the conduct of any other individuals would, without material variation, have been the same: the individuals in question being of both parties; men, in every sense as good as any that are ever likely to be in those same situations so long as the form of government is what it is.

Sinister interests, two in the same breast—lawyer’s interest and ruling statesman’s interest: lawyer’s interest, hostile to that of all suitors, and of all those who may have need to be so, that is to say—of all who are not lawyers. Ruling statesman’s interest, hostile to all subjects’ interest, in a form of government, which, to the inclination common to all breasts, adds in the ruling hands adequate power: power, to an amount sufficient for winding up to the pitch of perfection the system of depredation and oppression: power, by means of the corruption and delusion, which are the essence of this form of government, in addition to that physical force and those means of intimidation and remuneration, which belong of necessity to every form of government.

Of the three confederated interests, that of the lawyer tribe is in a more particular degree mischievous: mischievous, in as much as, to their share in the common sinister interest, they add one which is peculiar to themselves, and in as much as, by the peculiar strength given to their minds by exercise, they take the lead of all the other members of the confederacy, and are the men by whose exertion whatsoever is most difficult of that which is wished to be done, is done.

And thus will be seen an exemplification of the obstacle-indicating—the universal-self-preference indicating—principle.

So long as the form of Government continues to be what it is,—not better and better, but continually worse and worse,—must the condition of the people be, until the sinister sacrifice—the sacrifice of the interest of the many to the interest, joint or several, of the one or the few—shall have been consummated. In that which Austrian Italy—in that which English Ionia—in that which Ireland is—may be seen even now that which England is hastening to be. Forms continuing what they are, Englishmen cannot too soon prepare themselves for being shot, sabred, hanged, or transported, at the pleasure of the placed and momentarily displaceable creatures, of a Monarch, free from all check, but the useless one of an Aristocracy, sharing with him in the same sinister interest. Precedents have already been established: and, by whomsoever made, whether by those who claim to make law, or by those who in the very act disclaim it, every thing for which a precedent has been made is regarded as justified. Of the several particular interests of the Aristocrat in all his shapes, including the fee-fed lawyer, and the tax-fed or rent-fed priest, all prostrate at the foot of the throne—is composed the everlastingly and unchangeably ruling interest. Opposite to the interest of the greatest number—opposite through the whole field of Government—is that same ruling interest. That which this interest requires, is—that the quantity of power, wealth, and factitious dignity, in the possession and at the disposal of the ruling few, should be at all times as great as possible. That which the interest of the subject many requires, is—that the quantity of power and wealth at the disposal of the ruling few should at all times be as small as possible: of these necessary instruments, the smallest quantity; of that worse than useless instrument—factitious dignity, not an atom: no such instrument of corruption and delusion, no such favoured rival, and commodious substitute, to meritorious and really useful service: no such essentially disproportionate mode of remuneration, while, for really useful service, apt notification would afford the only remuneration, which in the shape of honour can be proportionate. Can opposition be more complete? But, to be governed by men, themselves under the dominion of an interest opposite to one’s own, what is it but to be governed by one’s enemies? In or out of office; possessors or expectants; Tories or Whigs; leaning most to the Monarchical side, or most to another side equally hostile to that of the people—what matter is it in which of these situations a man is, if to all the interest, he adds more than the power, of an enemy? Vain, therefore—vain for ever, will be all hope of relief, unless and until the form given to the Government is such, that those rulers in chief, whose particular interests are opposite to the universal interest, shall have given place to others whose particular interests have been brought into coincidence with that same universal interest; in a word, till the interest-junction-prescribing principle, as above, shall have been carried into effect. In the Anglo-American United States, this problem—has it not been solved?

Six public characters must now be brought upon the stage; Mr. or Sir Alexander Wedderburne, Lord Mansfield, Earl of Shelburne, Lord Camden, Mr. Dunning, Colonel Barré: denominations those which belonged to them at the time spoken of.

In the case of Lord Shelburne, it will be seen how ill-assorted the picture of the statesman is with those of the lawyers that precede and follow it. But the interpolation is unavoidable; without it, the other personages could not have been brought to view.

V. The first personage to be produced is Wedderburne; at the time here spoken of, Solicitor-General; afterwards, with the title of Lord Loughborough, Chief-Justice of the Common Pleas, and under that and the subsequent title of Earl of Rosselyn, Lord Chancellor.

The Fragment had not been out long, when a dictum which it had drawn from him, showed me but too plainly the alarm and displeasure it had excited. The audacious work had come upon the carpet: in particular, the principle of utility which it so warmly advocates: this principle, and the argument in support of it, in opposition to the Whig-Lawyer fiction of the original contract. “What say you to it?” said somebody, looking at Wedderburne. Answer—“It is a dangerous one.” This appalling word, with the application made of it to the principle, contains all that was reported to me. Of the rest of the conversation nothing; any more than of the other parties to it: for on this, as on other similar occasions, what came to me come through cautious strainers: attached to me, more or less, by principle and affection, but to the adversary by pressing interests. The dictum, such as it is, though but from this one member of the conclave, will be a sufficient key to whatsoever might otherwise seem mysterious in the language or deportment of those others.

Warm from the mouth of the oracle, the response was brought to me. What I saw but too clearly was—the alarm and displeasure of which it was the evidence: what I did not see was—the correct perception couched in it; the perception, I mean, of the tendency of the principle with reference to the particular interest of the particular class, to the head of which the already elevated lawyer was on his way.

Till within a few years—I am ashamed to think how few—did this same response remain a mystery to me. The principle of utility a dangerous principle! Dangerous, to endeavour to do what is most useful! The proposition (said I to myself) is a self-contradictory one. Confusion of ideas on his part (for I could find no other cause) was the cause to which I attributed it. The confusion was in mine. The man was a shrewd man, and knew well enough what he meant, though at that time I did not. By this time my readers, most of them, know, I hope, what he meant, as well as he. The paraphrase, by which upon occasion they would expound it, would be to some such effect as this:—“By utility, set up as the object of pursuit and standard of right and wrong in the practice of government, what this man means to direct people’s eyes to is—that which, on each occasion, is most useful to all those individuals taken together, over whom Government is exercised. But to us, by whom the powers of government are exercised over them,—to us, so far from being most useful, that which would be most useful to them, would, on most occasions, be calamitous. Let this principle but prevail, it is all over with us. It is our interest, that the mass of power, wealth, and factitious dignity we enjoy at other people’s expense, be as great as possible: it is theirs, that it be as small as possible. Judge, then, whether it is not dangerous to us. And who should we think of but ourselves?”

Thus far Wedderburne. What this one lawyer said, all those others thought. And who knows how many hundred times they may not have said it?

Not long after, I found myself in company with him. It was the first time and the only one. It was at the house of my intimate friend Linda, of whom presently. Any account given of me by him could not but have been in an eminent degree favourable. Wedderburne eyed me, but did not speak to me. He was still Solicitor-General. With all deference, I ventured some slight question to him. It was of a sort that any one could have put to any one. Answer short and icy.

VI. I come now to Lord Mansfield. Not many days from the publication of the Fragment had elapsed, when he had not only taken cognisance of it, but been delighted by it. There was in those days a Mr. Way, who was, or had been, in office under him, and whom, it should seem, he had been in the habit of employing to read to him at odd times. Be this as it may, he was employed in reading this little work. Some connexions of mine were intimate with Mr. Way. The effects produced by it on the language and deportment of the noble and learned hearer, were reported to them by this reader, and it may be imagined they were not long in reaching me. Some of the remarks that dropt from his Lord were also mentioned. While this or that passage was reading—“Now,” cried his Lordship, “he seems to be slumbering:” while this or that other—“Now he is awake again.” Which were the sleepy parts, which the animated and animating ones, was at that time a mystery to me: to me, it was at length cleared up: whether it be so to the reader, he will presently have to determine.

This was not the only ground I had for expecting a favourable notice on the part of Lord Mansfield. On that occasion it had happened to me to minister, as will be seen presently, to an antipathy of his: on another occasion it fell in my way to minister to his self-complacency. I think, it was between the publication of the Fragment on Government, and that of the Introduction to Morals and Legislation, that I took my second trip to Paris. In the passage-boat from Dover I joined company with David Martin. David Martin was a Scotchman: he was a portrait painter; he had painted a portrait of Lord Mansfield; his errand to Paris was to procure an artist, to make an engraving of it. From an English hand, an engraving that would be satisfactory was not to be had for less than 1500 guineas. Strange (I remember his mentioning) was the artist, by whom that price had been required. The young painter’s errand to Paris was to import a cheaper one. The expedition was not altogether fruitless. Two engravings there are, and I believe no more than two considerable ones, of Lord Mansfield. One represents him in the zenith of his political career; the other, near the close of it. The earliest is that for which his admirers are indebted to the brush, and in no small degree to the graver, of David Martin. While at Paris, Martin and I took up our quarters in the same lodging-house. His inquiries brought him to an engraver, whose name was Littret de Montigny; they entered into an agreement; I drew up the articles of it. The subject was not without its difficulties; the language French: I am but a sorry Frenchman now; I was, I imagine, not quite so bad an one then. My performance went through the hands of several Frenchmen, artists as well as others; one alteration alone being made in it; the substitution of the word art to the word metier, which, with unconsciously offensive impropriety, I had employed. The artist was imported; but perseverance failed: the task of finishing fell back into the hand of the painter, as above.

Martin was familiar at Ken Wood. To the noble and learned patron, the Parisian expedition could not be an uninteresting one: particulars were called for and given:—the document was produced. He read it and took particular notice of it: it received his unqualified approbation. The draught was, in the whole complexion of it, one of the ordinary track of business. He inquired who the draughtsman was, and was informed.

From the first morning on which I took my seat on one of the hired boards, that slid from under the officers’ seats in the area of the King’s Bench (it was about ten years before the publication of the Fragment), at the head of the gods of my idolatry, had sitten the Lord Chief-Justice. What his politics were, I did not comprehead; but, being his, they could not but be right. Days and weeks together have I made my morning pilgrimage to the chief seat of the living idol, with a devotion no less ardent and longing, and somewhat less irrational, than if it had been a dead one. Summons to the interior would have been admission into Paradise. No such beatification was I predestinated to receive. The notice taken of my Fragment had kindled my hopes; the notice taken of my draught had revived them; they were revived a second time, and with no better result.

Among my long-robed disciples, the first in the order of time (George Wilson, silkgownsman, and head of the Norfolk circuit, being second, and Romilly third) was John Lind. Having received the Holy Ghost—as much of it at least, whatever it be, as the bishop could give him—he had gone from Baliol College, Oxford, to a chaplainship at the sublime Porte. Dismissed for being too agreeable to his Excellency’s mistress, he was, in his passage through Warsaw, retained to read English to a Prince Czartorinski, father or uncle to Prince Adam, whose correspondence with me appears in my Papers on Codification, and uncle or cousin to the amiable, the virtuous, the unfortunate Stanislaus, last Polish King of the Aristocratico-Monarchico-Anarchical Republic of Poland. With the Prince he had not been long, before he was taken from him by the King. With the rank of Privy Counsellor he was made Director of a corps of 400 Cadets, organized by him, under the orders of the King, to serve as a seminary of liberal education, and a rampart against priestcraft. Every thing could not be begun at once: education at large remained in the hands of Jesuits.

While he was occupied in this charge, the time came for a nephew of the King’s, Prince Stanislaus Poniatowski, to be sent upon his travels. The care of him was given to John Lind. It was the time of the first partition. Lind had not been many weeks in London, when, under the title of “Letters on Poland,” he produced an octavo volume, in which the atrocity of the transaction was painted in lively and appropriate colours. Aided by his commissions and his address, it procured for the author high and favourable notice. He was well received at the Prime Minister’s—Lord North’s. He was well received at the house of his Honourable and Right Reverend Brother, and at the card-table of his not less Reverend Wife. He was rather too much at that Table; sometimes have I seen him returning from it with a tolerably well-filled purse, but too often with an empty one. His connexion with the King of Poland assisted his celebrity in bringing him acquainted with Lord Mansfield, with whom Stanislaus, during a year’s stay in England, had been intimate. Lind was, in fact, the Resident of Poland at the Court of London, though, as being a subject of the King of England, he could not be received as the representative of a foreign potentate. Twice or thrice a-week, as regularly as the post went out, he used to write a letter to his master. Occasion pressing, I remember with what pride I one day officiated as his deputy. In the sunshine of official favour, he produced another political work. It was entitled, “Remarks on the Acts of the Thirteenth Parliament, &c.” It touches, however, upon no others than those which related to the Colonies. The foundation he had from me: it constitutes the first section of the work. I had committed to writing, in the compass of those few pages, the state of the question, as it had presented itself to me. He informed me of his project. Recollecting this paper, I put it into his hand. Little did I expect to see it figuring away in print, much less without the alteration of a word, and in a situation so leading and conspicuous.

This second work received the commendations of Lord Mansfield. The freedom with which his Lordship’s Quebec Bill is treated in it was pardoned by him; in declaration and appearance at least: in that part I had not any share; but it can scarce be that he did not think I had. The basis, on which the whole work rested, could not have been unobserved by him. Lind being so much with Lord Mansfield, his Lordship could not but hear again of me. In fact he did hear of me; mention, as having been made of me, was every now and then reported to me; to the last, however, I heard nothing as from him.

If not by Horace Walpole’s Memoirs, by the general histories of the time, I must suppose the reader more or less acquainted with the character of Lord Mansfield. If so, he cannot have turned over many pages in the Fragment, without seeing, that the principles displayed in it stand in as direct opposition to the so well known biases and endeavours of the great Ultra-Tory, as can easily be imagined.

To me all this neglect remained a mystery. The Chief-Justice had retired from office, perhaps from life, before my inquiries had led me any further into Constitutional law than the Fragment shows. Till a dozen years ago or less, (will it be believed?) I knew not what was meant by influence. For I know not how long, my mind remained fast bound in the silken chains thrown around it by his eloquence. When quibbles stood in the way of his purpose, he would speak slightingly of them, and I thought him liberal. Invectives rained upon him, but I thought him calumniated. As the American controversy, the badness of the only arguments employed against bad government, whether on the one side of the water or the other, had left me sticking to it. Party, I belonged to none: I knew not what sort of a thing party was. In that book of Lind’s, I had placed the question, as above, on the ground of the greatest happiness of the greatest number, meaning always in both countries taken together. With me it was a matter of calculation: pains and pleasures, the elements of it. No party had argued the question, or taken it up, on that ground. No party had any stomach for calculation: none, perhaps, would have known very well how to go about it, if they had. The battle was fought by assertion. Right was the weapon employed on both sides. “We have a right to be as we now choose to be,” said people on the American side. “We have a right to continue to make you what we choose you should be,” said rulers on the English side. “We have a right to legislate over them, but we have no right to tax them,” said Lord Camden, by way of settling the matter: as if irreconcileable interests could be reconciled by a distinction without a difference. When our self-styled Representatives join with King, Lords, and Soldiers, in forcing us to give them money,—Speaking to the King, they say—we give it you. “Doing this,” said the Whig Chancellor, “is not making laws:” revenue laws are not laws. By the same reason, it may be proved, that if, before he takes your purse, a highwayman says Give it me, this will not be robbing you.

I have been running wild: age does so upon stories of younger years. I come back to the aversion. I come back to the fruit of it—the neglect which sat so heavy upon me. What remains is—to reconcile the belief of it, with the delight afforded by the same work at the same time, as proved to me by the unquestionable evidence above mentioned. The task will not be a difficult one.

There was a heart-burning between the noble and learned Lord, and the Author of the Commentaries. In the King’s Bench, while his Lordship was Chief, Sir William was Puisne. To the Puisne, sitting on the same Bench with the scorning and overpowering Chief, was sitting in hot water. “I have not been consulted, and I will be heard,” said another of his Puisnes once in my hearing: it was Wiles, son to the Chief Justice. But to return to Blackstone. The state of humours could no longer be concealed, when, for quiet, the weaker party was glad to slip down from the King’s Bench into the Common Pleas. All this put together—if the Fragment be looked into in this view, there will not, it is believed, be much difficulty in discovering, which were the sleepy, which the awakening parts. In some were seen the tormentor of his tormentor; hence the delectation: in others, a liberalism and a logic, threatening his despotism and his rhetoric; hence the aversion.

VII. Now opens a very different scene: chief place, Bowood. In the year 1781 and not before, not less than five years after its publication, the Fragment—for such was the declaration made—produced me a visit from the Earl of Shelburne; that visit, kindness,—and that sort and degree of esteem, which it belongs to any person, rather than to the object of it, to call by its appropriate name. Nothing could have been more unexpected. By Lord Mansfield I was disappointed; at Lord Shelburne’s I was indemnified: at Ken Wood, I should have been mortified and disgusted; at Bowood I was caressed and delighted. A novel—nor that altogether an uninteresting one—might be made, out of a correct and unvarnished picture, of the incidents, to which that visit, to a garret at Lincoln’s-Inn, gave birth. Fifty years hence, if I have nothing else to do, I will set about it.

Of esteem, not to speak of affection, marks more unequivocal one man could not receive from another, than, in the course of about twelve years, I received from Lord Shelburne. But for such only as belong to the great public purpose in view, can time or room be found here. One thing will be found not altogether foreign to it. Though not its existence, my attachment to the great cause of manking received its first encouragement, and its first development, in the affections I found in that heart, and the company I found in that house. Amongst the friendships it gave me, was Dumont’s; one that it helped to form, was Romilly’s.

Some weeks had elapsed, when the visit to Lincoln’s Inn produced one of some minutes to Shelburne House, and that, one of some weeks to Bowood. This had not lasted many days, when the purpose of it, or at least one purpose, was declared to me. A scene took place, the remembrance of which is, at more than forty years distance, as fresh in my mind as if it had been but yesterday. The rest of the company used to sit down to supper: I not. A little before they repaired to the supper table, I used to retire for the night. In my way was a room, on a table in which, the guests used to receive or deposit the lights they had need of in passing to and from their several apartments. Repairing to it one evening for my candles,—in the act of taking them up, I was met by the Master of the House, with those which he came to deposit. “Mr. Bentham,” said he, candles in hand—“Mr. Bentham,” in a tone somewhat hurried, as his manner sometimes was, “what is it you can do for me?” My surprise could not but be visible. Candles still in hand—“Nothing at all, my Lord,” said I; “nothing that I know of: I never said I could: I am like the Prophet Balaam: the word that God putteth into my mouth—that alone can I ever speak.” For discernment he was eminent; for quickness of conception not less so. He took this for what it was meant for—a declaration of independence. He deposited his candles; I went off with mine. If by this rencontre any expectation of his was disappointed,—neither his kindness, nor the marks of his esteem, were lessened. Some years after, more than once did it happen to me to do something for him. But, so it happened, it was always in pursuit of the greatest happiness principle; and whatever was done, nothing did he know of it till after it was done. I shall again have to speak of him presently.

VIII. Another cause may perhaps have had its share in producing the visit of Lord Shelburne to the assailant of the Commentaries: a breach (I mean) between the Lord and the Commentator. The fact was once mentioned, but neither time nor particulars ever known to me. If it was by the above supposed confederacy that the visit was so long retarded, and at that time this breach recent,—by that stimulus was perhaps given the force, by which at last their trammels were broken through.

Blackstone seems to have had something about him, that rendered breaches with him not difficult. It was while I was a child without a guide,—idling, trembling, and hiding myself at Queen’s College Oxford,—that the Commentator, then Fellow of All Souls, took possession of the new created Law Professorship. Browne, Provost of Queen’s, was then Vice-Chancellor. Professor served Vice-Chancellor with notice, accompanying it with a claim of precedence. The Vice-Chancellor, when in the streets, was, and I suppose is, preceded by a stick with silver on it, called a mace, and a man called a beadle to carry it. “Let him walk,” said Browne, “before my Beadle.”

Lord Shelburne had been the making of Blackstone. The Lord had been in personal favour with George III. He introduced the Lecturer, and made the Monarch sit to be lectured: so he himself told me. The lecturer, as any body may see, shewed the King how Majesty is God upon earth: Majesty could do no less than make him a Judge for it. Blasphemy is—saying any thing a Judge can gratify himself, or thinks he can recommend himself, by punishing a man for. If tailoring a man out with God’s attributes, and under that very name, is blasphemy, none was ever so rank as Blackstone’s. The Commentaries remain unprosecuted; the poison still injected into all eyes: piety is never offended by it: it may be perhaps, should piety in high places ever cease to be a tool of despotism.

I, too, heard the lectures; age, sixteen; and even then, no small part of them with rebel ears. The attributes, I remember, in particular, stuck in my stomach. No such audacity, however, as that of publishing my rebellion, was at that time in my thoughts.

IX. Now as to Lord Camden. The preparatory mention of Lord Shelburne was necessary to the mention of his political associates and advisers, and in particular this their Chief. I was already at Bowood, when the Ex-Chancellor, with his unmarried daughter, made their appearance. The marked kindness and attention shown to me in that family, could leave no doubt as to the manner in which I had been spoken of to the grave personage. From the very first, however, the manner of his address to me carried with it in my eyes a sort of coldness and reserve. This being the first time of my seeing him,—I was not in a condition to form an immediate judgment, whether such was his general manner, or whether there was any thing in it, that applied in a particular manner to myself.

Of the drift of my book, and the sort of sensation it had made, it is not in the nature of the case he should have been ignorant: not a syllable on the subject did he ever say to me. He saw the countenance that was shown to me by every body else: no such countenance did he ever show to me. No advance did I ever make to him: to him, in his situation, it belonged, not to me, in mine, to make advances. On no occasion did he ever make any to me.

Not many days had elapsed, when a little incident helped to strengthen my suspicions. One evening after dinner, Miss Pratt was singing: I was accompanying her on a violin. “Not so loud! Not so loud! Mr. Bentham!” cried Lord Camden, tone and manner but too plainly indicating displeasure.

“You eat too much, Mr. Bentham!” said he one day to me; nor was there any want of hearers. “You eat too much. Reading so much as you do, two or three ounces a-day should be enough for you.” The fact was—all the rest of the company sat down to two meals of meat: I, unless when forced, never to more than one. At that one, if excess was ever observed, none was ever experienced. Two purposes seemed as if aimed at: representing me as a glutton, and representing me as that sort of bookworm, by which nothing could ever be “done for” his noble friend. In a similar strain was what little he ever said to me. “But your own deportment:” says somebody—“may there not have been something in it that was displeasing to him?” To this point I shall speak presently.

A man of such celebrity, and who had for so many years occupied the first places in the law, could not fail of awakening, in a man in my situation and of my turn of mind, a desire to form some conception of the bent of his. I observed his conversation; I observed the books he opened, and set before him. I watched with particular interest every opportunity of observing, whether the system of law ever presented itself to his mind, as being, in any part of it, or as to any point in it, susceptible of melioration. By nothing I could ever catch, could I ever divine that any such conception had ever entered into his head:—with the exception of here and there an anecdote, such as the sphere he had always moved in could not fail to have furnished him with, I heard nothing in his talk that might not have been heard in any drawing-room, or in any coffeehouse.

X. I come now to John Dunning.

It was one evening after dinner that he made his appearance. He came fresh from Bristol, of which city he was Recorder. I found him standing in a small circle, recounting his exploits. They were such as, when associated with the manner in which he spoke of them, and the feelings that sat on his countenance, brought up to me Lord Chief-Justice Jefferies. He had been the death of two human beings: he looked and spoke as if regretting there had not been two thousand. Upon my approach, the scowl that sat on his brow seemed more savage than before. The cause I had not at the time any suspicion of: the effect was but too visible. As I came up, he was wiping his face: the weather was warm, and he had in various ways been heated. It was the tail only of a sentence that I heard. It appeared to me incorrect: I expressed a hope that it was so. Subdued and respectful (I well remember) was my tone; for, notwithstanding the freedom to which no member of the Bar could have been unaccustomed,—the temerity, such as it was, was by no means unaccompanied with the fear of giving offence. The scowl was deeper still: he made no answer: he took no further notice of me: bystanders smothered a titter as well as they could. Supper was soon after served: it was a meal of which I never partook. He went off the next morning: I saw no more of him: I had seen quite as much as was agreeable to me.

In conversation with Lord Shelburne once, an observation of mine was—that what Junius says of the practice of the long robe, when he calls it “the indiscriminate defence of Right and Wrong,” is not precisely true; for that, upon the whole, Wrong, in his quality of best customer, enjoys a pretty decided preference. “Natural enough,” replied my noble friend: and I remember hearing it observed of Dunning, that he never seemed to do the thing so much con amore, as when the wrong was on his side.

XI. Last comes Colonel Barré.

On his arrival at Bowood, he too found me already established there: Barré was a perfect man of the world. Dunning was sitting for one of Lord Shelburne’s seats: Barré for another. Speeches are assigned to him in the Debates, and mention is made of him in Junius:—similes are there ascribed to “Mr. Burke;” “sarcasms” to “Colonel Barré.” But his great merit was martyrdom: he had suffered under the third of the Georges, as of late Sir Robert Wilson under the fourth. Being a soldier of fortune, he was regarded as being, in a more exclusive degree, the property of his patron. When the patron became Minister, an indemnity, value £3000 a-year, was given to the protegé. During his ministry, the patron occupied the villa at Streatham, at which Brewer Thrale used to entertain Burke, Johnson, and their associates. I was sitting there after dinner with Lord Shelburne and Barré,—no one else present but Lady Shelburne,—when the print was brought in, which represents Lord Shelburne giving the dole to Barré in the character of Belisarius: both are striking likenesses.

Now as to what passed at Bowood between him and me. Towards others, his deportment was easy: towards myself, stately, distant, and significant. What (said I to myself) can I do to propitiate this minor divinity? Except from the sort of reports which give nothing but the surface, he was altogether unknown to me. In my portmanteau I had imported two articles:—an unfinished quarto in print, of which presently,—and a manuscript of between a dozen and a score of pages. It was an attack upon Deodands. When a man, who has a child and a waggon, loses the child by the waggon’s going over it,—a notion, that my paper had been labouring to produce, was—that the loss of the child would be suffering enough, without the loss of the waggon’s being added to it. Different has been, and continues to be, the opinion of the sages of the law; so, of course, of those who worship them.—“English” are all our institutions: this, as well as every other.

The Colonel being a soldier, not a lawyer, while presenting him with this specimen of them, little did I think of encountering in his mind any very formidable prepossession. Vain confidence!

One day, finding him alone at the common reading-table, I put into his hand my little paper. A day or two after, I ventured to ask whether it had been looked at. “Mr. Bentham,” said he, returning it with a look and tone of scorn, “you have got into a scrape.”

“Scrape, Colonel! what scrape? I know of no scrape the case admits of.” No answer. The unfortunate paper was pocketed. I went my way, and there the matter ended.

“You are a greenhorn: you know nothing of the world. You wrote that book of your’s; you made your foolish attacks upon the lawyers; you thought it would be a treat to us to see you running at them: you are a silly fellow; you don’t know how necessary they are to us. What have we to do with Deodands? You thought to cut a figure; you have got yourself into a scrape.” In this paraphrase, I found the interpretation—the only one I could ever find—for the appalling riddle. A confirmation, which this interpretation received, will be seen presently. It was not, however, received till some years afterwards.

Meantime, a little incident rendered me a little more fortunate: it recovered for me more or less of the ground which the Deodand had lost me. It was at the dawn of the French Revolution. Some of the leading men were in London. The Lansdowne House cook not being yet arrived from the country (it was the autumn of 1788), the dinner was given at Colonel Barré’s. Circumstances were such, that I could not well have been left out of the invitation. In the drawing-room, the conversation turned upon the House of Common’s debates. The Colonel’s name had been looked for and not found. The remark touched upon a sore place—so I found afterwards. Embarrassment was visible. I stept in to his relief. “M. le Colonel,” said I, “est comme le Dieu dans la fable: il ne paroit que dans les grandes occasions.” A buzz of applause run round: the Colonel, whom I had got out of this scrape, was most conspicuous and most audible.

It was two or three years after this that the enigma of the scrape received the solution above hinted at. When my proposal, for a Penitentiary System upon the Panopticon plan, had received acceptance, Colonel Barré, with every body else, knew of it.

Speaking to a common friend who had been acting officially on the occasion of it,—“I am glad,” said he, “to see Mr. Bentham turning his hand to useful things.” Seeing that I do not betray his name, the friend, whether he remembers it or no, will, I hope, pardon me.* Why was the one thing useful, while the other was so much otherwise as to have got me into a scrape? The reader has, perhaps, already answered for me. Neither the lawyer tribe, nor any other section of the ruling few, had any visible interest in the evils to which the Panopticon plan would have applied a remedy. A prison, in which all the prisoners could, at all times, be seen at a glance by the keeper,—without his being seen by any of them, or changing his place,—was more intelligible than a deodand: and, if a man, who had then the whole Ministry with him—Pitt, Dundas, Rose, every body—could be said to be in a scrape, it could not be a very pitiable one.

I have mentioned the Colonel’s embarrassment. The cause of it was this; I knew it not till afterwards. Person and manner imposing; self-possession perfect. But ignorance was extraordinary; extraordinary even in Honourable House: indolence, no less so. From Dunning, the patron used to extract his information; to Barré, he was forced to administer it. “The trouble I used to have in fighting him up,” (that was Lord Shelburne’s expression to me one day) “is altogether inconceivable.”

The inaptitude of the showy soldier may perhaps furnish an additional means of interpretation for the “What-can-you-do-for-me?”

The Ministry (Lord North’s) was already tottering. In America, the war of misgovernment, against the only possible good government, was unpromising. Profiting by the weakness of England, Ireland had raised herself within an ace of independence. It was her quinquennium; it was her golden age: by universal confession, it was an age of concord, tranquility, morality, festivity, and happiness. But for the sinister aristocratical interest of her Whig Chief, Charlemont,—she would have substituted, to her still increasing misery, that felicity which can never be seen on this side of the Atlantic, till it has been imported from the other.

As Ministry darkened, Opposition brightened. Always on the watch for men of talents in all lines, Lord Shelburne was now on the look-out for recruits in the line of politics. He had felt the want of them; it has been seen how. Dunning could not be at the Bar or at Chambers, and in the House, at the same time.

XII. This greatest happiness principle had been declared “dangerous:” of course every consistent application of it: this was from Alexander Wedderburne. Comes now a confirmation by Lord Camden and Mr. Dunning: words different, for so circumstances required: meaning, the same. The Introduction to Morals and Legislation, was not published till 1789: it had been printed, the greatest part of it, in 1781; the second edition of it is now in the press. In the trunk, which accompanied me to Bowood, in 1781, was a copy of it: it had not been long there, before it was in Lord Shelburne’s hands.

All the entreaties I could use were insufficient, to prevent him from treating the Ladies with it at the breakfast table. Not to speak of the general complexion of it, in one particular it was peculiarly ill adapted to such an auditory. In some eight or ten places, the reader will, in the second edition, meet with the word sexual. In the place of this, stands, in the first edition, a word, more appositely stationed in a medical advertisement, than in the places in which I had seated it. When the word bolted out, some little embarrassment was the consequence. At length, the word certain presented itself to the noble Lecturer,—and, by the help of the substantive significative of the subject-matter, together with the pause and the confusion, constituted a succedaneum, and that a tolerably adequate one.—The Lectures had not been numerous, when, to my no small relief, an influx of company put an end to them.

Before I left Bowood,—Lord Shelburne, after observing to me, “how new the subject was to him, and how ill qualified he was of himself to appreciate a work, in which so much depth of thought had been displayed,” informed me, “that his intention was to submit it to the consideration of men better qualified than himself to comprehend its merits, and derive the profit that was to be derived from it;” and, in this view, Lord Camden and Mr. Dunning were particularized.”

I had not been long in London, on my return from Bowood, when I received a visit from Lord Shelburne. “I will deal plainly with you,” said he: “I told you I should put your book into the hands of Lord Camden and Mr. Dunning. I have done so. Lord Camden acknowledged its merits in the character of a theoretical work; but he confessed he had found some difficulty in comprehending it, and if such is the case with me (said he), I leave you to imagine how it may be with the generality of readers.” Thus far Lord Shelburne. Of Dunning’s opinion I recollect not any particulars: it was but too plainly of the same cast.

Here was a second “scrape:”—another work, by the same man, by whom nothing “could be done for” the head of a party: a work which had nothing to do with “useful things.” Thus incomprehensible was it to the wisest of the wise. It has not been so to babes and sucklings. Two boys of sixteen have been giving a spontaneous reading to it: in the person of a tailor, it has found a spontaneous and unpaid Editor, who, having read it as an amateur, gives himself in this way a second reading of it. It is the basis of that one in French, for which so much use has been found, or at least thought to be found, in other countries.

Of the effects, of that report, on me,—a conception may be formed from the above-mentioned dates. The work would not have come out when it did, in 1789, but for George Wilson.

XIII. One objection remains: and my hypothesis must, if possible, be cleared of it. “Nothing intentionally disagreeable in you did any of these personages see,” says somebody: “this, you may have credit for, without much difficulty. But, in the tout ensemble of a man, there may be disagreeable matter to any amount, without his intending it. Can you be quite sure, that something of this sort may not have had place in your case? for, if yes, then this, and not your reforms and improvements, may have been the thing that set them against you: and if so, your proof fails.”

The answer will, I hope, be a tolerably satisfactory one. In the case of Wedderburne, the person had not been seen: the work was not only the sole object of displeasure, but the declared cause of it.

In the case of Lord Mansfield, the person was never seen in such sort as to be known in conjunction with the name. In the case of the disdainful soldier, not only the contempt, but the cause of it, was declared: declared before any other had any time for coming into existence.

For the two remaining cases, I must take other ground. If, in the eyes of the two great lawyers, or either of them, cause of personal disgust towards the Author had had place, and that in such degree as to extend itself to the work,—let it be judged whether the effect could have failed to be still more sensible on that sex, whose sensibility, in such a case, is naturally so much more acute. True it is, that what, on this or that individual occasion, may have been the sort of sentiment produced in the mind of this or that individual of the one sex, by the person or deportment of this or that one of the other, is not of itself of any great political moment. But whether,—on the part of those who are obeyed and paid, as guardians of the happiness of the species,—there be a conspiracy, and that a standing one, and till the Anglo-American United States afforded one exception, a universal one—a conspiracy against that of which they are the professed guardians—this is no such trifle.

To close the evidence against the conspiracy, I must now call two Ladies. What I have to say is not of a nature to point any sentiment of disrespect towards either of them: and, if it were, they are not in a condition to be much affected by it.

1. Enter, first, Miss Pratt. When upon my fiddle’s overpowering her voice, the part of Hogarth’s enraged musician was played by her noble and learned father, his rage was rendered the less distressing to me by his daughter’s not appearing to be a sharer in it. Not that there was not war between us: not that she was not the aggressor; but, whatever was the cause of the war, it was any thing but that. I remember not whether it was before or after this, that a letter came to me, as from a gentleman, who had been of the company, alluding to offence received from me, and suggesting the propriety of a rencontre. The gentleman was a quiet gentleman, and nothing had passed between us.—It was a forgery: the forger was discovered; it was Miss Pratt. Flagrant was the enormity. The investigation had not been indelicate. Vengeance would have been justice. But mediatrixes surrounded me. Mercy took the place of justice. The father was neither party nor privy. This was the first time of my seeing the lady; it was also the last. More than thirty years had elapsed, when the aunt of the late Marquis of Londonderry, being in company with a friend of mine, took notice of the pleasant days she had that year passed at Bowood. The adversary she had made to herself was not unremembered.

At this time, or some subsequent one, I received in the bosom of the same family, a general invitation from her now noble brother, the present Marquis. Sensibility to the kindness was not wanting. But he had not been witness to any thing of what had fallen on me from his father: without business or special invitation, I never went anywhere: and a house in which the head is cold, is not a house to visit at. This last piece of evidence is upon my brief; but in a court of justice I should pause before I called the witness. The invitation was of the number of those, which are not quite so likely to be remembered by the giver as by the receiver.

2. Next comes Mrs. Dunning. Her husband, on his arrival at Bowood, found her there, and he left her there. Her stay was considerable—her voice, too, my fiddle had accompanied, as also her piano, on which she was a proficient. No complaint of overloudness there. The aversion, whatever it may be, that had been conceived by the husband—had it been shared in by the wife? About ten or eleven years had elapsed, when an incident occurred, which may be regarded perhaps as affording some proof of the negative.

Lord Ashburton had paid the debt of nature. One day, at Lansdowne House, the master of it took me aside, and in express terms, after an eulogium pronounced on the dowager, gave it me as his opinion, that should my wishes point that way, disappointment was not much to be apprehended. The case was sufficiently intelligible. The Lady’s only son—the present Lord—was a minor, and in tender age. “Your son,” said he, “requires a guardian. Mr Bentham would be a faithful one. Your brothers are engrossed by other cares.” No such conversation had indeed been mentioned to me; but circumstances sufficiently spoke it. My surprise was considerable: gratitude not inferior. But the offer was of the sort of those which may be received in any numbers, while at most only one at a time can be profited by. I have mentioned brothers. The founder of the Baring dynasty was one of them. He and I were good friends.

Much of all this is but too little to the purpose. But what is to the purpose is—that, in a family, in which whatever is best in aristocratical manners was at the highest pitch of refinement, whatever aversion was entertained by the great Law Lords was peculiar to the confederacy, and was not shared in by those who, had any ordinary cause of disgust had place, would naturally have been most sensible to it.

XIV. A tolerably satisfactory solution (the reader may now perhaps think) has been given, for the tardiness of the advances made by Lord Shelburne to the Author of the Fragment, coupled and contrasted with the cordiality of them, when made. On this hypothesis, the cognizance he took of it was not less early than that taken of it by the lawyer tribe, including his above-mentioned learned advisers. His disposition towards the Author was thereupon of the kind afterwards manifested. Meantime they, seeing to what it led, and looking upon their influence on him as endangered by it, concurred in the endeavour to prevent his making any such advances. At length, came some incident or reflection, the effect of which was—his breaking loose from their trammels. When at last the young intruder made his appearance in the circle,—thereupon, with or without concert, came the practice of doing what the nature of the case admitted of, towards keeping down his influence, and preserving their own views on political subjects from being supplanted—supplanted by other views so opposite as they saw his to be.

In itself nothing can be more unimportant than the little intrigue was, if there was one: no one can be more fully sensible to its unimportance, than he is, who, if there was one, was the subject of it. But, in regard to the State and form of Government in this country, what it proves, so far as it proves any thing, is of no mean importance. It is—that, under the Government under which we live, the particular interest of the rulers is in direct opposition to almost every thing that is good;—to all reform, to all considerable melioration, even to the stopping of the career of abuse in any line; and thence, on almost all points, to the universal interest: and that, as it can never fail to be in their inclination, so is it at all times in their power to make sacrifice—continual and all-comprehensive sacrifice—of that same universal interest, to that same particular and sinister interest.

Under such a form of Government, the ruler, in all his shapes, deriving an advantage, immediate or unimmediate, from every thing by which the universal interest receives injury;—feeling that sinister interest assaulted, by almost every thing, by which service in any shape is rendered to the universal interest;—beholds an adversary, not to say an enemy, in every man by whom any such service is endeavoured to be rendered.

As to the Lawyer,—to the sinister interest which is common to him, with all others, by whom, in a government so constituted, the powers of government are exercised,—this man adds another sinister interest, peculiar to his own tribe: an interest, in that system, by which, while not so much as a chance for justice is allowed to any but a comparatively few, even those few are kept in a state of oppression: oppressed, by factitious delay, vexation, and expense, created by lawyers, in the situation of judges and legislators, for the sake of the profit extracted by the fraternity out of the expense.

The consequence is a confederacy—a perpetual and indissoluble confederacy—among the ruling few of all classes, to defend themselves and one another, against all such endeavours, as, by service rendered to the universal interest, act thereby in necessary opposition to that particular and sinister interest. Of this confederacy, whatsoever be the state of parties, the ruling men of all parties are members: members, linked together against the universal interest, by that particular and sinister interest, in which they are all of them partakers: for, whatsoever may be the hostility of the two sinister interests to one another, the hostility of both to the only right and proper interest is much more extensive and unchangeable. On any of the points, on which that system of corruption, depredation, and oppression, in which they have a common interest, rests, let any serious attack be made,—mutual hostility vanishes, and alliance against the common adversary takes the place of it.

XV. Only one piece of evidence more. It is however a sweeping one.

Among my friends was and is one, who, during the period in question, to a judgment fully competent, added materials not less adequate, to the forming the most correct conception, respecting the state of the affections in certain of the personages above mentioned, with relation to those whose interest in this as in all countries composes the universal interest. I asked him once, and begged of him to consider, whether, on the part of them, or any of them, on any occasion whatsoever, it had ever happened to him to observe any symptoms of real regard for the universal interest: in a word, whether, according to the best observation he could make, any object, beyond the field of the general scramble for power, ever found a place in their affections. Those on the Tory side—Wedderburne and Lord Mansfield—were out of the question.—Lord Camden, Dunning, and Barré, were particularly mentioned. His answer was clear, deliberate, and decisive:—it was in the negative.

XVI. A natural enough object of curiosity will be the sort of sensation, produced by the little work, in the mind of the learned Author, whose great work is the subject of it. Some small satisfaction, on this point likewise, it happens to be in my power to afford. It had not long been out, when, from one quarter or another, the intelligence was brought to me. The question had been asked him—I never knew from whom—for in telling such tales out of school great caution was in every instance observed: be this as it may, a question had been asked him—whether he knew who the Author was? “No,” was the answer; “not his name: all I know of him is where he comes from:—he is a Scotchman.” The conjecture had much better grounds than those others that have been mentioned. The Scotch minds were less ill-suited than the English to the sort of business he saw done. The Scotch law having for its foundation the Roman,—the range of thought, in the field of law, is necessarily much less narrow, among Scotch than among English lawyers. By the arguments in the Fragment, their sinister interests, their interest-begotten prejudices, their reputation, are not so directly struck at, as those of their southern brethren. As to fiction, in particular, compared with the work done by it in English law, the use made of it in theirs is next to nothing. No need have they had of any such clumsy instruments. They have two others, and of their own making, by which things of the same sort have been done with much less trouble. Nobile officium gives them the creative power of legislation: this, and the word desuetude together, the annihilative. Having less need of insincerity than the English,—language has with them been less impudently insincere. When the English said James the Second had abdicated his throne,—the contrary being true in the eyes of every body,—the Scotch said he had forfeited it. So much as to intrinsic evidence.

Now as to extrinsic. By the sort of notices taken of the Fragment by Lord Mansfield, as above, a suspicion might naturally enough be produced in the mind of the harassed Puisne, that the adversary was a sort of sad dog, of the Scotch breed, set upon him by the overbearing Chief.

A question somebody else put to the Author of the Commentaries was—whether it was his intention to make any answer to the critique? “No,” was the reply: “not even if it had been better written.” But, though he made not any answer to it, nor any express mention of it by its name, he did not altogether refrain from noticing it. In the preface to the then next edition of his work, (and, I take for granted, to all the subsequent ones) there are allusions to it. Intimation is given, that the work would be the better, instead of the worse, for the attack thus made on it. So far as regarded the currency of his work,—if ever I entertained expectations of seeing it lessened, as for aught I know I did, they were pretty effectually disappointed. What, at that time, I had not sufficiently perceived was—that, for the sort of work that his is, the demand was in its nature boundless: for the sort of work that mine was, the demand is bounded by very narrow limits. What the law is, or is likely to be taken to be,—every man, if it were possible, and not too much trouble to him, would know. What the law ought to be, is as yet of the number of those things, about which few indeed,—on any points, except such few and comparatively narrow ones, in which it has happened to a man to take some particular interest,—either know any thing or care.

We never met: two years, however, had not elapsed, before we were on better terms. The Penitentiary System had for its first patrons Mr. Eden (the Mr. Eden above spoken of) and Sir William Blackstone. They framed in conjunction—and without exposure to sale, circulated—the draught of a Bill for that purpose. A copy (I do not remember how) found its way into my hands. Some friend of mine (I think) gave it me, without saying how he had come by it. It gave rise on my part to my second work, entitled, A View of the Hard Labour Bill, written and published in 1778. A copy of it, communicated, as far as I remember, in the same way, went to Mr. Eden, and another to Mr. Justice Blackstone. In the mode of communication, I followed the example that had been set me. The tone of this second comment, though free, and holding up to view numerous imperfections, was upon the whole laudatory: for my delight at seeing symptoms of ever so little a disposition to improvement, where none at all was to be expected, was sincere, and warmly expressed. From Mr. Eden, the communication produced an answer of some length; cold, formal, distant, and guarded; written, as a man writes, when he feels what he is not willing to acknowledge: no desire expressed of any verbal communication. He was then on the eve of his departure for the now United States, with Governor Johnstone, and I forget who else, with proper chains in their hands:—chains which the refractory Americans were to be invited to put upon their necks. Between twenty and thirty years after, the earliest of the works edited by M. Dumont having come out, I had the pleasure of numbering a nephew of his Lordship’s, Sir Frederick Eden, among my declared disciples, and not many years ago the pain of losing in him a highly valued friend.

From the Judge I received a note, which still exists, I believe, somewhere: of every thing that is material in the terms of it, I have preserved the memory. After thanks, and so forth, in the third person,—“some of the observations,” said he, “he believed had already occurred to the framers of the Bill” (not mentioning himself as one of them), “and many others were well deserving of their attention.” To any reader of this work, if any such there be by whom that other of mine has been perused, the frigid caution with which the acknowledgment is thus guarded—the frigid caution so characteristic of the person as well as the situation, will not have been unexpected.

That the Fragment was not unknown to either of them, may readily be imagined: if so, to no man who has read it, will there be any thing wonderful in their reserve.

To all this correspondence, George Wilson was of course privy; “Bentham,” said he to me one day, “don’t you feel now and then some compunction, at the thought of the treatment your Fragment gives to Blackstone? Of all the men that ever sat on a Westminster Hall Bench, he is perhaps the only one that ever attempted any thing that had the good of the people, or the improvement of the law, for its object, independently of professional interest and party politics: think of the treatment he has received from you.” I did think of it:—and, had any good come from it in this instance, the more I had thought of it, with the greater satisfaction should I have thought of it. Little did I think—little, I am persuaded, did even he think—that, after the improvements made afterwards in the system—and by the universal opinion of that time they were no slight ones—it would have terminated in an hermetically-sealed Bastile, in which, at an expense to the public of £1000 a-head for lodging alone, no more than six hundred will be provided for when the number is completed, instead of two thousand at no more than £15 a-head; annual expense between £30 and £40 a-year per head, instead of £12, which, upon the death of the first contractor, would have ceased. Such at least has been the computation made by an intelligent and honest hand.

Be this as it may, was it for the Author of the Fragment to see cause of compunction in the effect thus produced in the case of Blackstone? No: unless it be for Bell and Lancaster to feel compunction for whatever good has been done by “Excellent Church” and her associates, towards the instruction of the people. In what instance, by any supporters of “Matchless Constitution,” has this or any thing else been done, with any the least tinge of good in it, but with the feelings with which ancient Pistol ate the leek, and the hope of defeating or obstructing something better?

XVIII. “Such being the tendency, such even the effects of the work, what became of it? how happened it, that, till now, not so much as a second edition had been made of it?” Questions natural enough; and satisfaction, such as can be, shall accordingly be given: words as few as possible.

Advertisements, none. Bookseller did not, Author could not, afford any. Ireland pirated. Concealment had been the plan:—how advantageous, has been already visible. Promise of secresy had accordingly been exacted: parental weakness broke it. No longer a great man, the Author was now a nobody. In catalogues, the name of Lind has been seen given to him. On the part of the men of politics, and in particular the men of law on all sides, whether endeavour was wanting to suppression, may be imagined.

*∗* Attached to my copy of the work, I see a newspaper attack and defence of it. The bookseller desires it: he shall have it. The assailant was never known to me: defender, John Lind: his intention not known to me till executed.

THREE LETTERS ON THE FRAGMENT ON GOVERNMEN

(From the Morning Chronicle of the 6th, 10th, and 26th July, 1776.)

LETTER THE FIRST.

Of an Examination into the merits of a Critique onBlackstone’s Commentaries,lately published under the Title ofa Fragment on Government.

This Book being favourably spoke of by a gentleman whose good sense is generally admired, I was induced, at an expense of 3s. 6d. to purchase it. It did not appear to have been ushered into the world in the usual mode of advertising, for on inquiry after it at several booksellers, they knew nothing of its being published; probably the Author, whoever he is, had reasons for introducing it as privately as possible. The mode is peculiar, and so indeed appears the work itself.

Not to allow the Author to be a man of education, and perhaps great reading, would be offending common sense: his quotations amply prove that he possesses both; and his ingenious play upon words, in those passages chosen from Blackstone, where he delights in ringing the changes on their meaning with more glee than ever ringer tuned the sonorous bell, seems to tell us that he is not altogether deficient in logical learning and abstracted reasoning. To what end, however, has he wrote, read, transcribed, studied, reasoned, or pondered, was a consequential question with me, after I had perused all he had thrown together in the preface (which he calls a Critique on Blackstone at large) and afterwards in his introduction with five chapters—one, On the formation of government; 2d, On forms of government; 3d, On the British constitution; 4thly, On the right of the supreme power to make laws; and 5thly, On the duty of such power to make laws. But after this disquisition, I found nothing further gratifying than that this Fragment on Government, instead of being either the gleanings from other writings on subjects under that name, or an illustration of what they might doubtfully contain, was neither more nor less than a warm attack on a few pages from Blackstone’s Introduction to his Commentaries, which the Fragment Author confesses to be much offended at, and therefore he conceived the design of pointing out some of the capital blemishes in that work, or rather, as he terms it, of laying open and exposing the universal inaccuracy, which seemed to him to pervade the whole.

There is something promising in this language! It is bold, significant, and peremptory. It argues conscious and superlative wisdom in the author, and invites his reader to proceed; for who that has read Blackstone, and admired him even for those merits which the Fragment attributes to him, but would willingly have the sun of wisdom shine upon them, and be undeceived in such their admiration of a work “promising a general vein of obscure and crooked reasoning, from whence no sterling knowledge could be derived.” But when we seriously consider its import, what is it? what is the kind of man that writes and reasons? and what is the effect of both? I answer—either to create a disgust in weak minds for Blackstone’s Commentaries, without a material cause, or with men of experience and of better judgment to show the writer’s literary talents, metaphysically and logically exerted; for though, as he confesses that his logomachy has been beyond description laborious and irksome, yet it at last amounts to no more than “a tedious and intricate war of words,” put together in very harsh order, by a conceited writer, who seems envious of Blackstone’s fame, and desirous of trimming his laurel, by putting himself, if not above, at least in competition with him. Had he submitted his syllogisms with a small share of humility, and avoided that positive preceptive manner which runs through his whole book, we must have been pleased with it as a specimen of his abilities; but his sentiments on the Introduction to the Commentaries, in their present clothing, I fear will make but few converts to his way of thinking, and (if any) they will be among the meanest of his readers.

D.

LETTER THE SECOND.

Of an Examination into the merits of a Critique onBlackstone’s Commentaries,lately published under the Title ofA Fragment on Government.

Sir,

From the reception which I find my former letter has met with among my friends in the circle of the law, there is no necessity for my making the smallest apology to your readers for the intrusion of the present. I doubt not, if the author of the Fragment gives himself the trouble to read me under the above-mentioned head, but he will feel the force of what I advance, with a self-conviction that he has principally wrote in vain. The sale of his book (however extensive) will be no criterion whereby to determine this, because curiosity may lead his readers to contribute for his emolument, beyond the charge of paper and print, not advertising, for little expense on that account appears to have attended this his publication. If, however, he wrote for fame only, pecuniary profit was not his pursuit, and he may disregard the limited number his bookseller sells of this book for him, provided he succeeds in tickling his readers’ ears, so as to bring reproach and reprehension on the Commentaries; to do which he has spared no trouble. Labour appears in the produce of almost every line he has wrote, and as he has palpably bewildered himself, it follows with men of superior judgment that he has laboured in vain; that is to say, though he has ingeniously flourished his reasoning on what he calls the obscurity, or absurdity of Blackstone’s description of society and its consequences, yet, as I have already said, it amounts to nothing!

He tells us, that the passage in Blackstone’s Introduction, proposed by him for examination, occupies seven pages, from the 47th to the 53d inclusive. To defeat the validity of which, he has filled no less than 56 pages in his Fragment. In general they are sensible, and he has said a great deal to convince us, or rather with intent to convince, which is widely different, that Blackstone was a perfect blockhead in all he wrote in those self-same seven pages, and knew not what he was about when he talked of society, state of nature, and original contract, and that he has confused the definition of the one with the other, in contradiction sometimes to his own ideas of either.

With respect to society, the Fragment argues truly, and it gives us perhaps a good notion of what results from it. But does it say more than Blackstone, or not? Certainly yes—or the author must have been an extraordinary writer indeed, if in fifty-six pages he had not put together a little more than Blackstone has done in seven. But after all, has he said more in effect? Certainly not! for having discussed, according to his (confessed) ingenious (though peculiar) mode, the import of society, sometimes in opposition to Blackstone, sometimes nearly with him, what does he proceed to say? Why, that “It may be, he has misunderstood his meaning.” The context is then spun out for several pages, to prove to us that the darkness of the whole paragraph from Blackstone is rendered so, more from himself, than any real construction which a reader of it, less contemplative, nice, or exceptious, could possibly put upon it. The consequence therefore is, that the Fragment, in this particular, says a great deal, meaning much logical and ambi-dextrous sense to little purpose.

Soon after it has said, “It may be possible that its author has misunderstood Blackstone,” it makes him confess the paragraph spoken of from that gentleman, to be a riddle which he cannot solve. Why then say so much about it? why traduce from its merit, or attempt to perplex the truth of it? The answer is plain: to show the author’s integrity, and derogate, if possible, from the defects of the universally admired Commentaries.

The author of the Fragment having now tired himself in his journey after truth, on the word Society, for no other purpose than to tell us this riddle of his own is unsolveable; he then assures us from himself only, that “it were of use it should be seen to be so, that peace may be restored to the desponding student, who, prepossessed with the hopes of a rich harvest of instruction, makes a crime to himself of his inability to reap, what in truth Blackstone never sowed.”

Fine writing indeed! and if every student sits down to Blackstone in that way of thinking, which is next to impossible, he will read with prejudice, and poison will attend on every line he reads.—The purpose of these letters is to anticipate such reading, which I have no doubt will succeed.

D.

LETTER THE THIRD.

By John Lind, Esq. afterwards Barrister at Law, to D., Author of two Letters*on A Fragment on Government.

Sir, Though it be your opinion, that “the Fragment says a great deal to little purpose,”† and though it be my opinion that with respect to yourself this is very true; yet I cannot bring myself to participate in the regret you seem to feel at having expended three shillings and sixpence in the purchase of this—to you unimproving—performance. What advantage has not the world derived from this petty expense? Two such letters as yours are surely impayable.

We have indeed your own word for the excellency of your first letter, as well as for the candour and discernment of “your friends in the circle of the law.” So favourably, you assure us, did they receive this first letter, that “not the smallest apology” was necessary for the second. I have not the honour, I fear, of being included in the circle of your friends, but if my word be of any weight, you may be assured, Sir, that the second is equal to the first: no apology then will be necessary for a third.

But leaving you to improve as little as you please by the perusal of the Fragment, and your friends in the circle of the law, or in any other circle, to improve as much as they can by the perusal of your letters; I will only beg leave to examine what are the objections which you make to the Fragment. The first relates to the manner of introducing the work to the knowledge of the public. It was done, it seems, too privately, nay even irregularly. It was not advertised so often as it should have been.

At the court of Apollo, as well as at other courts, there are, it seems, certain gentlemen ushers, certain masters of the ceremonies, or, to give them a denomination more expressive of their function, certain flappers, without whose friendly help it is a mark of impertinence in a writer to offer his work, and ill-breeding in a reader to receive it.

Whether such be the custom with gentlemen-ushers, or with flappers, at the court of Laputa, or any other court, I know not; having never descended so low, as to quit my garret for a court. But such (I know it to my cost) is the custom with the flappers in the literary world: these inserters of advertisements, they must be paid. And hence you insinuate, that the author was led by motives of avarice to spare this expense.

I love to clear things as I go. To this objection, then, I shall confine myself in this present letter; and it is, without doubt, an objection of the first magnitude. I appeal to the proprietors of the public papers, and to the receivers at the stamp-office. Were the author a staunch friend to the liberty of the press, he would certainly have thrown more money into the pockets of the former; as certainly, were he a staunch friend to Government, he would have thrown more money into the caisse of the latter. I have, however, my fears that the book will make its way, notwithstanding the shameful negligence of the author in this particular. Should this be the case, what is to be done?

Consult your friends in the circle of the law. It is possible there may be found among them some of that race, whom this Fragment-writer (as you elegantly call him) has treated so cavalierly in the 18th and 19th pages of his preface. Cannot they convert what you call “a peculiar,” into a clandestine mode of ushering the work into the world? Cannot they prove that the doing “it privately,” was in effect adding to the publicity—just as you have proved, that by saying a great deal more, he has in effect said no more than another had said before him? You have discovered that the author “had reasons for introducing his work privately:” meaning all the while, for making it as public as possible: your friends have but one step farther to make: they have only to assign these reasons—a malicious intention of defrauding his Majesty of his revenues, and the printers of the papers of their dues, &c. This is no bad ground for a special pleader to go to work upon.

You see, Sir, I defend no man when he is in the wrong. Amicus Socrates, Amicus Plato, sed magis amica veritas. The objection I have now considered is peculiarly your own. I do not believe any two men in England could have hit upon it; and here, you see, I give up my author to you entirely.

My candour on this occasion will, I hope, entitle me to the favour of your attention, when I come to consider two other objections which are not so peculiarly your own.

A. B.

P. S. I should have done myself the honour of writing to you much sooner, had I not waited for what the printer seemed to promise, “A continuation of your very instructive letters.”*

INTRODUCTION.*

I. The subject of this examination is a passage contained in that part of Sir W. Blackstone’s Commentaries on the Laws of England, which the Author has styled the Introduction. This Introduction of his stands divided into four Sections. The first contains his discourse “On theStudyof theLaw.” The second, entitled “Of theNatureofLawsin general,” contains his speculations concerning the various objects, real or imaginary, that are in use to be mentioned under the common name of Law. The third, entitled “Of theLawsofEngland,” contains such general observations, relative to these last-mentioned Laws, as seemed proper to be premised before he entered into the details of any parts of them in particular. In the fourth, entitled, “Of theCountriessubject to theLawsofEngland,” is given a statement of the different territorial extents of different branches of those Laws.

II. ’Tis in the second of these Sections, that we shall find the passage proposed for examination. It occupies in the edition I happen to have before me (1768), which is the first (and all the editions, I believe, are paged alike), the space of seven pages; from the 47th to the 53d, inclusive.

III. After treating of “Lawin general,” of the “Law of Nature,” “Law of Revelation,” and Law of Nations,” branches of that imaginary whole, our Author comes at length to what he calls “LawMunicipal:” that sort of Law to which men in their ordinary discourse would give the name of Law without addition; the only sort, perhaps, of them all (unless it be that of Revelation) to which the name can, with strict propriety, be applied: in a word, that sort which we see made in each nation, to express the will of that body in it which governs. On this subject of LawMunicipal he sets out, as a man ought, with a definition of the phrase itself; an important and fundamental phrase, which stood highly in need of a definition, and never so much as since our Author has defined it.

IV. This definition is ushered in with no small display of accuracy. First, it is given entire: it is then taken to pieces, clause by clause; and every clause, by itself, justified and explained. In the very midst of these explanations—in the very midst of the definition—he makes a sudden stand. And now it bethinks him that it is a good time to give a dissertation, or rather a bundle of dissertations, upon various subjects: On the manner in which Governments were established—On the different forms they assume when they are established—On the peculiar excellence of that form which is established in this country—On the right which, he thinks it necessary to tell us, the Government in every country has, of making Laws—On the duty of making Laws, which, he says, is also incumbent on the Government.—In stating these two last heads, I give, as near as possible, his own words; thinking it premature to engage in discussions, and not daring to decide without discussion, on the sense.

V. The digression we are about to examine is, as it happens, not at all involved with the body of the work from which it starts. No mutual references or allusions: no supports or illustrations communicated or received. It may be considered as one small work inserted into a large one; the containing and the contained, having scarce any other connexion than what the operations of the press have given them. It is this disconnexion that will enable us the better to bestow on the latter a separate examination, without breaking in upon any thread of reasoning, or any principle of order.

VI. A general statement of the topics touched upon in the digression we are about to examine, has been given above. It will be found, I trust, a faithful one. It will not be thought, however, much of a piece, perhaps, with the following, which our Author himself has given us: “This,” says he,* meaning an explanation he had been giving of a part of the definition above spoken of, “will naturally lead us into a short inquiry into the nature of society and civil government:[a] and the natural inherent right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing Laws.”

VII. No very explicit mention here, we may observe, of the manner in which Governments have been established, or of the different forms they assume when established; no very explicit intimation that these were among the topics to be discussed. None at all of the duty of Government to make Laws: none at all of the British Constitution; though, of the four other topics we have mentioned, there is no one on which he has been nearly so copious as on this last. The right of Government to make Laws, that delicate and invidious topic, as we shall find it when explained, is that which, for the moment, seems to have swallowed up almost the whole of his attention.

VIII. Be this as it may, the contents of the dissertation before us, taken as I have stated them, will furnish us with the matter of five chapters:—one, which I shall entitle “FormationofGovernment;”—a second, “FormsofGovernment;”—a third, “British Constitution;”—a fourth, “Rightof theSupreme Powerto makeLaws;”—a fifth, “Dutyof theSupreme Powerto makeLaws.”

CHAPTER I.

FORMATION OF GOVERNMENT.

I. The first object which our Author seems to have proposed to himself in the dissertation we are about to examine, is to give us an idea of the manner in which Governments were formed. This occupies the first paragraph, together with part of the second: for the typographical division does not seem to quadrate very exactly with the intellectual. As the examination of this passage will unavoidably turn in great measure upon the words, it will be proper the reader should have it under his eye.

II. “The only true and natural foundations of society,” says our Author,† “are the wants and the fears of individuals. Not that we can believe, with some theoretical writers, that there ever was a time when there was no such a thing as society; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest man present to be their governor. This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted; and besides, it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation two thousand years afterwards; both which were effected by the means of single families. These formed the first society, among themselves; which every day extended its limits, and when it grew too large to subsist with convenience in that pastoral state, wherein the Patriarchs appear to have lived, it necessarily subdivided itself by various migrations into more. Afterwards, as agriculture increased, which employs and can maintain a much greater number of hands, migrations became less frequent; and various tribes, which had formerly separated, reunited again; sometimes by compulsion and conquest, sometimes by accident, and sometimes perhaps by compact. But though society had not its formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the sense of their weakness and imperfection that keeps mankind together; that demonstrates the necessity of this union; and that therefore is the solid and natural foundation, as well as the cement, of society: And this is what we mean by the original contract of society: which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied, in the very act of associating together: namely, that the whole should protect all its parts, and that every part should pay obedience to the will of the whole; or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all, it was impossible that protection could be certainly extended to any.

For when society is once formed, government results of course, as necessary to preserve and to keep that society in order. Unless some superior were constituted, whose commands and decisions all the members are bound to obey, they would still remain as in a state of nature, without any judge upon earth to define their several rights, and redress their several wrongs.”—Thus far our Author.

III. When leading terms are made to chop and change their several significations; sometimes meaning one thing, sometimes another, at the upshot perhaps nothing; and this in the compass of a paragraph; one may judge what will be the complexion of the whole context. This, we shall see, is the case with the chief of those we have been reading: for instance, with the words “society,”—“state of nature,”—“original contract,”—not to tire the reader with any more. “Society,” in one place, means the same thing as “a state of nature” does: in another place, it means the same as “Government.” Here, we are required to believe there never was such a state as a state of nature; there, we are given to understand there has been. In like manner, with respect to an original contract, we are given to understand that such a thing never existed; that the notion of it is even ridiculous: at the same time that there is no speaking nor stirring without supposing that there was one.

IV. First, Society means a state of nature. For if, by “a state of nature,” a man means any thing, it is the state, I take it, men are in or supposed to be in, before they are under government: the state men quit when they enter into a state of government; and in which, were it not for government, they would remain. But by the word “society” it is plain at one time that he means that state. First, according to him, comes society; then afterwards comes government. “For when society,” says our Author, “is once formed, government results of course; as necessary to preserve and keep that society in order.”* And again, immediately afterwards,—“A state in which a superior has been constituted, whose commands and decisions all the members are bound to obey,” he puts as an explanation (nor is it an inapt one) of a state of “government:” and “unless” men were in a state of that description, they would still “remain,” he says, “as in a state of nature.” By society, therefore, he means, once more, the same as by a “state of nature:” he opposes it to government. And he speaks of it as a state which, in this sense, has actually existed.

V. Secondly, This is what he tells us in the beginning of the second of the two paragraphs: but all the time the first paragraph lasted, society meant the same as government. In shifting, then, from one paragraph to another, it has changed its nature. ’Tis “the foundations of society,”† that he first began to speak of; and immediately he goes on to explain to us, after his manner of explaining, the foundations of government. ’Tis of a “formal beginning” of “society,”‡ that he speaks soon after; and by this formal beginning, he tells us immediately, that he means, “the original contract of society,”‡ which contract entered into, “a state,”∥ he gives us to understand, is thereby “instituted,” and men have undertaken to “submit to Laws.”§ So long, then, as this first paragraph lasts, “society,” I think, it is plain, cannot but have been meaning the same as “government.”

VI. Thirdly, All this while, too, this same “state of nature” to which we have seen “society” (a state spoken of as existing) put synonymous, and in which, were it not for government, men, he informs us, in the next page, would “remain,”§ is a state in which they never were. So he expressly tells us. This “notion,” says he, “of an actually existing unconnected state of nature,” (that is, as he explains himself afterwards,§ “a state in which men have no judge to define their rights, and redress their wrongs), is too wild to be seriously admitted.”‡ When he admits it, then, himself, as he does in his next page, we are to understand, it seems, that he is bantering us: and that the next paragraph is (what one should not otherwise have taken it for) a piece of pleasantry.

VII. Fourthly, The original contract is a thing, we are to understand, that never had existence: perhaps not in any state: certainly, therefore, not in all. “Perhaps, in no instance,” says our Author, “has it ever been formally expressed at the first institution of a state.”¶

VIII. Fifthly, Notwithstanding all this, we must suppose, it seems, that it had in every state: “yet in nature and reason,” says our Author, “it must always be understood and implied.”¶ Growing bolder in the compass of four or five pages, where he is speaking of our own Government, he asserts roundly,** that such a contract was actually made at the first formation of it. “The legislature would be changed,” he says, “from that which wasoriginally set up by the general consent and fundamental act of the society.”

IX. Let us try whether it be not possible for something to be done towards drawing the import of these terms out of the mist in which our Author has involved them. The word “Society,” I think, it appears, is used by him, and that without notice, in two senses that are opposite. In the one, society, or a state of society, is put synonymous to a state of nature; and stands opposed to government, or a state of government: in this sense it may be styled, as it commonly is, naturalsociety. In the other, it is put synonymous to government, or a state of government; and stands opposed to a state of nature: in this sense it may be styled, as it commonly is, politicalsociety. Of the difference between these two states, a tolerably distinct idea, I take it, may be given in a word or two.

X. The idea of a natural society is a negative one: the idea of a political society is a positive one. ’Tis with the latter, therefore, we should begin.

When a number of persons (whom we may style subjects) are supposed to be in the habit of paying obedience to a person, or an assemblage of persons, of a known and certain description (whom we may call governor or governors) such persons altogether (subjects and governors) are said to be in a state of politicalsociety.*

XI. The idea of a state of naturalsociety is, as we have said, a negative one. When a number of persons are supposed to be in the habit of conversing with each other, at the same time that they are not in any such habit as mentioned above, they are said to be in a state of naturalsociety.

XII. If we reflect a little, we shall perceive, that, between these two states, there is not that explicit separation which these names, and these definitions, might teach one, at first sight, to expect. It is with them as with light and darkness: however distinct the ideas may be, that are, at first mention, suggested by those names, the things themselves have no determinate bound to separate them. The circumstance that has been spoken of as constituting the difference between these two states, is the presence or absence of an habit of obedience. This habit, accordingly, has been spoken of simply as present (that is, as being perfectly present) or, in other words, we have spoken as if there were a perfect habit of obedience, in the one case: it has been spoken of simply as absent (that is, as being perfectly absent) or, in other words, we have spoken as if there were no habit of obedience at all, in the other. But neither of these manners of speaking, perhaps, is strictly just. Few, in fact, if any, are the instances of this habit being perfectly absent; certainly none at all, of its being perfectly present. Governments, accordingly, in proportion as the habit of obedience is more perfect, recede from; in proportion as it is less perfect, approach to, a state of nature: and instances may present themselves, in which it shall be difficult to say whether a habit, perfect, in the degree in which, to constitute a government, it is deemed necessary it should be perfect, does subsist or not.[b]

XIII. On these considerations, the supposition of a perfect state of nature, or, as it may be termed, a state of society perfectly natural, may, perhaps, be justly pronounced what our Author for the moment seemed to think it, an extravagant supposition: but then, that of a government in this sense perfect, or, as it may be termed, a state of society perfectly political, a state of perfect political union, a state of perfect submission in the subject, of perfect authority in the governor, is no less so.[c]

XIV. A remark there is, which, for the more thoroughly clearing up of our notions on this subject, it may be proper here to make. To some ears, the phrases, “state of nature,” “state of political society,” may carry the appearance of being absolute in their signification: as if the condition of a man, or a company of men, in one of these states, or in the other, were a matter that depended altogether upon themselves. But this is not the case. To the expression, “state of nature,” no more than to the expression, “state of political society, ”can any precise meaning be annexed, without reference to a party different from that one who is spoken of as being in the state in question. This will readily be perceived. The difference between the two states lies, as we have observed, in the habit of obedience. With respect, then, to a habit of obedience, it can neither be understood as subsisting, in any person, nor as not subsisting, but with reference to some other person. For one party to obey, there must be another party that is obeyed. But this party who is obeyed, may at different times be different. Hence may one and the same party be conceived to obey and not to obey at the same time, so as it be with respect to different persons, or, as we may say, to different objects of obedience. Hence it is, then, that one and the same party may be said to be in a state of nature, and not to be in a state of nature, and that at one and the same time, according as it is this or that party that is taken for the other object of comparison. The case is, that in common speech, when no particular object of comparison is specified, all persons in general are intended: so that when a number of persons are said simply to be in a state of nature, what is understood is, that they are so as well with reference to one another, as to all the world.

XV. In the same manner we may understand, how the same man, who is governor with respect to one man or set of men, may be subject with respect to another: how among governors some may be in a perfect state of nature with respect to each other; as the Kings of France and Spain: others, again, in a state of perfect subjection; as the Hospodars of Wallachia and Moldavia with respect to the Grand Signior: others, again, in a state of manifest but imperfect subjection; as the German States with respect to the Emperor: others, again, in such a state in which it may be difficult to determine whether they are in a state of imperfect subjection or in a perfect state of nature; as the King of Naples with respect to the Pope.[d]

XVI. In the same manner, also, it may be conceived, without entering into details, how any single person, born, as all persons are born, into a perfect subjection to his parents,* that is, into a state of perfect political society with respect to his parents, may from thence pass into a perfect state of nature; and from thence successively into any number of different states of political society, more or less perfect, by passing into different societies.

XVII. In the same manner, also, it may be conceived how, in any political society, the same man may, with respect to the same individuals, be, at different periods, and on different occasions, alternately in the state of governor and subject: to-day concurring, perhaps active, in the business of issuing a general command for the observance of the whole society, amongst the rest of another man in quality of Judge: to-morrow, punished, perhaps, by a particular command of that same Judge, for not obeying the general command which he himself (I mean the person acting in character of governor) had issued. I need scarce remind the reader how happily this alternate state of authority and submission is exemplified among ourselves.

XVIII. Here might be a place to state the different shares which different persons may have in the issuing the same command: to explain the nature of corporate action: to enumerate and distinguish half-a-dozen or more different modes in which subordination between the same parties may subsist: to distinguish and explain the different senses of the words “consent,” “representation,” and others of connected import; consent and representation, those interesting but perplexing words, sources of so much debate, and sources or pretexts of so much animosity. But the limits of the present design will by no means admit of such protracted and intricate discussions.

XIX. In the same manner, also, it may be conceived, how the same set of men, considered among themselves, may at one time be in a state of nature; at another time in a state of government. For the habit of obedience, in whatever degree of perfection it be necessary it should subsist in order to constitute a government, may be conceived, it is plain, to suffer interruptions: at different junctures, it may take place and cease.

XX. Instances of this state of things appear not to be unfrequent. The sort of society that has been observed to subsist among the American Indians may afford us one. According to the accounts we have of those people, in most of their tribes, if not in all, the habit we are speaking of appears to be taken up only in time of war: it ceases again in time of peace. The necessity of acting in concert against a common enemy, subjects a whole tribe to the orders of a common Chief. On the return of peace, each warrior resumes his pristine independence.

XXI. One difficulty there is that still sticks by us. It has been started, indeed but not solved. This is to find a note of distinction—a characteristic mark—whereby to distinguish a society in which there is a habit of obedience, and that at the degree of perfection which is necessary to constitute a state of government, from a society in which there is not: a mark, I mean, which shall have a visible determinate commencement; insomuch that the instance of its first appearance shall be distinguishable from the last at which it had not as yet appeared. ’Tis only by the help of such a mark that we can be in a condition to determine, at any given time, whether any given society is in a state of government, or in a state of nature. I can find no such mark, I must confess, any where, unless it be this:—the establishment of names of office: the appearance of a certain man, or set of men, with a certain name, serving to mark them out as objects of obedience; such as King, Sachem, Cacique, Senator, Burgomaster, and the like. This, I think, may serve tolerably well to distinguish a set of men in a state of political union among themselves, from the same set of men not yet in such a state.

XXII. But suppose an incontestible political society, and that a large one, formed; and from that a smaller body to break off: by this breach, the smaller body ceases to be in a state of political union with respect to the larger; and has thereby placed itself, with respect to that larger body, in a state of nature—What means shall we find of ascertaining the precise juncture at which this change took place? What shall be taken for the characteristic mark in this case? The appointment, it may be said, of new governors with new names. But no such appointment, suppose, takes place. The subordinate governors, from whom alone the people at large were in use to receive their commands under the old government, are the same from whom they receive them under the new one. The habit of obedience, which these subordinate governors were in, with respect to that single person, we will say, who was the supreme governor of the whole, is broken off insensibly and by degrees. The old names by which these subordinate governors were characterized, while they were subordinate, are continued, now they are supreme. In this case it seems rather difficult to answer.

XXIII. If an example be required, we may take that of the Dutch provinces with respect to Spain. These provinces were once branches of the Spanish monarchy. They have now, for a long time, been universally spoken of as independent states; independent as well of that of Spain as of every other. They are now in a state of nature with respect to Spain. They were once in a state of political union with respect to Spain: namely, in a state of subjection to a single governor, a King, who was King of Spain. At what precise juncture did the dissolution of this political union take place? At what precise time did these provinces cease to be subject to the King of Spain? This, I doubt, will be rather difficult to agree upon.[e]

XXIV. Suppose the defection to have begun, not by entire provinces, as in the instance just mentioned, but by a handful of fugitives, this augmented by the accession of other fugitives, and so, by degrees, to a body of men too strong to be reduced, the difficulty will be increased still farther. At what precise juncture was it that ancient Rome, or that modern Venice, became an independent state?

XXV. In general, then, At what precise juncture is it, that persons subject to a government, become, by disobedience, with respect to that government, in a state of nature? When is it, in short, that a revolt shall be deemed to have taken place? and when, again, is it, that that revolt shall be deemed to such a degree successful, as to have settled into independence?

XXVI. As it is the obedience of individuals that constitutes a state of submission, so is it their disobedience that must constitute a state of revolt. Is it, then, every act of disobedience that will do as much? The affirmative, certainly, is what can never be maintained: for then would there no such thing as government to be found any where. Here, then, a distinction or two obviously presents itself. Disobedience may be distinguished into conscious, or unconscious; and that with respect as well to the law as to the fact.[f] Disobedience that is unconscious with respect to either, will readily, I suppose, be acknowledged not to be a revolt. Disobedience, again, that is conscious with respect to both, may be distinguished into secret and open; or, in other words, into fraudulent and forcible.[g] Disobedience that is only fraudulent, will likewise, I suppose, be readily acknowledged not to amount to a revolt.

XXVII. The difficulty that will remain, will concern such disobedience only as is both conscious (and that as well with respect to law as fact) and forcible. This disobedience, it should seem, is to be determined neither by numbers altogether (that is, of the persons supposed to be disobedient) nor by acts, nor by intentions: all three may be fit to be taken into consideration. But having brought the difficulty to this point, at this point I must be content to leave it. To proceed any farther in the endeavour to solve it, would be to enter into a discussion of particular local jurisprudence. It would be entering upon the definition of Treason, as distinguished from Murder, Robbery, Riot, and other such crimes, as, in comparison with Treason, are spoken of as being of a more private nature. Suppose the definition of Treason settled, and the commission of an act of Treason is, as far as regards the person committing it, the characteristic mark we are in search of.

XXVIII. These remarks it were easy to extend to a much greater length. Indeed, it is what would be necessary, in order to give them a proper fulness, and method, and precision. But that could not be done without exceeding the limits of the present design. As they are, they may serve as hints to such as shall be disposed to give the subject a more exact and regular examination.

XXIX. From what has been said, however, we may judge what truth there is in our Author’s observation, that “when society” (understand natural society) “is once formed, government” (that is, political society) (whatever quantity or degree of Obedience is necessary to constitute political society) “results of course; as necessary to preserve and to keep that society in order.” By the words, “of course,” is meant, I suppose, constantly and immediately; at least constantly. According to this, political society, in any sense of it, ought long ago to have been established all the world over. Whether this be the case, let any one judge from the instances of the Hottentots, of the Patagonians, and of so many other barbarous tribes, of which we hear from travellers and navigators.

XXX. It may be, after all, we have misunderstood his meaning. We have been supposing him to have been meaning to assert a matter of fact, and to have written, or at least begun, this sentence in the character of an historical observer: whereas, all he meant by it, perhaps, was to speak in the character of a Censor, and, on a case supposed, to express a sentiment of approbation. In short, what he meant, perhaps, to persuade us of, was, not that “government” does actually “result” from natural “society;” but that it were better that it should; to wit, as being necessary to “preserve and keep” men “in that state of order,” in which it is of advantage to them that they should be. Which of the above-mentioned characters he meant to speak in, is a problem I must leave to be determined. The distinction, perhaps, is what never so much as occurred to him; and indeed the shifting insensibly, and without warning, from one of those characters to the other, is a failing that seems inveterate in our Author; and of which we shall probably have more instances than one to notice.

XXXI. To consider the whole paragraph (with its appendage) together, something, it may be seen, our Author struggles to overthrow, and something to establish. But how it is he would overthrow, or what it is he would establish, are questions I must confess myself unable to resolve. “The preservation of mankind,” he observes, “was effected by single families.” This is what, upon the authority of the Holy Scriptures, he assumes; and from this it is that he would have us conclude the notion of an original contract (the same notion which he afterwards adopts) to be ridiculous. The force of this conclusion, I must own, I do not see. Mankind was preserved by single families—Be it so. What is there in this to hinder “individuals” of those families, or of families descended from those families, from meeting together “afterwards in a large plain,” or any where else, “entering into an original contract,” or any other contract, “and choosing the tallest man,” or any other man, “present,” or absent, to be their Governor? The “flat contradiction” our Author finds between this supposed transaction and the “preservation of mankind by single families,” is what I must own myself unable to discover. As to the “actually existing unconnected state of nature” he speaks of, “the notion of which,” he says, “is too wild to be seriously admitted,” whether this be the case with it, is what, as he has given us no notion of it at all, I cannot judge of.

XXXII. Something positive, however, in one place, we seem to have. These “single families” by which the preservation of mankind was effected—these single families, he gives us to understand, “formed the first society.” This is something to proceed upon. A society, then, of one kind or the other—a natural society, or else a political society, was formed. I would here then put a case, and then propose a question. In this society, we will say no contract had as yet been entered into; no habit of obedience as yet formed. Was this, then, a natural society merely, or was it a political one? For my part, according to my notion of the two kinds of society as above explained, I can have no difficulty. It was a merely natural one. But, according to our Author’s notion, which was it? If it was already a political one, what notion would he give us of such an one as shall have been a natural one? and by what change could such precedent natural one have turned into this political one? If this was not a political one, then what sort of a Society are we to understand any one to be which is political? by what mark are we to distinguish it from a natural one? To this, it is plain, our Author has not given any answer; at the same time that to give an answer to it was, if any thing, the professed purpose of the long paragraph before us.

XXXIII. It is time this passage of our Author were dismissed. As among the expressions of it are some of the most striking of those which the vocabulary of the subject furnishes, and these ranged in the most harmonious order, on a distant glance nothing can look fairer: a prettier piece of tinselwork one should seldom see exhibited from the show-glass of political erudition. Step close to it, and the delusion vanishes. It is then seen to consist partly of self-evident observations, and partly of contradictions; partly of what every one knows already, and partly of what no one can understand.

XXXIV. Throughout the whole of it, what distresses me is, not meeting with any positions, such as, thinking them false, I find a difficulty in proving them so: but the not meeting with any positions. true or false, (unless it be here and there a self-evident one), that I can find a meaning for. If I can find nothing positive to accede to, no more can I to contradict. Of this latter kind of work, indeed, there is the less to do for any one else, our Author himself having executed it, as we have seen, so amply.

The whole of it is, I must confess, to me a riddle: more acute by far than I am, must be the Œdipus that can solve it. Happily it is not necessary, on account of any thing that follows, that it should be solved. Nothing is concluded from it. For aught I can find, it has in itself no use, and none is made of it. There it is, and as well might it be any where else, or no where.

XXXV. Were it then possible, there would be no use in its being solved: but being, as I take it, really unsolvable, it were of use it should be seen to be so. Peace may, by this means, be restored to the breast of many a desponding student, who now, prepossessed with the hopes of a rich harvest of instruction, makes a crime to himself of his inability to reap what, in truth, his Author has not sown.

XXXVI. As to the Original Contract, by turns embraced and ridiculed by our Author, a few pages, perhaps, may not be ill bestowed in endeavouring to come to a precise notion about its reality and use. The stress laid on it formerly, and still, perhaps, by some, is such as renders it an object not undeserving of attention. I was in hopes, however, till I observed the notice taken of it by our Author, that this chimera had been effectually demolished by Mr. Hume.[h] I think we hear not so much of it now as formerly. The indestructible prerogatives of mankind have no need to be supported upon the sandy foundation of a fiction.

XXXVII. With respect to this, and other fictions, there was once a time, perhaps, when they had their use. With instruments of this temper, I will not deny but that some political work may have been done, and that useful work, which; under the then circumstances of things, could hardly have been done with any other. But the season of Fiction is now over: insomuch, that what formerly might have been tolerated and countenanced under that name, would, if now attempted to be set on foot, be censured and stigmatized under the harsher appellations of encroachment or imposture. To attempt to introduce any new one, would be now a crime: for which reason there is much danger, without any use, in vaunting and propagating such as have been introduced already. In point of politica discernment, the universal spread of learning has raised mankind in a manner to a level with each other, in comparison of what they have been in any former time: nor is any man now so far elevated above his fellows, as that he should be indulged in the dangerous licence of cheating them for their good.

XXXVIII. As to the fiction now before us, in the character of an argumentum ad hominem, coming when it did, and managed as it was, it succeeded to admiration.

That compacts, by whomsoever entered into, ought to be kept;—that men are bound by compacts, are propositions which men, without knowing or inquiring why, were disposed universally to accede to. The observance of promises they had been accustomed to see pretty constantly enforced. They had been accustomed to see Kings, as well as others, behave themselves as if bound by them. This proposition, then, “that men are bound by compacts;” and this other, “that, if one party performs not his part, the other is released from his,” being propositions which no man disputed, were propositions which no man had any call to prove. In theory they were assumed for axioms: and in practice they were observed as rules.[i] If, on any occasion, it was thought proper to make a show of proving them, it was rather for form’s sake than for any thing else; and that, rather in the way of momento or instruction to acquiescing auditors, than in the way of proof against opponents. On such an occasion, the common-place retinue of phrases was at hand: Justice, Right Reason required it; the Law of Nature commanded it, and so forth: all which are but so many ways of intimating that a man is firmly persuaded of the truth of this or that moral proposition, though he either thinks he need not, or finds he can’t, tell why. Men were too obviously and too generally interested in the observance of these rules, to entertain doubts concerning the force of any arguments they saw employed in their support. It is an old observation, how Interest smooths the road to Faith.

XXXIX. A compact, then, it was said, was made by the King and People: the terms of it were to this effect:—The People, on their part, promised to the King a general obedience: the King, on his part, promised to govern the People in such a particular manner always, as should be subservient to their happiness. I insist not on the words: I undertake only for the sense; as far as an imaginary engagement, so loosely and so variously worded by those who have imagined it, is capable of any decided signification. Assuming, then, as a general rule, that promises, when made, ought to be observed; and, as a point of fact, that a promise to this effect in particular had been made by the party in question, men were more ready to deem themselves qualified to judge when it was such a promise was broken, than to decide directly and avowedly on the delicate question, when it was that a King acted so far in opposition to the happiness of his People, that it were better no longer to obey him.

XL. It is manifest, on a very little consideration, that nothing was gained by this manœuvre after all: no difficulty removed by it. It was still necessary, and that as much as ever, that the question men studied to avoid should be determined, in order to determine the question they thought to substitute in its room. It was still necessary to determine, whether the King in question had, or had not, acted so far in opposition to the happiness of his people, that it were better no longer to obey him; in order to determine, whether the promise he was supposed to have made, had or had not been broken. For what was the supposed purport of this promise? It was no other than what has just been mentioned.

XLI. Let it be said, that part at least of this promise was to govern in subservience to Law: that hereby a more precise rule was laid down for his conduct, by means of this supposal of a promise, than that other loose and general rule to govern in subservience to the happiness of his people: and that, by this means, it is the letter of the Law that forms the tenor of the rule.

Now true it is, that the governing in opposition to Law, is one way of governing in opposition to the happiness of the people: the natural effect of such a contempt of the Law being, if not actually to destroy, at least to threaten with destruction, all those rights and privileges that are founded on it: rights and privileges on the enjoyment of which that happiness depends. But still it is not this that can be safely taken for the entire purport of the promise here in question: and that for several reasons. First, Because the most mischievous, and under certain constitutions the most feasible, method of governing in opposition to the happiness of the people, is, by setting the Law itself in opposition to their happiness. Second, Because it is a case very conceivable, that a King may, to a great degree, impair the happiness of his people without violating the letter of any single Law. Third, Because extraordinary occasions may now and then occur, in which the happiness of the people may be better promoted by acting, for the moment, in opposition to the Law, than in subservience to it. Fourth, Because it is not any single violation of the Law, as such, that can properly be taken for a breach of his part of the contract, so as to be understood to have released the people from the obligation of performing theirs. For, to quit the fiction, and resume the language of plain truth, it is scarce ever any single violation of the Law that, by being submitted to, can produce so much mischief as shall surpass the probable mischief of resisting it. If every single instance whatever of such a violation were to be deemed an entire dissolution of the contract, a man who reflects at all would scarce find any where, I believe, under the sun, that Government which he could allow to subsist for twenty years together. It is plain, therefore, that to pass any sound decision upon the question which the inventors of this fiction substituted instead of the true one, the latter was still necessary to be decided. All they gained by their contrivance was, the convenience of deciding it obliquely, as it were, and by a side wind; that is, in a crude and hasty way, without any direct and steady examination.

XLII. But, after all, for what reason is it, that men ought to keep their promises? The moment any intelligible reason is given, it is this: that it is for the advantage of society they should keep them; and if they do not, that as far as punishment will go, they should be made to keep them. It is for the advantage of the whole number that the promises of each individual should be kept: and, rather than they should not be kept, that such individuals as fail to keep them should be punished. If it be asked, how this appears? the answer is at hand:—Such is the benefit to gain, and mischief to avoid, by keeping them, as much more than compensates the mischief of so much punishment as is requisite to oblige men to it. Whether the dependence of benefit and mischief (that is, of pleasure and pain) upon men’s conduct in this behalf, be as here stated, is a question of fact, to be decided, in the same manner that all other questions of fact are to be decided, by testimony, observation, and experience.[k]

XLIII. This, then, and no other, being the reason why men should be made to keep their promises, viz. that it is for the advantage of society that they should, is a reason that may as well be given at once why Kings, on the one hand, in governing, should in general keep within established Laws, and (to speak universally) abstain from all such measures as tend to the unhappiness of their subjects: and, on the other hand, why subjects should obey Kings as long as they so conduct themselves, and no longer; why they should obey, in short, so long as the probable mischiefs of obedience are less than the probable mischiefs of resistance: why, in a word, taking the whole body together, it is their duty to obey just so long as it is their interest, and no longer. This being the case, what need of saying of the one, that hepromised so to govern; of the other, that they promised so to obey, when the fact is otherwise?

XLIV. True it is, that, in this country, according to ancient forms, some sort of vague promise of good government is made by Kings at the ceremony of their coronation: and let the acclamations, perhaps given, perhaps not given, by chance persons out of the surrounding multitude, be construed into a promise of obedience on the part of the whole multitude: that whole multitude itself a small drop collected together by chance out of the ocean of the state: and let the two promises thus made be deemed to have formed a perfect compact:—not that either of them is declared to be the consideration of the other.*

XLV. Make the most of this concession: one experiment there is, by which every reflecting man may satisfy himself, I think beyond a doubt that it is the consideration of utility, and no other, that, secretly, perhaps, but unavoidably, has governed his judgment upon all these matters. The experiment is easy and decisive. It is but to reverse, in supposition, in the first place, the import of the particular promise thus feigned; in the next place, the effect in point of utility of the observance of promises in general. Suppose the King to promise that he would govern his subjects not according to Law; not in the view to promote their happiness:—would this be binding upon him? Suppose the people to promise they would obey him at all events, let him govern as he will; let him govern to their destruction:—would this be binding upon them? Suppose the constant and universal effect of an observance of promises were to produce mischief, would it then be men’s duty to observe them? would it then be right to make Laws, and apply punishment to oblige men to observe them?

XLVI. “No,” (it may perhaps be replied); “but for this reason: among promises, some there are that, as every one allows, are void: now these you have been supposing, are unquestionably of the number. A promise that is in itself void, cannot, it is true, create any obligation: But allow the promise to be valid, and it is the promise itself that creates the obligation, and nothing else.” The fallacy of this argument it is easy to perceive. For what is it, then, that the promise depends on for its validity? what is it that being present makes its valid? what is it that being wanting makes it void? To acknowledge that any one promise may be void, is to acknowledge that if any other is binding, it is not merely because it is a promise. That circumstance, then, whatever it be, on which the validity of a promise depends; that circumstance, I say, and not the promise itself, must, it is plain, be the cause of the obligation which a promise is apt in general to carry with it.

XLVII. But farther. Allow, for argument’s sake, what we have disproved: allow that the obligation of a promise is independent of every other: allow that a promise is binding propriâ vi: Binding, then, on whom? On him certainly who makes it. Admit this: For what reason is the same individual promise to be binding on those who never made it? The King, fifty years ago, promised my Great-Grandfather to govern him according to Law: my Great-Grandfather, fifty years ago, promised the King to obey him according to Law. The King, just now, promised my neighbour to govern him according to Law: my neighbour, just now, promised the King to obey him according to Law. Be it so: What are these promises, all or any of them, to me? To make answer to this question, some other principle, it is manifest, must be resorted to, than that of the intrinsic obligation of promises upon those who make them.

XLVIII. Now this other principle that still recurs upon us, what other can it be than the principle ofutility?[l] The principle which furnishes us with that reason, which alone depends not upon any higher reason, but which is itself the sole and all-sufficient reason for every point of practice whatsoever.

CHAPTER II.

FORMS OF GOVERNMENT.

I. The contents of the whole digression we are examining, were distributed, we may remember, at the outset of this essay, into five divisions. The first, relative to the manner in which Government in general was formed, has already been examined in the preceding chapter. The next, relative to the different species or forms it may assume, comes now to be considered.

II. The first object that strikes us in this division of our subject is the theological flourish it sets out with. In God may be said, though in a peculiar sense, to be our Author’s strength. In theology he has found a not unfrequent source of ornament to divert us, of authority to overawe us, from sounding into the shallowness of his doctrines.[a]

III. That governors, of some sort or other, we must have, is what he has been showing in the manner we have seen in the last chapter. Now for endowments to qualify them for the exercise of their function. These endowments, then, as if it were to make them show the brighter, and to keep them as much as possible from being soiled by the rough hands of impertinent speculators, he has chosen should be of ethereal texture, and has fetched them from the clouds.

“All mankind,”* he says, “will agree that government should be reposed in such persons in whom those qualities are most likely to be found, the perfection of which are among the attributes of Him who is emphatically styled the Supreme Being: the three great requisites, I mean, of wisdom, of goodness, and of power.”

But let us see the whole passage as it stands—

IV. “But as all the members of Society” (meaning natural Society) “are naturally equal,” (i. e. I suppose with respect to political power, of which none of them as yet have any), “it may be asked,” continues he, “in whose hands are the reins of government to be entrusted? To this the general answer is easy; but the application of it to particular cases has occasioned one half of those mischiefs which are apt to proceed from misguided political zeal. In general, all mankind will agree that government should be reposed in such persons in whom those qualities are most likely to be found; the perfection of which are among the attributes of Him who is emphatically styled the Supreme Being; the three grand requisites, I mean, of wisdom, goodness, and of power: wisdom, to discern the real interest of the community; goodness, to endeavour always to pursue that real interest; and strength or power, to carry this knowledge and intention into action. These are the natural foundations of sovereignty; and these are the requisites that ought to be found in every well constituted frame of government.”

V. Every thing in its place. Theology in a sermon, or a catechism. But in this place, the flourish we have seen might, for every purpose of instruction, have much better, it should seem, been spared. What purpose the idea of that tremendous and incomprehensible Being, thus unnecessarily introduced, can answer, I cannot see, unless it were to bewilder and entrance the reader; as it seems to have bewildered and entranced the writer. Beginning thus, is beginning at the wrong end: it is explaining ignotum per ignotius. It is not from the attributes of the Deity, that an idea is to be had of any qualities in men: on the contrary, it is from what we see of the qualities of men, that we obtain the feeble idea we can frame to ourselves, of the attributes of the Deity.

VI. We shall soon see whether it be light or darkness our Author has brought back from this excursion to the clouds. The qualifications he has pitched upon for those in whose hands Government is to be reposed, we see are three: wisdom, goodness, and power. Now of these three, one there is which, I doubt, will give him some trouble to know what to do with: I mean, that of Power; which, looking upon it as a jewel, it should seem, that would give a lustre to the royal diadem, he was for importing from the celestial regions. In heaven, indeed, we shall not dispute its being to be found; and that at all junctures alike. But the parallel, I doubt, already fails. In the earthly governors in question, or, to speak more properly, candidates for government, by the very supposition there cannot, at the juncture he supposes, be any such thing. Power is that very quality which, in consideration of these other qualities, which, it is supposed, are possessed by them already, they are now waiting to receive.

VII. By Power in this place, I, for my part, mean political power: the only sort of power our Author could mean; the only sort of power that is here in question. A little farther on we shall find him speaking of this endowment as being possessed, and that in the highest degree, by a King, a single person. Natural power, therefore—mere organical power—the faculty of giving the hardest blows, can never, it is plain, be that which he meant to number among the attributes of this godlike personage.

VIII. We see, then, the dilemma our Author’s theology has brought him into, by putting him upon reckoning power among the qualifications of his candidates. Power is either natural or political. Political power is what they cannot have by the supposition: for that is the very thing that is to be created, and which, by the establishment of Government, men are going to confer on them. If any, then, it must be natural power; the natural strength that a man possesses of himself without the help of Government. But of this, then, if this be it, there is more, if we may believe our Author, in a single member of a society, than in that member and all the rest of the society put together.[b]

IX. This difficulty, if possible, one should be glad to see cleared up. The truth is, I take it, that in what our Author has said of power, he has been speaking, as it were, by anticipation; and that what he means by it, is not any power of either kind actually possessed by any man, or body of men, at the juncture he supposes, but only a capacity, if one may call it so, of retaining and putting into action political power, whensoever it shall have been conferred. Now, of actual power, the quantity that is possessed is, in every case, one and the same: for it is neither more nor less than the Supreme power. But as to the capacity above spoken of, there do seem, indeed, to be good grounds for supposing it to subsist in a higher degree in a single man than in a body.

X. These grounds it will not be expected that I should display at large: a slight sketch will be sufficient.—The efficacy of power is, in part at least, in proportion to the promptitude of obedience; the promptitude of obedience is, in part, in proportion to the promptitude of command: command is an expression of will; a will is sooner formed by one than many. And this, or something like it, I take to be the plain English of our Author’s metaphor, where he tells us,* as we shall see a little farther on,† that “a monarchy is the most powerful [form of government] of any, all the sinews of government being knit together, and united in the hands of the prince.”

XI. The next paragraph, short as it is, contains variety of matter. The first two sentences of it, are to let us know, that with regard to the manner in which the several particular governments that we know of have been formed, he thinks proper to pass it by. A third is to intimate, for the second time, that all Governments must be absolute in some hands or other: in the fourth and last, he favours us with a very comfortable piece of intelligence; the truth of which, but for his averment, few of us, perhaps, would have suspected. This is, that the qualifications mentioned by the last paragraph as requisite to be possessed by all Governors of states, are, or at least once upon a time were, actually possessed by them: (i. e.) according to the opinion of somebody; but of what somebody is not altogether clear: whether in the opinion of these Governors themselves, or of the persons governed by them.

XII. “How the several forms of Government we now see in the world at first actually began,” says our Author, “is matter of great uncertainty, and has occasioned infinite disputes. It is not my business or intention to enter into any of them. However they began, or by what right soever they subsist, there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or the rights of sovereignty, reside. And this authority is placed in those hands, wherein (according to the opinion of the founders of such respective states, either expressly given or collected from their tacitapprobation) the qualities requisite for supremacy, wisdom, goodness, and power, are the most likely to be found.”

XIII. Who those persons are, whom our Author means here by the word founders; whether those who became the Governors of the states in question, or those who became the governed, or both together, is what I would not take upon me positively to determine. For aught I know, he may have meant neither the one nor the other, but some third person. And, indeed, what I am vehemently inclined to suspect is, that, in our Author’s large conception, the mighty and extensive domains of Athens and Sparta, of which we read so much at school and at college, consisting each of several scores of miles square, represented, at the time this paragraph was writing, the whole universe: and the respective eras of Solon and Lycurgus, the whole period of the history of those states.

XIV. The words “founders,”—“opinion,”—“approbation,”—in short, the whole complexion of the sentence, is such as brings to one’s view a system of government utterly different from the generality of those we have before our eyes: a system in which one would think neither caprice, nor violence, nor accident, nor prejudice, nor passion, had any share: a system uniform, comprehensive, and simultaneous; planned with phlegmatic deliberation; established by full and general assent: such, in short, as, according to common imagination, were the systems laid down by the two sages above mentioned. If this be the case, the object he had in mind when he said Founders, might be neither Governors nor governed, but some neutral person: such as those sages, chosen as they were in a manner as umpires, might be considered with regard to the persons who, under the prior constitution, whatever it was, had stood respectively in those two relations.

XV. All this, however, is but conjecture: in the proposition itself, neither this nor any other restriction is expressed. It is delivered explicitly and emphatically in the character of an universal one. “In all of them,” he assures us, “this authority (the supreme authority) is placed in those hands, wherein, according to the opinion of the founders of such respective states,” these “qualities of wisdom, goodness, and power, are the most likely to be found.” In this character it cannot but throw a singular light on history. I can see no end, indeed, to the discoveries it leads to, all of them equally new and edifying. When the Spaniards, for example, became masters of the empire of Mexico, a vulgar politician might suppose it was because such of the Mexicans as remained unexterminated, could not help it. No such thing—It was because either the Spaniards were of “opinion,” or the Mexicans themselves were of “opinion” (which of the two is not altogether clear) that, in Charles V. and his successors, more goodness (of which they had such abundant proofs) as well as wisdom, was likely to be found, than in all the Mexicans put together. The same persuasion obtained between Charlemagne and the German Saxons with respect to the goodness and wisdom of Charlemagne:—between William the Norman and the English Saxons:—between Mahomet II. and the subjects of John Paleologus:—between Odoacer and those of Augustulus:—between the Tartar Gingiskan and the Chinese of his time:—between the Tartars Chang-ti and Cam-ghi, and the Chinese of their times:—between the Protector Cromwell and the Scotch:—between William III. and the Irish Papists:—between Cæsar and the Gauls:—in short, between the Thirty Tyrants, so called, and the Athenians, whom our Author seems to have had in view:—to mention these examples only, out of as many hundred as might be required. All this, if we may trust our Author, he has the “goodness” to believe: and by such lessons is the penetration of students to be sharpened for piercing into the depths of politics.

XVI. So much for the introductory paragraph.—The main part of the subject is treated of in six others: the general contents of which are as follows:

XVII. In the first he tells us how many different forms of government there are according to the division of the ancients; which division he adopts. These are three: Monarchy, Aristocracy, and Democracy.

XVIII. The next is to tell us, that by the sovereignpower he means that of “making laws.”

XIX. In a third he gives us the advantages and disadvantages of these three different forms of government.

XX. In a fourth he tells us that these are all the ancients would allow of.

XXI. A fifth is to tell us that the British form of Government is different from each of them; being a combination of all, and possessing the advantages of all.

XXII. In the sixth and last, he shows us that it could not possess these advantages, if, instead of being what it is, it were either of those others: and tells us what it is that may destroy it. These two last it will be sufficient here to mention: to examine them will be the task of our next chapter.

XXIII. Monarchy is that form of Government in which the power of making laws is lodged in the hands of a single member of the state in question. Aristocracy is that form of Government in which the power of making laws is lodged in the hands of several members. Democracy is that form of Government in which the power of making laws is lodged in the hands of “all” of them put together. These, according to our Author, are the definitions of the Ancients; and these, therefore, without difficulty, are the definitions of our Author.

XXIV. “The political writers of antiquity,” says he, “will not allow more than three regular forms of government; the first, when the sovereign power is lodged in an aggregate assembly, consisting of all the members of a community, which is called a Democracy; the second, when it is lodged in a council composed of select members, and then it is styled an Aristocracy; the last, when it is entrusted in the hands of a single person, and then it takes the name of a Monarchy. All other species of government, they say, are either corruptions of, or reducible to these three.”

XXV. “By the sovereign power, as was before observed, is meant the making of laws; for wherever that power resides, all others must conform to, and be directed by it, whatever appearance the outward form and administration of the government may put on. For it is at any time in the option of the legislature to alter that form and administration by a new edict or rule, and to put the execution of the laws into whatever hands it pleases: and all the other powers of the state must obey the legislative power in the execution of their several functions, or else the constitution is at an end.”

XXVI. Having thus got three regular simple forms of Government (this anomalous complex one of our own out of the question) and just as many qualifications to divide among them; of each of which, by what he told us a while ago, each form of Government must have some share, it is easy to see how their allotments will be made out. Each form of Government will possess one of these qualities in perfection, taking its chance, if one may say so, for its share in the two others.

XXVII. Among these three different forms of Government, then, it should seem, according to our Author’s account of them, there is not much to choose. Each of them has a qualification, an endowment, to itself. Each of them is completely characterized by this qualification. No intimation is given of any pre-eminence among these qualifications, one above another. Should there be any dispute concerning the preference to be given to any of these forms of Government, as proper a method as any of settling it, to judge from this view of them, is that of cross and pile. Hence we may infer, that all the Governments that ever were, or will be (except a very particular one that we shall come to presently, that is to say, our own), are upon a par: that of Athens with that of Persia; that of Geneva with that of Morocco; since they are all of them, he tells us, “corruptions of, or reducible to,” one of these. This is happy. A legislator cannot do amiss. He may save himself the expense of thinking. The choice of a King was once determined, we are told, by the neighing of a horse: the choice of a form of Government might be determined so as well.

XXVIII. As to our own form of Government, however, this, it is plain, being that which it seemed good to take for the theme of his panegyric, and being made out of the the other three, will possess the advantages of all of them put together; and that without any of the disadvantages; the disadvantages vanishing at the word of command, or even without it, as not being suitable to the purpose.

XXIX. At the end of the paragraph which gives us the above definitions, one observation there is that is a little puzzling: “Other species of Government,” we are given to understand, there are besides these; but then those others, if not “reducible to,” are but “corruptions of these.” Now, what there is in any of these to be corrupted, is not so easy to understand. The essence of these several forms of Government, we must always remember, is placed by him, solely and entirely, in the article of number: in the ratio of the number of the Governors (for so for shortness we will style those in whose hands is lodged this “power of making laws”) to that of the governed. If the number of the former be, to that of the latter, as one to all, then is the form of Government a Monarchy: if as all to all, then is it a Democracy: if as some number between one and all, to all, then is it an Aristocracy. Now, then, if we can conceive a fourth number, which not being more than all, is neither one nor all, nor any thing between one and all, we can conceive a form of Government, which, upon due proof, may appear to be a corruption of some or one or other of these three.[c] If not, we must look for the corruption somewhere else: Suppose it were in our Author’s reason.[d]

XXX. Not but that we may meet, indeed, with several other hard-worded names for forms of Government: but these names were only so many names for one or other of those three. We hear often of a Tyranny: but this is neither more nor less than the name a man gives to our Author’s Monarchy, when out of humour with it. It is still the Government of number one. We hear now and then, too, of a sort of Government called an Oligarchy: but this is neither more nor less than the name a man gives to our Author’s Aristocracy, in the same case. It is still the Government of some number or other, between one and all. In fine, we hear now and then of a sort of Government fit to break one’s teeth, called an Ochlocracy: but this is neither more nor less than the name a man gives to a Democracy in the same case. It is still that sort of Government which, according to our Author, is the Government of all.

XXXI. Let us now see how he has disposed of his three qualifications among his three sorts or forms of Government. Upon Monarchy we shall find he has bestowed the perfection of power; on Aristocracy, of wisdom; on Democracy, of goodness: each of these forms having just enough, we may suppose, of the two remaining qualifications besides its own peculiar one, to make up the necessary complement of “qualities requisite for supremacy.” Kings are (nay were before they were Kings, since it was this qualification determined their subjects to make them Kings* ) as strong as so many Hercules’s; but then, as to their wisdom or their goodness, there is not much to say. The members of an Aristocracy are so many Solomons: but then they are not such sturdy folks as your Kings; nor, if the truth is to be spoken, have they much more honesty than their neighbours. As to the members of a Democracy, they are the best sort of people in the world; but then they are but a puny sort of gentry as to strength, put them all together; and apt to be a little defective in point of understanding.

XXXII. “In a democracy,” says he, “where the right of making laws resides in the people at large, public virtue, or goodness of intention, is more likely to be found, than either of the other qualities of government. Popular assemblies are frequently foolish in their contrivance, and weak in their execution; but generally mean to do the thing that is right and just, and have always a degree of patriotism or public spirit. In aristocracies there is more wisdom to be found than in the other frames of Government; being composed, or intended to be composed, of the most experienced citizens; but there is less honesty than in a republic, and less strength than in a monarchy. A monarchy is indeed the most powerful of any, all the sinews of government being knit together and united in the hand of the prince; but then there is imminent danger of his employing that strength to improvident or oppressive purposes.”

XXXIII. “Thus these three species of government have all of them their several perfections and imperfections. Democracies are usually the best calculated to direct the end of a law; aristocracies to invent the means by which that end shall be obtained; and monarchies to carry those means into execution. And the ancients, as was observed, had in general no idea of any other permanent form of government but these three; for though Cicero declares himself of opinion, esse optimè constitutam rempublicam, quæ ex tribus generibus illis, regali, optimo, et populari sit modicè confusa; yet Tacitus treats this notion of a mixed government, formed out of them all, and partaking of the advantages of each, as a visionary whim; and one that, if effected, could never be lasting or secure.”

XXXIV. In the midst of this fine-spun ratiocination, an accident has happened, of which our Author seems not to be aware. One of his accidents, as a logician would say, has lost its subject: one of the qualifications he has been telling us of, is, somehow or other, become vacant; the form of Government he designed it for, having unluckily slipped through his fingers in the handling. I mean Democracy; which he, and, according to him, the Ancients, make out to be the government of all. Now “all” is a great many; so many that, I much doubt, it will be rather a difficult matter to find these high and mighty personages power enough—so much as to make a decent figure with. The members of this redoubtable Commonwealth will be still worse off, I doubt, in point of subjects, than Trinculo in the play, or than the potentates, whom some late navigators found lording it, with might and main, “ϰρατερῃφι βιηφι,” over a Spanish settlement: there were three members of the Government; and they had one subject among them all.*[e] Let him examine it a little, and it will turn out, I take it, to be precisely that sort of Government, and no other, which one can conceive to obtain where there is no Government at all. Our Author, we may remember, had shrewd doubts about the existence of a state of nature:† grant him his Democracy, and it exists in his Democracy.[f]

XXXV. The qualification of goodness, I think it was, that belonged to the Government of all, while there was such a Government. This having taken its flight, as we have seen, to the region of nonentities, the qualification that was designed for it remains upon his hands: he is at liberty, therefore, to make a compliment of it to Aristocracy or to Monarchy, which best suits him. Perhaps it were as well to give it to Monarchy; the title of that form of government to its own peculiar qualification, power, being, as we have seen, rather an equivocal one: or else, which, perhaps, is as good a way of settling matters as any, he may set them to cast lots.

CHAPTER III.

THE BRITISH CONSTITUTION.

I. With a set of data, such as we have seen in the last chapter, we may judge whether our Author can meet with any difficulty in proving the British Constitution to be the best of all possible governments, or indeed any thing else that he has a mind. In his paragraph on this subject, there are several things that lay claim to our attention. But it is necessary we should have it under our eye.

II. “But happily for us in this island, the British Constitution has long remained, and I trust will long continue, a standing exception to the truth of this observation. For, as with us the executive power of the laws is lodged in a single person, they have all the advantages of strength and dispatch that are to be found in the most absolute monarchy; and, as the Legislature of the kingdom is entrusted to three distinct powers entirely independent of each other; first, the King; second, the Lords Spiritual and Temporal, which is an aristocratical assembly of persons selected for their piety, their birth, their wisdom, their valour, or their property; and third, the House of Commons, freely chosen by the people from among themselves, which makes it a kind of democracy: as this aggregate body, actuated by different springs, and attentive to different interests, composes the British Parliament, and has the supreme disposal of every thing; there can no inconvenience be attempted by either of the three branches, but will be withstood by one of the other two; each branch being armed with a negative power sufficient to repel any innovation which it shall think inexpedient or dangerous.”

III. “Here then is lodged the sovereignty of the British Constitution; and lodged as beneficially as is possible for society. For in no other shape could we be so certain of finding the three great qualities of Government so well and so happily united. If the supreme power were lodged in any one of the three branches separately, we must be exposed to the inconveniencies of either absolute monarchy, aristocracy, or democracy; and so want two of the principal ingredients of good polity, either virtue, wisdom, or power. If it were lodged in any two of the branches; for instance, in the King and House of Lords, our Laws might be providentially made and well executed, but they might not always have the good of the people in view: if lodged in the King and Commons, we should want that circumspection and mediatory caution, which the wisdom of the Peers is to afford: if the supreme rights of legislature were lodged in the two Houses only, and the King had no negative upon their proceedings, they might be tempted to encroach upon the royal prerogative, or perhaps to abolish the kingly office, and thereby weaken (if not totally destroy) the strength of the executive power. But the constitutional government of this island is so admirably tempered and compounded, that nothing can endanger or hurt it, but destroying the equilibrium of power between one branch of the legislature and the rest. For if ever it should happen that the independence of any one of the three should be lost, or that it should become subservient to the views of either of the other two, there would soon be an end of our constitution. The legislature would be changed from that which was originally set up by the general consent and fundamental act of the society; and such a change, however effected, is, according to Mr. Locke (who perhaps carries his theory too far) at once an entire dissolution of the bands of Government, and the people would be reduced to a state of anarchy, with liberty to constitute to themselves a new legislative power.”

IV. In considering the first of these two paragraphs, in the first place, a phenomenon we should little expect to see from any thing that goes before, is a certain executive power, that now, for the first time, bolts out upon us without warning or introduction.

The power, the only power our Author has been speaking of all along till now, is the legislative. ’Tis to this, and this alone, that he has given the name of “sovereign power.” ’Tis this power, the different distributions of which he makes the characteristics of his three different forms of Government. ’Tis with these different distributions, distributions made of the legislative power, that, according to his account, are connected the several qualifications laid down by him, as “requisites for supremacy:” qualifications in the possession of which consist all the advantages which can belong to any form of Government. Coming now then to the British Constitution, it is in the superior degree in which these qualifications of the legislative body are possessed by it, that its peculiar excellence is to consist. It is by possessing the qualification of strength, that it possesses the advantage of a monarchy. But how is it, then, that, by his account, it possesses the qualification of strength? By any disposition made of the legislative power? By the legislative power’s being lodged in the hands a single person, as in the case of a monarchy? No; but to a disposition made of a new power, which comes in, as it were, in a parenthesis—a new power which we now hear of for the first time—a power which has not, by any description given of it, been distinguished from the legislative—an executive.

V. What, then, is this same executive power? I doubt our Author would not find it a very easy matter to inform us. “Why not?” says an objector: “is it not that power which in this country the King has in addition to his share in the legislative?” Be it so: the difficulty for a moment is staved off. But that it is far enough from being solved, a few questions will soon show us. This power, is it that only which the King really has, or is it all that he is said to have? Is it that only which he really has, and which he exercises? or is it that also, which although he be said to have it, he neither does exercise, nor may exercise? Does it include judiciary power or not? If it does, does it include the power of making as well particular decisions and orders, as general, permanent, spontaneous regulations of procedure, such as are some of those we see made by judges? Doth it include supreme military power, and that as well in ordinary as in a time of martial law? Doth it include the supreme fiscal power;[a] and, in general, that power which, extending as well over the public money as over every other article of public property, may be styled the dispensatorial?[b] Doth it include the power of granting patents for inventions, and charters of incorporation? Doth it include the right of making bye-laws in corporations? And is the right of making bye-laws in corporations the superior right to that of conferring the power to make them? or is it that there is an executive power that is superior to a legislative? This executive, again, doth it include the right of substituting the laws of war to the laws of peace? and, vice versâ, the laws of peace to the laws of war? Doth it include the right of restraining the trade of subjects by treaties with foreign powers? Doth it include the right of delivering over, by virtue of the like treaties, large bodies of subjects to foreign laws?—He that would understand what power is executive and not legislative, and what legislative and not executive; he that would mark out and delineate the different species of constitutional powers; he that would describe either what is, or what ought to be the constitution of a country, and particularly of this country,—let him think of these things.

VI. In the next place, we are told in a parenthesis (it being a matter so plain as to be taken for granted) that “each of these branches of the Legislature is independent,”—yes, “entirely independent,” of the two others.—Is this then really the case? Those who consider the influence which the King and so many of the Lords have in the election of Members of the House of Commons; the power which the King has, at a minute’s warning, of putting an end to the existence of any House of Commons; those who consider the influence which the King has over both Houses, by offices of dignity and profit given and taken away again at pleasure; those who consider that the King, on the other hand, depends for his daily bread on both Houses, but more particularly on the House of Commons; not to mention a variety of other circumstances that might be noticed in the same view,—will judge what degree of precision there was in our Author’s meaning, when he so roundly asserted the affirmative.

VII. One parenthesis more: for this sentence teems with parenthesis within parenthesis. To this we are indebted for a very interesting piece of intelligence: nothing less than a full and true account which he has given us of the personal merits of the members of the House of Lords for the time being. This he is enabled to do, by means of a contrivance of his own, no less simple than it is ingenious: to wit, that of looking at their titles. It is by looking at men’s titles that he perceives, not merely that they ought to possess certain merits, not that there is reason to wish they may possess them, but that they do actually possess them, and that it is by possessing those merits that they come to possess these titles. Seeing that some are Bishops, he knows that they are pious: seeing that some are Peers, he knows that they are wise, rich, valiant.[c]

VIII. The more we consider the application he makes of the commonplace notions concerning the three forms of Government to our own, the more we shall see the wide difference there is between reading and reflecting. Our own he finds to be a combination of these three. It has a Monarchical branch, an Aristocratical, and a Democratical. The Aristocratical is the House of Lords; the Democratical is the House of Commons. Much had our Author read at school, doubtless, and at college, of the wisdom and gravity of the Spartan senate: something, probably, in Montesquieu, and elsewhere, about the Venetian. He had read of the turbulence and extravagance of the Athenian mob. Full of these ideas, the House of Lords were to be our Spartans or Venetians; the House of Commons, our Athenians. With respect, then, to the point of wisdom, (for that of honesty we will pass by) the consequence is obvious. The House of Commons, however excellent in point of honesty, is an assembly of less wisdom than that of the House of Lords. This is what our Author makes no scruple of assuring us. A Duke’s son gets a seat in the House of Commons: there needs no more to make him the very model of an Athenian cobbler.

IX. Let us find out, if we can, whence this notion of the want of wisdom in the members of a Democracy, and of the abundance of it in those of an Aristocracy, could have had its rise. We shall then see with what degree of propriety such a notion can be transferred to our Houses of Lords and Commons.

In the members of a Democracy, in particular, there is likely to be a want of wisdom—Why? The greater part being poor, are, when they begin to take upon them the management of affairs, uneducated: being uneducated, they are illiterate: being illiterate, they are ignorant. Ignorant, therefore, and unwise, if that be what is meant by ignorant, they begin. Depending for their daily bread on the profits of some petty traffic, or the labour of some manual occupation, they are nailed to the work-board, or the counter. In the business of Government, it is only by fits and starts that they have leisure so much as to act: they have no leisure to reflect. Ignorant, therefore, they continue.—But in what degree is this the case with the Members of our House of Commons?

X. On the other hand, the members of an Aristocracy, being few, are rich: either they are members of the Aristocracy, because they are rich; or they are rich, because they are members of the Aristocracy. Being rich, they are educated: being educated, they are learned: being learned, they are knowing. They are at leisure to reflect, as well as act. They may therefore naturally be expected to become more knowing, that is, more wise, as they persevere. In what degree is this the case with the Members of the House of Lords, more than with those of the House of Commons? The fact is, as every body sees, that either the Members of the House of Commons are as much at leisure as those of the House of Lords; or, if occupied, in such a way as tends to give them a more than ordinary insight into some particular department of Government. In whom shall we expect to find so much knowledge of Law as in a professed Lawyer? of Trade, as in a Merchant?

XI. But hold—Our Author, when he attributes to the members of an Aristocracy more wisdom than to those of a Democracy, has a reason of his own. Let us endeavour to understand it, and then apply it, as we have applied the others. In Aristocratical bodies, we are to understand there is more experience: at least it is intended by somebody or other there should be: which, it seems, answers the same purpose as if there was. “In Aristocracies,” says our Author, “there is more wisdom to be found, than in the other frames of Government; being composed,” continues he, “or intended to be composed, of the most experienced citizens.”* On this ground then it is, that we are to take for granted, that the members of the House of Lords have more wisdom among them, than those of the House of Commons. It is this article of experience that, being a qualification possessed by the members of an Aristocratical body, as such, in a superior degree to that in which it can be possessed by a Democratical body, is to afford us a particular ground for attributing a greater share of wisdom to the Members of the Upper House, than to those of the Lower.

XII. How is it that a member of an Aristocracy, as such, is, of all things, to have attained more experience than the number of a Democracy, our Author has not told us; nor what it is this experience is to consist of. Is it experience of things preparatory to, but different from, the business of governing? This should rather go by the name of knowledge. Is it experience of the business itself of governing? Let us see. For the member of the one body, as of the other, there must be a time when he first enters upon this business. They both enter upon it, suppose on the same day. Now, then, is it on that same day that one is more experienced in it than the other? or is it on that day ten years?

XIII. Those, indeed, who recollect what we observed but now,† may answer without hesitation,—on that day ten years. The reason was there given. It is neither more nor less, than that want of leisure which the bulk of the numerous members of a Democracy must necessarily labour under, more than those of an Aristocracy. But of this, what intimation is there to be collected, from any thing that has been suggested by our Author?

XIV. So much with respect to Aristocracies in general. It happens also by accident, that that particular branch of our own government to which he has given the name of the Aristocratical—the House of Lords—has actually greater opportunities of acquiring the qualification of experience, than that other branch, the House of Commons, to which he has given the name of the Democratical. But to what is this owing? Not to any thing in the characteristic natures of those two bodies; not to the one’s being Aristocratical, and the other Democratical, but to a circumstance, entirely foreign and accidental, which we shall see presently. But let us observe his reasoning. The House of Lords, he says, is an assembly that behoves to have more wisdom in it than the House of Commons. This is the proposition. Now for the proof. The first is an Aristocratical assembly; the second a Democratical. An Aristocratical assembly has more experience than a Democratical; and on that account more wisdom. Therefore the House of Lords, as was to be proved, has more wisdom than the House of Commons. Now, what the whole of the argument rests upon, we may observe, is this fact, that an Aristocratical assembly, as such, has more experience than a Democratical one; but this, with Aristocratical assemblies in general, we see, is not, for any reason that our Author has given us, the case. At the same time, with respect to our House of Lords in particular, in comparison with the House of Commons, it does happen to be the case, owing to this simple circumstance: the members of the House of Lords, when once they begin to sit, sit on for life: those of the House of Commons only from seven years to seven years, or it may happen, less.

XV. In speaking, however, in this place, of experience, I would rather be understood to mean opportunity of acquiring experience, than experience itself. For actual experience depends upon other concurrent causes.

XVI. It is, however, from superiority of experience alone, that our Author derives superiority of wisdom. He has, indeed, the proverb in his favour: “Experience,” it has been said of old, “is the Mother of Wisdom:” be it so;—but then Interest is the Father. There is even an Interest that is the Father of Experience. Among the members of the House of Commons, though none so poor as to be illiterate, are many whose fortunes, according to the common phrase, are yet to make: the fortunes of those of the House of Lords (I speak in general) are made already. The members of the House of Commons may hope to be members of the House of Lords: the members of the House of Lords have no higher House of Lords to rise to. Is it natural for those to be most active who have the least, or those who have the most interest to be so? Are the experienced, those who are the least, or those who are the most active? Does experience come to men when asleep, or when awake? Is it the members of the House of Lords that are the most active, or of the House of Commons? To speak plain, is it in the House of Lords that there is most business done, or in the House of Commons? Was it after the fish was caught that the successor of St. Peter used the net, or was it before?[i] In a word, is there most wisdom ordinarily where there is least, or where there is most, to gain by being wise?[k]

XVII. A word or two more with respect to the characteristic qualifications, as our Author states them, of the higher assembly of our legislature. Experience is, in virtue of their being an aristocratical assembly, to afford them wisdom: thus far we were arrived before. But he now pushes the deduction a step farther.—Wisdom is to afford them “circumspection and mediatory caution:” qualifications which it seems as if we should see nothing of were it not for them. Let us now put a case. The business, indeed, that originates in the House of Lords, is, as things stand, so little, that our Author seems to forget that there is any. However, some there is. A bill, then, originates with the Lords, and is sent down to the Commons. As to “circumspection” I say nothing: that, let us hope, is not wanting to either House. But whose province is “mediatory caution” now?

XVIII. Thus much concerning these two branches of our Legislature, so long as they continue what, according to our Author’s principles, they are at present: the House of Lords the Aristocratical branch; the House of Commons the Democratical. A little while, and we shall see them so; but again a little while, perhaps, and we shall not see them so. For by what characteristic does our Author distinguish an Aristocratical legislative body from a Democratical one? By that of number: by the number of the persons that compose them: by that, and that alone: for no other has he given. Now, therefore, to judge by that, the House of Lords, at present, indeed, is the Aristocratical branch: the House of Commons, in comparison at least with the other, the Democratical. Thus far is well. But should the list of nobility swell at the rate we have sometimes seen it, there is an assignable period, and that, perhaps, at no very enormous distance, at which the assembly of the Lords will be more numerous than that of the Commons. Which will then be the Aristocratical branch of our Legislature? Upon our Author’s principles, the House of Commons. Which the Democratical? The House of Lords.

XIX. The final cause we are to observe, and finishing exploit, the “portus et sabbatum,” as Lord Bacon might perhaps have called it,[l] of this sublime and edifying dissertation, is this demonstration he has been giving us of the perfection of the British Form of Government. This demonstration (for by no less a title ought it to be called) is founded, we may have observed, altogether upon the properties of numbers: properties, newly discovered indeed, and of an extraordinary complexion, moral properties; but properties, however, so it seems, of numbers.* ’Tis in the nature, then, of numbers, we shall find these characteristic properties of the three Forms of Government, if any where. Now the properties of numbers are universally allowed to be the proper subject of that mode of demonstration which is called mathematical. The proof our Author has given has therefore already in it the essence of such a demonstration. To be complete at all points, it wants nothing but the form. This deficiency is no other than what an underrate workman might easily supply. A mere technical operation does the business. That humble task it shall be my endeavour to perform. The substantial honour I ascribe wholly to our Author, to whom only it is most due.

XX. Proposition.Theorem.—The British Government is all-perfect.

*∗* Scholium. After the same manner it may be proved to be all-weak, all-foolish, and all-knavish.

XXI. Thus much for the British Constitution; and for the grounds of that preeminence which it boasts, I trust, indeed, not without reason, above all others that are known: Such is the idea our Author gives us of those grounds.—“You are not satisfied with it, then?” says some one.—Not perfectly.—“What is then your own?”—In truth this is more than I have quite yet settled. I may have settled it with myself, and not think it worth the giving: but if ever I do think it worth the giving, it will hardly be in the form of a comment on a digression, stuffed into the belly of a definition. At any rate, it is not likely to be much wished for by those who have read what has been given us on this subject by an ingenious foreigner: since it is to a foreigner we were destined to owe the best idea that has yet been given of a subject so much our own. Our Author has copied: but Mr. De Lolme has thought.

The topic which our Author has thus brought upon the carpet (let any one judge with what necessity) is, in respect to some parts of it that we have seen, rather of an invidious nature. Since, however, it has been brought upon the carpet, I have treated it with that plainness with which an Englishman of all others is bound to treat it, because an Englishman may thus treat it and be safe. I have said what the subject seemed to demand, without any fear indeed, but without any wish, to give offence: resolving not to permit myself to consider how this or that man might chance to take it. I have spoken without sycophantical respect, indeed, yet I hope not without decency: certainly without any party spleen. I chose rather to leave it to our Author to compliment men in the lump, and to stand aghast with admiration at the virtues of men unknown.* Our Author will do as shall seem meet to him. For my part, if ever I stand forth and sing the song of eulogy to great men, it shall be not because they occupy their station, but because they deserve it.

CHAPTER IV.

RIGHT OF THE SUPREME POWER TO MAKE LAWS.

I. We now come to the third topic touched upon in the digression; namely, the right, as our Author phrases it, which the Supreme Power has of making laws. And this topic occupies one pretty long paragraph. The title here given to it is the same which in the next succeeding paragraph he has found for it himself. This is fortunate: for, to have been obliged to find a title for it myself, is what would have been to the last degree distressing. To entitle a discourse, is to represent the drift of it. But, to represent the drift of this, is a task which, so long at least as I confine my consideration to the paragraph itself, bids defiance to my utmost efforts.

II. ’Tis to another passage or two, a passage or two that we have already seen starting up in distant parts of this digression, that I am indebted for such conjectures as I have been able to make up.

These conjectures, however, I could not have ventured so far to rely on, as on the strength of them to have furnished the paragraph with a title of my own framing. The danger of misrepresentation was too great; a kind of danger which a man cannot but lie eminently exposed to, who ventures to put a precise meaning upon a discourse which in itself has none. That I may just mention, however, in this place, the result of them; what he is really aiming at, I take it, is, to inculcate a persuasion that in every state there must subsist, in some hands or other, a power that is absolute. I mention it thus prematurely, that the reader may have some clue to guide him in his progress through the paragraph; which it is now time I should recite.

III. “Having,” says our Author, “thus cursorily considered the three usual species of government, and our own singular constitution, selected and compounded from them all, I proceed to observe, that, as the power of making laws constitutes the supreme authority, so wherever the supreme authority in any state resides, it is the right of that authority to make laws; that is, in the words of our definition, to prescribe the rule of civil action. And this may be discovered from the very end and institution of civil states. For a state is a collective body, composed of a multitude of individuals united for their safety and convenience, and intended to act together as one man. If it therefore is to act as one man, it ought to act by one uniform will. But in as much as political communities are made up of many natural persons, each of whom has his particular will and inclination, these several wills cannot by any natural union be joined together, or tempered and disposed into a lasting harmony, so as to constitute and produce that one uniform will of the whole. It can therefore be no otherwise produced than by a political union; by the consent of all persons to submit their own private wills to the will of one man, or of one, or more assemblies of men, to whom the supreme authority is entrusted: and this will of that one man, or assemblage of men, is, in different states, according to their different constitutions, understood to be law.”

IV. The other passages which suggested to me the construction I have ventured to put upon this, shall be mentioned by and by. First, let us try what is to be made of it by itself.

V. The obscurity, in which the first sentence of this paragraph is enveloped, is such, that I know not how to go about bringing it to light, without borrowing a word or two of logicians. Laying aside the preamble, the body of it, viz. “as the power of making laws constitutes the supreme authority, so wherever the supreme authority in any state resides, it is the right of that authority to make laws,” may be considered as constituting that sort of syllogism which logicians call an enthymeme. An enthymeme consists of two propositions; a consequent and antecedent. “The power of making laws,” says our Author, “constitutes the supreme authority.” This is his antecedent. From hence it is he concludes, that “wherever the supreme authority in any state resides, it is the right of that authority to make laws.” This, then, is his consequent.

Now so it is, that this antecedent, and this consequent, for any difference at least that I can possibly perceive in them, would turn out, were they but correctly worded, to mean precisely the same thing: for, after saying that “the power of making laws constitutes the supreme authority,” to tell us that, for that reason, “the supreme authority” is (or has) the power (or the right) of making laws, is giving us, I take it, much the same sort of information, as it would be to us to be told that a thing is so, because it is so: a sort of truth which there seems to be no very great occasion to send us upon “discovering, in the end and institution of civil states.” That by the “sovereign power,” he meant “the power of making laws;” this, or something like it, is no more, indeed, than what he had told us over and over, and over again, with singular energy and anxiety, in his 46th page, in his 49th, and in I know not how many pages besides: always taking care, for precision’s sake, to give a little variety to the expression: the words “power” and “authority” sometimes seemingly put for the same idea; sometimes seemingly opposed to each other; both of them sometimes denoting the fictitious being, the abstract quality; sometimes the real being or beings, the person or persons supposed to possess that quality.—Let us disentangle the sense from these ambiguities; let us learn to speak distinctly of the persons, and of the quality we attribute to them; and then let us make another effort to find a meaning for this perplexing passage.

VI. By the “supreme authority,” then, (we may suppose our Author to say) “I mean the same thing as when I say the power of making laws.” This is the proposition we took notice of above, under the name of the antecedent. This antecedent, then, we may observe, is a definition: a definition, to wit, of the phrase “supreme authority.” Now, to define a phrase, is to translate it into another phrase, supposed to be better understood, and expressive of the same ideas. The supposition here then is, that the reader was already, of himself, tolerably well acquainted with the import of the phrase “power of making laws;” that he was not at all, or was however less acquainted with the import of the phrase “supreme authority.” Upon this supposition, then, it is, that in order to his being made clearly to understand the latter, he is informed of its being synonymous to the former. Let us now introduce the mention of the person: let us add the word “person” to the definition; it will be the same definition still in substance, only a little more fully and precisely worded. For a person to possess the supreme authority, is for a person to possess the power of making laws. This, then, is what in substance has been already laid down in the antecedent.

VII. Now let us consider the consequent; which, when detached from the context, may be spoken of as making a sentence of itself. “Wherever,” says he, “the supreme authority in any state presides, it is the right of that authority to make Laws.”—By “wherever,” I take it for granted, he means, “in whatever persons:” by “authority,” in the former part of the sentence,—power; by the same word, “authority,” in the latter part of the sentence,—persons. Corrected, therefore, the sentence will stand thus: In whatever persons in any state the supreme power resides, it is the right of those persons to make Laws.

VIII. The only word now remaining undisposed of is the word “right.” And what to think of this, I must confess I know not: whether our Author had a meaning in it, or whether he had none. It is inserted, we may observe, in the latter part only of the sentence: it appears not in the former. Concerning this omission, two conjectures here present themselves: it may have happened by accident; or it may have been made by design. If by accident, then the case is, that the idea annexed to the word “right” is no other than what was meant to be included in the former part of the sentence, in which it is not expressed, as well as in the latter, in which it is. In this case it may, without any change in the signification, be expressed in both. Let it then be expressed, and the sentence, take it all together, will stand thus: In whatever persons the right of exercising supreme power in any state resides, it is the right of those persons to make Laws. If this conjecture be the true one, and I am apt to think it is, we see once more, and, I trust, beyond all doubt, that the consequent in this enthymeme is but a repetition of the antecedent. We may judge, then, whether it is from any such consideration as that of “the end and institution of civil states,” or any other consideration, that we are likely to gain any further conviction of the truth of this conclusion, than it presents us of itself. We may also form some judgment beforehand, what use or meaning there is likely to be in the assemblage of words that is to follow.

IX. What is possible, notwithstanding, however improbable, is, that the omission we have been speaking of was designed. In this case, what we are to understand is, that the word “right” was meant to introduce a new idea into this latter part of the sentence, over and above any that was meant to be suggested by the former. “Right,” then, according to this construction, in the one place, is to be considered as put in contradistinction to fact, in the other. The sense is, then, that whatever persons do actually exercise supreme power (or what, according to the antecedent of the enthymeme, is the same thing, the power of making laws), those persons have the right to exercise it. But, in this case, neither does what is given as a consequence in any respect follow from the antecedent, nor can any thing be made of it, but what is altogether foreign to the rest of the discourse: so much, indeed, that it seems more consonant to probability, as well as more favourable to our Author, to conclude that he had no meaning at all, than that he had this.

X. Let us now try what we can make of the remainder of the paragraph. Being ushered in by the word “for,” it seems to lay claim to the appellation of an argument. This argument, setting out, as we have seen, without an object, seems however to have found something like one at last, as if it had picked it up by the way. This object, if I mistake it not, is to persuade men, that the supreme power (that is, the person or persons in use to exercise the supreme power in a state) ought, in all points, without exception, to be obeyed. What men intend, he says, to do when they are in a state, is to act, as if they were but “one man.” But one man has but one will belonging to him. What they intend, therefore, or what they ought to intend (a slight difference, which our Author seems not to be well aware of) is, to act as if they had but one will. To act as if they had but one will, the way is for them to “join” all their wills “together.” To do this, the most obvious way would be to join them “naturally:” but, as wills will not splice and dovetail like deal boards, the only feasible way is to join them “politically.” Now the only way for men to join their wills together politically, is for them all to consent to submit their wills to the will of one. This one will, to which all others are to be submitted, is the will of those persons who are in use to exercise the supreme power; whose wills, again, when there happens to be many of them, have, by a process of which our Author has said nothing, been reduced (as we must suppose) into one already. So far our Author’s argument. The above is the substance of it fairly given; not altogether with so much ornament, indeed, as he has given it, but, I trust, with somewhat more precision. The whole concludes, we may observe, with our Author’s favourite identical proposition, or something like it, now for the twentieth time repeated.

XI. Taking it altogether, it is, without question, a very ingenious argument: nor can any thing in the world answer the purpose better, except just in the case where it happens to be wanted. Not but that a veteran antagonist, trained up in the regular and accustomed discipline of legal fencing—such an one, indeed, might contrive, perhaps, with due management, to give our Author the honour of the field. But should some undisciplined blunderer, like the Commissary’s landlady, thrust in quart, when he should have thrust in tierce, I doubt much whether he might not get within our Author’s guard.—I “intend?”—I “consent?”—I “submit” myself?—‘Who are you, I wonder, that should know what I do better than I do myself? As to “submitting my will” to the wills of the people who made this law you are speaking of,—what I know is, that I never “intended” any such thing: I abominate them, I tell you, and all they ever did, and have always said so: and as to my “consent,” so far have I been from giving it to their law, that from the first to the last, I have protested against it with all my might.’ So much for our refractory disputant.—What I should say to him I know: but what our Author could find to say in answer to him, is more than I can imagine.[a]

XII. Let us now return and pick up those other passages which we supposed to have a respect to the same design that seems to be in view in this. First comes the short introductory paragraph that ushers in the whole digression: a paragraph which, however short, and however imperfect with respect to the purpose of giving a general view of the contents of those which follow it, was, in despite of method, to expatiate upon this subject. Upon this subject, indeed, he does expatiate with a force of argument and energy of expression which nothing can withstand. “This,” it begins, “will necessarily lead us into a short inquiry concerning the nature of society and civil government.”* This is all the intimation it gives of the contents of those paragraphs we have examined. Upon this before us it touches in energetic terms; but more energetic than precise. “And the natural” (it continues) “and inherent right that belongs to the sovereignty of a state,” (natural right, observe, that belongs to the sovereignty of a political society) “wherever that sovereignty be lodged, of making and enforcing laws.”

XIII. This is not all. The most emphatical passage is yet behind. It is a passage in that short paragraph† which we found to contain such a variety of matter. He is there speaking of the several forms of government now in being. “However they began,” says he, “or by what right soever they subsist, there is and must be in all of them a supreme, irresistible, absolute, uncontrouled authority, in which the jura summi imperii, or the rights of sovereignty, reside.”

XIV. The vehemence, the δεινοτης, of this passage is remarkable. He ransacks the language: he piles up, one upon another, four of the most tremendous epithets he can find; he heaps Ossa upon Pelion: and, as if the English tongue did not furnish expressions strong or imposing enough, he tops the whole with a piece of formidable Latinity. From all this agitation, it is plain, I think, there is a something which he has very much at heart; which he wishes, but fears, perhaps, to bring out undisguised; which in several places, notwithstanding, burst out involuntarily, as it were, before he is well ready for it; and which a certain discretion, getting at last the upper hand of propensity, forces, as we have seen, to dribble away in a string of obscure sophisms. Thus oddly enough it happens, that that passage of them all, which, if I mistake not, is the only one that was meant to be dedicated expressly to the subject, is the least explicit on it.[b]

XV. A courage much stauncher than our Author’s might have wavered here. A task of no less intricacy was here to be travelled through, than that of adjusting the claims of those two jealous antagonists, Liberty and Government. A more invidious ground is scarcely to be found any where within the field of politics. Enemies encompass the traveller on every side. He can scarce stir but he must expect to be assaulted with the war-hoop of political heresy from one quarter or another. Difficult enough is the situation of him, who, in these defiles, feels himself impelled one way by fear, and another by affection.

XVI. To return to the paragraph which it was the more immediate business of this chapter to examine:—Were the path of obscurity less familiar to our Author, one should be tempted to imagine he had struck into it on the particular occasion before us, in the view of extricating himself from this dilemma. A discourse thus prudently indeterminate might express enough to keep fair with the rulers of the earth, without setting itself in direct array against the prejudices of the people. Viewed by different persons, it might present different aspects: to men in power it might recommend itself, and that from the first, under the character of a practical lesson of obedience for the use of the people; while among the people themselves it might pass muster, for a time at least, in quality of a string of abstract scientific propositions of jurisprudence. It is not till some occasion for making application of it should occur, that its true use and efficacy would be brought to light. The people, no matter on what occasion, begin to murmur, and concert measures of resistance. Now, then, is the time for the latent virtues of this passage to be called forth. The book is to be opened to them, and in this passage they are to be shown, what of themselves, perhaps, they would never have observed—a set of arguments curiously strung together and wrapped up, in proof of the universal expedience, or rather necessity, of submission; a necessity which is to arise, not out of the reflection that the probable mischiefs of resistance are greater than the probable mischiefs of obedience; not out of any such debateable consideration, but out of a something that is to be much more cogent and effectual; to wit, a certain metaphysico-legal impotence, which is to beget in them the sentiment, and answer all the purposes of a natural one. Armed, and full of indignation, our malcontents are making their way to the royal palace. In vain. A certain estoppel being made to bolt out upon them, in the manner we have seen, by the force of our Author’s legal engineering, their arms are to fall, as it were by enchantment, from their hands. To disagree, to clamour, to oppose, to take back, in short, their wills again, is now, they are told, too late: it is what cannot be done: their wills have been put in hotchpot along with the rest: they have “united,”—they have “consented,”—they have “submitted.”—Our Author having thus put his hook into their nose, they are to go back as they came, and all is peace. An ingenious contrivance this enough: but popular passion is not to be fooled, I doubt, so easily. Now and then, it is true, one error may be driven out for a time, by an opposite error; one piece of nonsense by another piece of nonsense; but for barring the door effectually and for ever against all error and all nonsense, there is nothing like the simple truth.

XVII. After all these pains taken to inculcate unreserved submission, would any one have expected to see our Author himself among the most eager to excite men to disobedience? and that, perhaps, upon the most frivolous pretences? in short, upon any pretence whatsoever? Such, however, upon looking back a little, we shall find him. I say, among the most eager; for other men, at least the most enlightened advocates for liberty, are content with leaving it to subjects to resist, for their own sakes, on the footing of permission: this will not content our Author, but he must be forcing it upon them as a point of duty.

XVIII. ’Tis in a passage antecedent to the digression we are examining, but in the same section, that, speaking of the pretended law of Nature, and of the law of Revelation, “No human laws,” he says, “should be suffered to contradict these.”* The expression is remarkable. It is not, that no human laws should contradict them; but, that no human laws should be suffered to contradict them. He then proceeds to give us an example. This example, one might think, would be such as should have the effect of softening the dangerous tendency of the rule:—on the contrary, it is such as cannot but enhance it;[c] and in the application of it to the rule, the substance of the latter is again repeated in still more explicit and energetic terms. “Nay,” says he, speaking of the act he instances, “if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine.”

XIX. The propriety of this dangerous maxim, so far as the Divine Law is concerned, is what I must refer to a future occasion for more particular consideration.[d] As to the Lawof Nature, if (as I trust it will appear) it be nothing but a phrase;[e] if there be no other medium for proving any act to be an offence against it, than the mischievous tendency of such act; if there be no other medium for proving a law of the state to be contrary to it, than the inexpediency of such law, unless the bare unfounded disapprobation of any one who thinks of it be called a proof; if a test for distinguishing such laws as would be contrary to the Lawof Nature from such as, without being contrary to it, are simply inexpedient, be that which neither our Author, nor any man else, so much as pretended ever to give; if, in a word, there be scarce any law whatever but what those who have not liked it have found, on some account or another, to be repugnant to some text of scripture; I see no remedy but that the natural tendency of such doctrine is to impel a man, by the force of conscience, to rise up in arms against any law whatever that he happens not to like. What sort of government it is that can consist with such a disposition, I must leave to our Author to inform us.

XX. It is the principle of utility, accurately apprehended and steadily applied, that affords the only clew to guide a man through these streights. It is for that, if any, and for that alone, to furnish a decision which neither party shall dare in theory to disavow. It is something to reconcile men even in theory. They are, at least, something nearer to an effectual union, than when at variance as well in respect to theory as of practice.

XXI. In speaking of the supposed contract between King and people,* I have already had occasion to give the description, and, as it appears to me, the only general description that can be given, of that juncture at which, and not before, resistance to government becomes commendable; or, in other words, reconcilable to just notions, whether of legal or not, at least of moral, and, if there be any difference, religious duty.† What was there said was spoken, at the time, with reference to that particular branch of government which was then in question; the branch that in this country is administered by the King. But if it was just, as applied to that branch of government, and in this country, it could only be for the same reason that it is so when applied to the whole of government, and that in any country whatsoever. It is then, we may say, and not till then, allowable to, if not incumbent on, every man, as well on the score of duty as of interest, to enter into measures of resistance; when, according to the best calculation he is able to make, the probable mischiefs of resistance (speaking with respect to the community in general) appear less to him than the probable mischiefs of submission. This, then, is to him, that is, to each man in particular, the juncture for resistance.

XXII. A natural question here is—by what sign shall this juncture be known? By what common signal, alike conspicuous and perceptible to all? A question which is readily enough started, but to which, I hope, it will be almost as readily perceived that it is impossible to find an answer. Common sign for such a purpose, I, for my part, know of none: he must be more than a prophet, I think, that can show us one. For that which shall serve as a particular sign to each particular person, I have already given one—his own internal persuasion of a balance of utility on the side of resistance.

XXIII. Unless such a sign, then, which I think impossible, can be shown, the field, if one may say so, of the supreme governor’s authority, though not infinite, must unavoidably, I think, unless where limited by express convention,[f] be allowed to be indefinite. Nor can I see any narrower or other bounds to it, under this constitution, or under any other yet freer constitution, if there be one, than under the most despotic. Before the juncture I have been describing were arrived, resistance, even in a country like this, would come too soon: were the juncture arrived already, the time for resistance would be come already, under such a government even as any one should call despotic.

XXIV. In regard to a government that is free, and one that is despotic, wherein is it, then, that the difference consists? Is it that those persons in whose hands that power is lodged which is acknowledged to be supreme, have less power in the one than in the other, when it is from custom that they derive it? By no means. It is not that the power of one, any more than of the other, has any certain bounds to it. The distinction turns upon circumstances of a very different complexion:—on the manner in which the whole mass of power, which, taken together, is supreme, is, in a free state, distributed among the several ranks of persons that are sharers in it:—on the source from whence their titles to it are successively derived:—on the frequent and easy changes of condition between governors and governed; whereby the interests of the one class are more or less indistinguishably blended with those of the other:—on the responsibility of the governors; or the right which a subject has of having the reasons publicly assigned and canvassed of every act of power that is exerted over him:—on the liberty of the press; or the security with which every man, be he of the one class or the other, may make known his complains and remonstrances to the whole community:—on the liberty of public association; or the security with which malcontents may communicate their sentiments, concert their plans, and practise every mode of opposition short of actual revolt, before the executive power can be legally justified in disturbing them.

XXV. True, then, it may be, that, owing to this last circumstance in particular, in a state thus circumstanced, the road to a revolution, if a revolution be necessary, is to appearance shorter; certainly more smooth and easy. More likelihood, certainly, there is of its being such a revolution as shall be the work of a number; and in which, therefore, the interests of a number are likely to be consulted. Grant, then, that by reason of these facilitating circumstances, the juncture itself may arrive sooner, and upon less provocation, under what is called a free government, than under what is called an absolute one: grant this;—yet till it be arrived, resistance is as much too soon under one of them as under the other.

XXVI. Let us avow then, in short, steadily but calmly, what our Author hazards with anxiety and agitation, that the authority of the supreme body cannot, unless where limited by express convention, be said to have any assignable, any certain bounds.—That to say there is any act they cannot do,—to speak of any thing of their’s as being illegal,—as being void;—to speak of their exceeding their authority (whatever be the phrase)—their power,—their right,—is, however common, an abuse of language.

XXVII. The legislature cannot do it? The legislature cannot make a law to this effect? Why cannot? What is there that should hinder them? Why not this, as well as so many other laws murmured at, perhaps as inexpedient, yet submitted to without any question of the right? With men of the same party, with men whose affections are already listed against the law in question, any thing will go down: any rubbish is good that will add fuel to the flame. But with regard to an impartial by-stander, it is plain that it is not denying the right of the legislature, their authority, their power, or whatever be the word—it is not denying that they can do what is in question—it is not that, I say, or any discourse verging that way, that can tend to give him the smallest satisfaction.

XXVIII. Grant even the proposition in general:—What are we the nearer? Grant that there are certain bounds to the authority of the legislature:—Of what use is it to say so, when these bounds are what nobody has ever attempted to mark out to any useful purpose; that is, in any such manner whereby it might be known beforehand what description a law must be of to fall within, and what to fall beyond them? Grant that there are things which the legislator cannot do;—grant that there are laws which exceed the power of the legislature to establish: what rule does this sort of discourse furnish us for determining whether any one that is in question is, or is not, of the number? As far as I can discover, none. Either the discourse goes on in the confusion it began;—either all rests in vague assertions, and no intelligible argument at all is offered; or if any, such arguments as are drawn from the principle of utility: arguments which, in whatever variety of words expressed, come at last to neither more nor less than this: that the tendency of the law is, to a greater or a less degree, pernicious. If this then be the result of the argument, why not come home to it at once? Why turn aside into a wilderness of sophistry, when the path of plain reason is straight before us?

XXIX. What practical inferences those who maintain this language mean should be deduced from it, is not altogether clear; nor, perhaps, does every one mean the same. Some who speak of a law as being void (for to this expression, not to travel through the whole list, I shall confine myself) would persuade us to look upon the authors of it as having thereby forfeited, as the phrase is, their whole power: as well that of giving force to the particular law in question, as to any other. These are they who, had they arrived at the same practical conclusion through the principle of utility, would have spoken of the law as being to such a degree pernicious, as that, were the bulk of the community to see it in its true light, the probable mischief of resisting it would be less than the probable mischief of submitting to it. These point, in the first instance, at hostile opposition.

XXX. Those who say nothing about forfeiture are commonly less violent in their views. These are they who, were they to ground themselves on the principle of utility, and to use our language, would have spoken of the law as being mischievous indeed, but without speaking of it as being mischievous to the degree that has been just mentioned. The mode of opposition which they point to is one which passes under the appellation of a legal one.

XXXI. Admit, then, the law to be void in their sense, and mark the consequences. The idea annexed to the epithet void is obtained from those instances in which we see it applied to a private instrument. The consequence of a private instrument’s being void is, that all persons concerned are to act as if no such instrument had existed. The consequence, accordingly, of a law’s being void must be, that people shall act as if there were no such law about the matter: and therefore, that if any person, in virtue of the mandate of the law, should do anything in coercion of another person, which without such law he would be punishable for doing, he would still be punishable; to wit, by appointment of the judicial power. Let the law, for instance, be a law imposing a tax: a man who should go about to levy the tax by force would be punishable as a trespasser: should he chance to be killed in the attempt, the person killing him would not be punishable as for murder: should he kill, he himself would, perhaps, be punishable as for murder. To whose office does it appertain to do those acts in virtue of which such punishment would be inflicted? To that of the Judges. Applied to practice, then, the effect of this language is, by an appeal made to the Judges, to confer on those magistrates a controuling power over the acts of the legislature.

XXXII. By this management, a particular purpose might, perhaps, by chance be answered: and let this be supposed a good one. Still what benefit would, from the general tendency of such a doctrine, and such a practice in conformity to it, accrue to the body of the people, is more than I can conceive. A Parliament, let it be supposed, is too much under the influence of the Crown; pays too little regard to the sentiments and the interests of the people. Be it so. The people, at any rate, if not so great a share as they might and ought to have, have had, at least, some share in choosing it. Give to the Judges a power of annulling its acts; and you transfer a portion of the supreme power from an assembly which the people have had some share, at least, in choosing, to a set of men in the choice of whom they have not the least imaginable share: to a set of men appointed solely by the Crown: appointed solely, and avowedly, and constantly, by that very magistrate whose partial and occasional influence is the very grievance you seek to remedy.

XXXIII. In the heat of debate, some, perhaps, would be for saying of this management, that it was transferring at once the supreme authority from the legislative power to the judicial. But this would be going too far on the other side. There is a wide difference between a positive and a negative part in legislation. There is a wide difference, again, between a negative upon reasons given, and a negative without any. The power of repeating a law, even for reasons given, is a great power: too great, indeed, for Judges; but still very distinguishable from, and much inferior to, that of making one.[g]

XXXIV. Let us now go back a little. In denying the existence of any assignable bounds to the supreme power, I added,* “unless where limited by express convention:” for this exception I could not but subjoin. Our Author, indeed, in that passage in which, short as it is, he is the most explicit, leaves, we may observe, no room for it. “However they began,” says he (speaking of the several forms of government)—“however they began, and by what right soever they subsist, there is and must be in all of them an authority that is absolute.....” To say this, however, of all governments without exception;—to say that no assemblage of men can subsist in a state of government, without being subject to some one body whose authority stands unlimited so much as by convention;—to say, in short, that not even by convention can any limitation be made to the power of that body in a state which in other respects is supreme, would be saying, I take it, rather too much: it would be saying that there is no such thing as government in the German Empire; nor in the Dutch Provinces; nor in the Swiss Cantons: nor was of old in the Achæan league.

XXXV. In this mode of limitation I see not what there is that need surprise us. By what is it that any degree of power (meaning political power) is established? It is neither more nor less, as we have already had occasion to observe,† than a habit of, and disposition to obedience: habit, speaking with respect to past acts; disposition, with respect to future. This disposition it is as easy, or I am much mistaken, to conceive as being absent with regard to one sort of acts, as present with regard to another. For a body, then, which is in other respects supreme, to be conceived as being with respect to a certain sort of acts limited, all that is necessary is, that this sort of acts be in its description distinguishable from every other.

XXXVI. By means of a convention, then, we are furnished with that common signal which, in other cases, we despaired of finding.‡ A certain act is in the instrument of convention specified, with respect to which the government is therein precluded from issuing a law to a certain effect: whether to the effect of commanding the act, of permitting it, or of forbidding it. A law is issued to that effect notwithstanding. The issuing, then, of such a law (the sense of it, and likewise the sense of that part of the convention which provides against it being supposed clear) is a fact notorious and visible to all: in the issuing, then, of such a law, we have a fact which is capable of being taken for that common signal we have been speaking of. These bounds the supreme body in question has marked out to its authority: of such a demarcation, then, what is the effect? Either none at all, or this: that the disposition to obedience confines itself within these bounds. Beyond them the disposition is stopped from extending: beyond them the subject is no more prepared to obey the governing body of his own state, than that of any other. What difficulty, I say, there should be in conceiving a state of things to subsist in which the supreme authority is thus limited,—what greater difficulty in conceiving it with this limitation, than without any, I cannot see. The two states are, I must confess, to me alike conceivable: whether alike expedient,—alike conducive to the happiness of the people, is another question.

XXXVII. God forbid, that from any thing here said it should be concluded that in any society any convention is or can be made, which shall have the effect of setting up an insuperable bar to that which the parties affected shall deem a reformation:—God forbid that any disease in the constitution of a state should be without its remedy. Such might by some be thought to be the case, where that supreme body which in such a convention was one of the contracting parties having incorporated itself with that which was the other, no longer subsists to give any new modification to the engagement. Many ways might however be found to make the requisite alteration, without any departure from the spirit of the engagement. Although that body itself which contracted the engagement be no more, a larger body, from whence the first is understood to have derived its title, may still subsist. Let this larger body be consulted. Various are the ways that might be conceived of doing this, and that without any disparagement to the dignity of the subsisting legislature: of doing it, I mean, to such effect, as that, should the sense of such larger body be favourable to the alteration, it may be made by a law, which, in this case, neither ought to be, nor probably would be, regarded by the body of the people as a breach of the convention.[h]

XXXVIII. To return for a moment to the language used by those who speak of the supreme power as being limited in its own nature. One thing I would wish to have remembered. What is here said of the impropriety, and evil influence of that kind of discourse, is not intended to convey the smallest censure on those who use it, as if intentionally accessary to the ill effects it has a tendency to produce. It is rather a misfortune in the language, than a fault of any person in particular. The original of it is lost in the darkness of antiquity. We inherited it from our fathers, and maugre all its inconveniences, are likely, I doubt, to transmit it to our children.

XXXIX. I cannot look upon this as a mere dispute of words: I cannot help persuading myself, that the disputes between contending parties—between the defenders of a law and the opposers of it, would stand a much better chance of being adjusted than at present, were they but explicitly and constantly referred at once to the principle of utility. The footing on which this principle rests every dispute, is that of matter of fact; that is, future fact—the probability of certain future contingencies. Were the debate, then, conducted under the auspices of this principle, one of two things would happen: either men would come to an agreement concerning that probability, or they would see at length, after due discussion of the real grounds of the dispute, that no agreement was to be hoped for. They would, at any rate, see clearly and explicitly the point on which the disagreement turned. The discontented party would then take their resolution to resist or to submit, upon just grounds, according as it should appear to them worth their while—according to what should appear to them the importance of the matter in dispute—according to what should appear to them the probability or improbability of success—according, in short, as the mischiefs of submission should appear to bear a less, or a greater ratio to the mischiefs of resistance. But the door to reconcilement would be much more open, when they saw that it might be, not a mere affair of passion, but a difference of judgment, and that, for any thing they could know to the contrary, a sincere one, that was the ground of quarrel.

XL. All else is but womanish scolding and childish altercation, which is sure to irritate, and which never can persuade.—I say, the legislature “cannot do this—I say, that it can. I say, that to do this, exceeds the bounds of its authority—I say, it does not.” It is evident, that a pair of disputants setting out in this manner, may go on irritating and perplexing one another for everlasting, without the smallest chance of ever coming to an agreement. It is no more than announcing, and that in an obscure and at the same time a peremptory and captious manner, their opposite persuasions, or rather affections, on a question of which neither of them sets himself to discuss the grounds. The question of utility, all this while, most probably is never so much as at all brought upon the carpet: if it be, the language in which it is discussed is sure to be warped and clouded to make it match with the obscure and entangled pattern we have seen.

XLI. On the other hand, had the debate been originally and avowedly instituted on the footing of utility, the parties might at length have come to an agreement; or at least to a visible and explicit issue.—“I say, that the mischiefs of the measure in question are to such an amount—I say, not so, but to a less.—I say, the benefits of it are only to such an amount—I say, not so, but to a greater.”—This, we see, is a ground of controversy very different from the former. The question is now manifestly a question of conjecture concerning so many future contingent matters of fact: to solve it, both parties then are naturally directed to support their respective persuasions by the only evidence the nature of the case admits of;—the evidence of such past matters of fact as appear to be analogous to those contingent future ones. Now these past facts are almost always numerous: so numerous, that till brought into view for the purpose of the debate, a great proportion of them are what may very fairly have escaped the observation of one of the parties: and it is owing, perhaps, to this and nothing else, that that party is of the persuasion which sets it at variance with the other. Here, then, we have a plain and open road, perhaps, to present reconcilement: at the worst, to an intelligible and explicit issue—that is, to such a ground of difference as may, when thoroughly trodden and explored, be found to lead on to reconcilement at the last. Men, let them but once clearly understand one another, will not be long ere they agree. It is the perplexity of ambiguous and sophistical discourse that, while it distracts and eludes the apprehension, stimulates and inflames the passions,

But it is now high time we should return to our Author, from whose text we have been insensibly led astray, by the nicety and intricacy of the question it seemed to offer to our view.

CHAPTER V.

DUTY OF THE SUPREME POWER TO MAKE LAWS.

I. We now come to the last topic touched upon in this digression: a certain “duty,” which, according to our Author’s account, the supreme power lies under:—the duty of making laws.

II. “Thus far,” says he, “as to the right of the supreme power to make laws; but farther, it is its duty likewise. For since the respective members are bound to conform themselves to the will of the state, it is expedient that they receive directions from the state declaratory of that its will. But since it is impossible, in so great a multitude, to give injunctions to every particular man, relative to each particular action, therefore the state establishes general rules for the perpetual information and direction of all persons, in all points, whether of positive or negative duty. And this, in order that every man may know what to look upon as his own, what as another’s; what absolute and what relative duties are required at his hands; what is to be esteemed honest, dishonest, or indifferent; what degree every man retains of his natural liberty; what he has given up as the price of the benefits of society; and after what manner each person is to moderate the use and exercise of those rights which the state assigns him, in order to promote and secure the public tranquillity.”

III. Still as obscure, still as ambiguous as ever. The “supreme power,” we may remember, according to the definition so lately given of it by our Author, and so often spoken of, is neither more nor less than the power to make laws. Of this power we are now told that it is its “duty” to make laws. Hence we learn—what?—that it is its “duty” to do what it does; to be, in short, what it is. This, then, is what the paragraph now before us, with its apparatus of “fors” and “buts,” and “sinces,” is designed to prove to us. Of this stamp is that meaning, at least, of the initial sentence, which is apparent upon the face of it.

IV. Complete the sense of the phrase, “to make laws;” add to it, in this place, what it wants in order to be an adequate expression of the import which the preceding paragraph seemed to annex to it; you have now, for what is mentioned as the object of the “duty,” another sense indeed, but a sense still more untenable than the foregoing. “Thus far,” says our Author (recapitulating what he had been saying before) “as to the right of the supreme power to make laws.”—By this “right,” we saw, in the preceding chapter, was meant, a right to make laws in all cases whatsoever. “But further,” he now adds, “it is its duty likewise.” Its duty, then, to do—what? to do the same thing that it was before asserted to be its right to do—to make laws in all cases whatsoever: or (to use another word, and that our Author’s own, and that applied to the same purpose) that it is its duty to be “absolute.”* A sort of duty this, which will probably be thought rather a singular one.

V. Meantime the observation which, if I conjecture right, he really had in view to make, is one which seems very just indeed, and of no mean importance, but which is very obscurely expressed, and not very obviously connected with the purport of what goes before. The duty he here means is a duty which respects, I take it, not so much the actual making of laws, as the taking of proper measures to spread abroad the knowledge of whatever laws happen to have been made: a duty which (to adopt some of our Author’s own words) is conversant, not so much about issuing “directions,” as about providing that such as are issued shall be “received.”

VI. Meantime, to speak of the duties of a supreme power;—of a legislature, meaning a supreme legislature;—of a set of men acknowledged to be absolute;—is what, I must own, I am not very fond of. Not that I would wish the subordinate part of the community to be a whit less watchful over their governors, or more disposed to unlimited submission in point of conduct, than if I were to talk with ever so much peremptoriness of the “duties” of these latter, and of the rights which the former have against them:[a] what I am afraid of is, running into solecism and confusion in discourse.

VII. I understand, I think, pretty well, what is meant by the word duty (political duty) when applied to myself; and I could not persuade myself, I think, to apply it in the same sense in a regular didactic discourse to those whom I am speaking of as my supreme governors. That it is my duty to do, which I am liable to be punished, according to law, if I do not do: this is the original, ordinary, and proper sense of the word duty.[b] Have these supreme governors any such duty? No: for if they are at all liable to punishment according to law, whether it be for not doing any thing, or for doing, then are they not, what they are supposed to be, supreme governors:[c] those are the supreme governors, by whose appointment the former are liable to be punished.

VIII. The word duty, then, if applied to persons spoken of as supreme governors, is evidently applied to them in a sense which is figurative and improper: nor, therefore, are the same conclusions to be drawn from any propositions in which it is used in this sense, as might be drawn from them if it were used in the other sense, which is its proper one.

IX. This explanation, then, being premised;—understanding myself to be using the word duty in its improper sense, the proposition that it is the duty of the legislature to spread abroad, as much as possible, the knowledge of their will among the people, is a proposition I am disposed most unreservedly to accede to. If this be our Author’s meaning, I join myself to him heart and voice.

X. What particular institutions our Author wished to see established in this view—what particular duties he would have found for the legislature under this general head of duty, is not very apparent: though it is what should have appeared more precisely than it does, ere his meaning could be apprehended to any purpose. What increases still the difficulty of apprehending it, is a practice which we have already had more than once occasion to detect him in,* —a kind of versatility, than which nothing can be more vexatious to a reader who makes a point of entering into the sentiments of his Author. He sets out with the word “duty” in his mouth; and, in the character of a Censor, with all due gravity begins talking to us of what ought to be. ’Tis in the midst of this lecture that our Proteus slips aside; puts on the historian; gives an insensible turn to the discourse; and without any warning of the change, finishes with telling us what is. Between these two points, indeed, the is, and the ought to be, so opposite as they frequently are in the eyes of other men, that spirit of obsequious quietism that seems constitutional in our Author, will scarce ever let him recognise a difference. ’Tis in the second sentence of the paragraph that he observes that “it is expedient that they” (the people) “receive directions from the state” (meaning the governing body) “declaratory of that its will.” ’Tis in the very next sentence that we learn from him, that what it is thus “expedient” that the state should do, it does do. “But since it is impossible in so great a multitude, to give particular injunctions to every particular man relative to each particular action, therefore,” says he, “the state establishes” (does actually establish) “general rules” (the state generally, any state, that is to say, that one can mention, all states in short whatever, do establish) “general rules for the perpetual information and direction of all persons in all points, whether of positive or of negative duty.” Thus far our Author; so that, for aught appears, whatever he could wish to see done in this view, is done. Neither this state of our own, nor any other, does he wish to see do any thing more in the matter than he sees done already; nay, nor than what is sure to be done at all events: so that happily the duty he is here so forward to lay on his superiors will not sit on them very heavy. Thus far is he from having any determinate instructive meaning in that part of the paragraph in which, to appearance, and by accident, he comes nearest to it.

XI. Not that the passage, however, is absolutely so remote from meaning, but that the inventive complaisance of a commentator of the admiring breed might find it pregnant with a good deal of useful matter. The design of disseminating the knowledge of the laws is glanced at by it, at least with a show of approbation. Were our Author’s writings, then, as sacred as they are mysterious; and were they in the number of those which stamp the seal of authority on whatever doctrines can be fastened on them; what we have read might serve as a text, from which the obligation of adopting as many measures as a man should deem subservient to that design, might, without any unexampled violence, be deduced. In this oracular passage I might find inculcated, if not totidem syllabis, at least totidem literis, as many points of legislative duty as should seem subservient to the purposes of digestion and promulgation. Thus fortified, I might press upon the legislature, and that on the score of “duty,” to carry into execution, and that without delay, many a busy project, as yet either unthought of or unheeded. I might call them with a tone of authority to their work: I bid them go make provision forthwith for the bringing to light such scattered materials as can be found of the judicial decisions of time past,—sole and neglected materials of common law;—for the registering and publishing of all future ones as they arise;—for transforming, by a digest, the body of the common law thus completed, into statute-law;—for breaking down the whole together into codes or parcels, as many as there are classes of persons distinguishably concerned in it;—for introducing to the notice and possession of every person his respective code:—works which public necessity cries aloud for, at which professional interest shudders, and at which legislative indolence* stands aghast.

XII. All these leading points, I say, of legislative economy, with as many points of detail subservient to each as a meditation not unassiduous has suggested, I might enforce, were it necessary, by our Author’s oracular authority. For nothing less than what has been mentioned, I trust, is necessary, in order that every man may be made to know, in the degree in which he might and ought to be made to know, what (in our Author’s words) “to look upon as his own, what as another’s; what absolute and what relative duties are required at his hands; what is to be esteemed honest, dishonest, or indifferent; what degree every man retains of his natural liberty; what he has given up as the price of the benefits of society; and after what manner each person is to moderate the use and exercise of those rights which the state assigns him, in order to promote and secure the public tranquillity.” In taking my leave of our Author, I finish gladly with this pleasing peroration: a scrutinizing judgment, perhaps, would not be altogether satisfied with it; but the ear is soothed by it, and the heart is warmed.

XIII. I now put an end to the tedious and intricate war of words that has subsisted, in a more particular manner during the course of these two last chapters: a logomachy, wearisome enough, perhaps, and insipid to the reader, but beyond description laborious and irksome to the writer. What remedy? Had there been sense, I should have attached myself to the sense: finding nothing but words, to the words I was to attach myself, or to nothing. Had the doctrine been but false, the task of exposing it would have been comparatively an easy one: but it was what is worse, unmeaning; and thence it came to require all these pains which I have been here bestowing on it: to what profit, let the reader judge.

“Well then,” cries an objector, “the task you have set yourself is at an end; and the subject of it, after all, according to your own representation, teaches nothing;—according to your own showing, it is not worth attending to. Why then bestow on it so much attention?”

In this view: To do something to instruct, but more to undeceive, the timid and admiring student:—to excite him to place more confidence in his own strength, and less in the infallibility of great names:—to help him to emancipate his judgment from the shackles of authority:—to let him see that the not understanding a discourse may as well be the writer’s fault as the reader’s:—to teach him to distinguish between shewy language and sound sense:—to warn him not to pay himself with words:—to show him that what may tickle the ear, or dazzle the imagination, will not always inform the judgment:—to show him what it is our Author can do, and has done; and what it is he has not done, and cannot do:—to dispose him rather to fast on ignorance than feed himself with error:—to let him see, that with regard to an expositor of the law, our Author is not he that should come, but that we may be still looking for another.—“Who then,” says my objector, “shall be that other? Yourself?”—No, verily. My mission is at end, when I have prepared the way before him.

FINIS.

[[a] ]I add here the word institutions, for the sake of including rules of Common Law, as well as portions of Statute Law.

[[b] ]Membra condividentia.—Saund. Log. L. I. c. 46.

[[c] ]In practice, the question of Law has commonly been spoken of as opposed to that of fact: but this distinction is an accidental one. That a law commanding or prohibiting such a sort of action, has been established, is as much a fact, as that an individual action of that sort has been committed. The establishment of a Law may be spoken of as a fact, at least for the purpose of distinguishing it from any consideration that may be offered as a reason for such Law.

[[d] ]“Arrogance.” Our Author calls it “the utmost arrogance* to censure what has, at least, a better chance to be right, than the singular notions of any particular man;” meaning thereby certain ecclesiastical institutions. Vibrating, as it should seem, between passion and discretion, he has thought it necessary, indeed, to insert in the sentence that, which being inserted, turns it into nothing: After the word “censure,” “with contempt,” he adds, “and rudeness:” as if there needed a professor to inform us, that to treat any thing with contempt and rudeness is arrogance. “Indecency,” he had already called it, “to set up private judgment in opposition to public;” and this without restriction, qualification, or reserve. This was in the first transport of a holy zeal, before discretion had come in to his assistance. This passage the Doctors Priestley† and Furneaux,‡ who, in quality of Dissenting Ministers, and champious of dissenting opinions, saw themselves particularly attacked in it, have not suffered to pass unnoticed; any more than has the celebrated author of the “Remarks on the Acts of the 13th Parliament,”∥ who found it adverse to his enterprise, for the same reason that is hostile to every other liberal plan of political discussion.

*∗* My edition of the Commentaries happens to be the first: since the above paragraph was written I have been directed to a later. In this later edition, the passage about “indecency” is, like the other about “arrogance,” explained away into nothing. What we are now told is, that “to set up private judgment in [virulent and factious] opposition to public authority” (he might have have added—or to private either) is “indecency.” [See the 5th edit. 8vo. p. 50, as in the 1st.] This we owe, I think, to Dr. Furneaux. The Drs. Furneaux and Priestley, under whose well applied correction our author has smarted so severely, have a good deal to answer for: They have been the means of his adding a good deal of this kind of rhetorical lumber to the plentiful stock there was of it before. One passage, indeed, a passage deeply tinctured with religious gall, they have been the means of clearing away entirely;§ and in this, at least, they have done good service. They have made him sophisticate; they have made him even expunge; but all the Doctors in the world, I doubt, would not bring him to confession. See his Answer to Dr. Priestley.

[[e] ]There is only one way in which censure cast upon the Laws has a greater tendency to do harm than good; and that is when it sets itself to contest their validity; I mean, when abandoning the question of expediency, it sets itself to contest the right. But this is an attack to which old established laws are not so liable. As this is the last, though but too common resource of passion and ill-humour, and what men scarce think of betaking themselves to, unless irritated by personal competitions, it is that to which recent laws are most exposed. I speak of what are called written Laws; for as to unwritten institutions, as there is no such thing as any certain symbol by which their authority is attested, their validity, how deeply rooted soever, is what we see challenged without remorse. A radical weakness, interwoven into the very constitution of all unwritten law.

[[f] ]See note [d].

[[g] ]One may well say rare. It is a matter of fact about which there can be no dispute. The truth of it may be seen in the multitude of Expositors which the Jurisprudence of every nation furnished, ere it afforded a single Censor. When Beccaria came, he was received by the intelligent as an angel from heaven would be by the faithful. He may be styled the father of Censorial Jurisprudence. Montesquieu’s was a work of the mixed kind. Before Montesquieu, all was unmixed barbarism. Grotius and Puffendorf were to Censorial Jurisprudence what the schoolmen were to Natural Philosophy.

[[h] ]A French Jurist of the last age, whose works had like celebrity, and in many respects much the same sort of merits as our Author’s. He was known to most advantage by a translation of Demosthenes. He is now forgotten.

[[i] ]See the ensuing Introduction.

[[k] ]See Note [a].

[[l] ]“Burglary,”* says our Author, “cannot be committed in a tent or a booth erected in a market fair, though the owner may lodge therein; for the Law regards thus highly nothing but permanent edifices: a house, or church; the wall, or gate of a town: and it is the folly of the owner to lodge in so fragile a tenement.” To save himself from this charge of folly, it is not altogether clear which of two things the trader ought to do: quit his business and not go to the fair at all; or leave his goods without any body to take care of them.

[[m] ]Speaking of an Act of Parliament,† “There needs,” he says, “no formal promulgation to give it the force of a Law, as was necessary by the Civil Law with regard to the Emperor’s Edicts: because every man in England is, in judgment of law, party to the making of an act of parliament, being present threat by his representatives.” This, for aught I know, may be good judgment of law; because any thing may be called judgment of law, that comes from a lawyer who has got a name: it seems, however, not much like any thing that can be called judgment of common sense. This notable piece of astutia was originally, I believe, judgment of Lord Coke: it from thence became judgment of our Author: and may have been judgment of more lawyers than I know of before and since. What grieves me is, to find many men of the best affections to a cause which needs no sophistry, bewildered and bewildering others with the like jargon.

[[n] ]His words are:‡ “There must be an actual breaking, not a mere legal clausum fregit (by leaping over invisible ideal boundaries, which may constitute a civil trespass) but a substantial and forcible irruption.” In the next sentence but two, he goes on and says—“But to come down a chimney is held a burglarious entry; for that is as much closed as the nature of things will permit. So also to knock at a door, and upon opening it to rush in, with a felonious intent; or under pretence of taking lodgings, to fall upon the landlord and rob him; or to procure a constable to gain admittance, in order to search for traitors, and then to bind the constable and rob the house: all these entries have been adjudged burglaries, though there was no actual breaking: for the law will not suffer itself to be trifled with by such evasions.” Can it be more egregiously trifled with than by such reasons?

I must own I have been ready to grow out of conceit with these useful little particles, for, because, since, and others of that fraternity, from seeing the drudgery they are continually put to in these Commentaries. The appearance of any of them is a sort of warning to me to prepare for some tautology, or some absurdity: for the same thing dished up over again in the shape of a reason for itself: or for a reason which, if a distinct one, is of the same stamp as those we have just seen. Other instances of the like hard treatment given to these poor particles will come under observation in the body of this essay. As to reasons of the first-mentioned class, of them one might pick out enough to fill a little volume.

[[o] ]“In what I have now said,” says he,∥ “I would not be understood to derogate from the rights of the national Church, or to favour a loose latitude of propagating any crude undigested sentiments in religious matters. Of propagating, I say; for the bare entertaining them, without an endeavour to diffuse them, seems hardly cognizable by any human authority. I only mean to illustrate the excellence of our present Establishment, by looking back to former times. Every thing is now as it should be: unless, perhaps, that heresy ought to be more strictly defined, and no prosecution permitted, even in the Ecclesiastical Courts, till the tenets in question are by proper authority previously declared to be heretical. Under these restrictions it seems necessary for the support of the national religion,” (the national religion being such, we are to understand, as would not be able to support itself were any one at liberty to make objections to it), “that the officers of the Church should have power to censure heretics, but not to exterminate or destroy them.”

*∗* Upon looking into a later edition (the fifth) I find this passage has undergone a modification. After “Every thing is now as it should be,” is added, “with respect to the spiritual cognizance, and spiritual punishment of heresy.” After “the officers of the Church should have power to censure heretics,” is added “but not to harass them with temporal penalties, much less to exterminate or destroy them.”

How far the mischievousness of the original text has been cured by this amendment, may be seen from Dr. Furneaux, Lett. II. p. 30, 2d edit.

[[p] ]1 Comm. 140. I would not be altogether positive, how far it was he meant this persuasion should extend itself in point of time; whether to those institutions only that happen to be in force at the individual instant of his writing: or whether to such opposite institutions also as, within any given distance of time from that instant, either had been in force, or were about to be.

His words are as follows: “All these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints; restraints in themselves so gentle and moderate, as will appear upon further inquiry, that no man of sense or probity would wish to see them slackened. For all of us have it in our choice to do every thing that a good man would desire to do; and are restrained from nothing, but what would be pernicious either to ourselves or our fellow-citizens.

If the reader would know what these rights and liberties are, I answer him out of the same page, they are those, “in opposition to one or other of which every species of compulsive tyranny and oppression must act, having no other object upon which it can possibly be employed.” The liberty, for example, of worshiping God without being obliged to declare a belief in the XXXIX Articles, is a liberty that no “good man,”—“no man of sense or probity,” “would wish” for.

[[q] ]1 Comm. 70. If no reason can be found for an institution, we are to suppose one; and it is upon the strength of this supposed one we are to cry it up as reasonable: it is thus that the law is justified of her children.

The words are—“Not that the particular reason of every rule in the Law can, at this distance of time, be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the Law will presume it to be well founded. And it hath been an ancient observation in the Laws of England,” (he might with as good ground have added—and in all other laws.) “That whenever a standing rule of Law, of which the reason, perhaps, could not be remembered or decerned, hath been [wantonly] broke in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation.”

When a sentiment is expressed, and whether from caution, or from confusion of ideas, a clause is put in, by way of qualifying it, that turns it into nothing; in this case, if we would form a fair estimate of the tendency and probable effect of the whole passage, the way is, I take it, to consider it as if no such clause were there. Nor let this seem strange. Taking the qualification into the account, the sentiment would make no impression on the mind at all: if it makes any, the qualification is dropped, and the mind is affected in the same manner nearly as it would be were the sentiment to stand unqualified.

This, I think, we may conclude to be the case with the passage above mentioned. The word “wantonly” is, in pursuance of our Author’s standing policy, put in by way of salvo. With it the sentiment is as much as comes to nothing: without it, it would be extravagant. Yet in this extravagant form it is, probably, if in any, that it passes upon the reader.

The pleasant part of the contrivance is the mentioning of “Statutes” and “Resolutions,” (Resolutions to wit, that is, Decisions of Courts of Justice) in the same breath; as if whether it were by the one of them or the other that a rule of law was broke in upon, made no difference. By a Resolution indeed, a new Resolution, to break in upon a standing rule, is a practice that in good truth is big with mischief. But this mischief, on what does it depend? Upon the rule’s being a reasonable one? By no means: but upon its being a standing, an established one. Reasonable or not reasonable, is what makes comparatively but a trifling difference.

A new resolution made in the teeth of an old-established rule is mischievous—on what account? In that it puts men’s expectations universally to a fault, and shakes whatever confidence they may have in the stability of any rules of Law, reasonable or not reasonable; that stability on which every thing that is valuable to a man depends. Beneficial be it in ever so high a degree to the party in whose favour it is made, the benefit it is of to him can never be so great as to outweigh the mischief it is of to the community at large. Make the best of it, it is general evil for the sake of partial good. It is what Lord Bacon calls setting the whole house on fire, in order to roast one man’s eggs.

Here, then, the salvo is not wanted: a “new resolution can never be acknowledged to be contrary to a standing rule,” but it must on that very account be acknowledged to be “wanton.” Let such a resolution be made, and “inconveniences” in abundance will sure enough ensue; and then will appear—what? not by any means “the wisdom of the rule,” but, what is a very different thing, the folly of breaking in upon it.

It were almost superfluous to remark, that nothing of all this applies in general to a statute; though particular Statutes may be conceived that would thwart the course of expectation, and by that means produce mischief in the same way in which it is produced by irregular resolutions. A new statute, it is manifest, cannot, unless it be simply a declaratory one, be made in any case, but it must break in upon some standing rule of Law. With regard to a Statute, then, to tell us that a “wanton” one has produced “inconveniences,” what is it but to tell us that a thing that has been mischievous has produced mischief?

Of this temper are the arguments of all those doting politicians, who, when out of humour with a particular innovation without being able to tell why, set themselves to declaim against all innovation, because it is innovation. It is the nature of owls to hate the light: and it is the nature of those politicians who are wise by rote, to detest every thing that forces them either to find (what, perhaps, is impossible) reasons for a favourite persuasion, or (what is not endurable) to discard it.

[[r] ]3 Comm. 268, at the end of ch. xvii., which concludes with three pages against Reformation. Our Author had better, perhaps, on this occasion, have kept clear of allegories: he should have considered whether they might not be retorted on him with severe retaliation. He should have considered, that it is not easier to him to turn the Law into a Castle, than it is to the imaginations of impoverished suitors to people it with harpies. He should have thought of the den of Cacus, to whose enfeebled optics, to whose habits of dark and secret rapine, nothing was so hateful, nothing so dangerous, as the light of day.

[[s] ]3 Comm. 322. It is from the decisions of Courts of Justice that those rules of Law are framed, on the knowledge of which depend the life, the fortune, the liberty of every man in the nation. Of these decisions, the Records are, according to our Author [1 Comm. 71], the most authentic histories. These Records were, till within these five-and-forty years, in Law-Latin: a language which, upon a high computation, about one man in a thousand used to fancy himself to understand. In this Law-Latin it is that our Author is satisfied they should have been continued, because the pyramids of Egypt have stood longer than the temples of Palmyra. He observes to us, that the Latin language could not express itself on the subject, without borrowing a multitude of words from our own: which is to help to convince us, that of the two, the former is the fittest to be employed. He gives us to understand that, taking it altogether, there could be no room to complain of it, seeing it was not more unintelligible than the jargon of the schoolmen, some passages of which he instances; and then he goes on: “This technical Latin continued in use from the time of its first introduction till the subversion of our ancient constitution under Cromwell; when, among many other innovations on the body of the Law, some for the better and some for the worse, the language of our Records was altered and turned into English. But at the Restoration of King Charles, this novelty was no longer countenanced; the practisers finding it very difficult to express themselves so concisely or significantly in any other language but the Latin. And thus it continued, without any sensible inconvenience, till about the year 1730, when it was again thought proper that the proceedings at Law should be done into English, and it was accordingly so ordered by statute 4 Geo. II. c. 26.”

“This was done (continues our Author) in order that the common people might have knowledge and understanding of what was alleged or done for and against them in the process and pleadings, the judgment and entries in a cause. Which purpose I know not how well it has answered; but am apt to suspect that the people are now, after many years experience, altogether as ignorant in matters of law as before.”

In this scornful passage, the words novelty—done into English—apt to suspect—altogether as ignorant—sufficiently speak the affection of the mind that dictated it. It is thus that our Author chuckles over the supposed defeat of the Legislature with a fond exultation which all his discretion could not persuade him to suppress.

The case is this. A large portion of the body of the Law was, by the bigotry or artifice of Lawyers, locked up in an illegible character, and in a foreign tongue. The statute he mentions obliged them to give up their hieroglyphics, and to restore the native language to its rights.

This was doing much; but it was not doing every thing. Fiction, tautology, technicality, circuity, irregularity, inconsistency remain. But above all, the pestilential breath of Fiction poisons the sense of every instrument it comes near.

The consequence is, that the law, and especially that part of it which comes under the topic of Procedure, still wants much of being generally intelligible. The fault, then, of the Legislature is their not having done enough. His quarrel with them is for having done any thing at all. In doing what they did, they set up a light, which, obscured by many remaining clouds, is still but too apt to prove an ignis fatuus: our Author, instead of calling for those clouds to be removed, deprecates all light, and pleads for total darkness.

Not content with representing the alteration as useless, he would persuade us too look upon it as mischievous. He speaks of “inconveniences.” What these inconveniences are, it is pleasant to observe.

In the first place, many young practisers, spoilt by the indulgence of being permitted to carry on their business in their mother-tongue, know not how to read a Record upon the old plan. “Many clerks and attornies,” says our Author, “are hardly able to read, much less to understand a Record of so modern a date as the reign of George the First.”

What the mighty evil is here, that is to outweigh the mischief of almost universal ignorance, is not altogether clear: whether it is, that certain lawyers, in a case that happens very rarely, may be obliged to get assistance: or that the business in such a case may pass from those who do not understand it to those who do.

In the next place, he observes to us, “it has much enhanced the expense of all legal proceedings: for since the practisers are confined (for the sake of the stamp-duties, which are thereby considerably increased) to write only a stated number of words in a sheet; and as the English language, through the multitude of its particles, is much more verbose than the Latin; it follows, that the number of sheets must be very much augmented by the change.”

I would fain persuade myself, were it possible, that this unhappy sophism could have passed upon the inventor. The sum actually levied on the public on that score is, upon the whole, either a proper sum, or it is not. If it is, why mention it as an evil? If it is not, what more obvious remedy than to set the duties lower?

After all, what seems to be the real evil, notwithstanding our Author’s unwillingness to believe it, is, that by means of this alteration, men at large are in a somewhat better way of knowing what their Lawyers are about: and that a disinterested and enterprising Legislator, should happily such an one arise, would now with somewhat less difficulty be able to see before him.

[* ]Vide infra, ch. iii. par. 7, p. 103.

[[t] ]In the seventh chapter of the first book, the King has “attributes;”† he possesses “ubiquity;”‡ he is “all-perfect and immortal.”∥

These childish paradoxes, begotten upon servility by false wit, are not more adverse to manly sentiment, than to accurate apprehension. Far from contributing to place the institutions they are applied to in any clear point of view, they serve but to dazzle and confound, by giving to Reality the air of Fable. It is true, they are not altogether of our Author’s invention; it is he, however, that has revived them, and that with improvements and additions.

One might be apt to suppose they were no more than so many transient flashes of ornament: it is quite otherwise. He dwells upon them in sober sadness. The attribute of “ubiquity,” in particular, he lays hold of, and makes it the basis of a chain of reasoning. He spins it out into consequences; he makes one thing “follow” from it, and another thing be so and so “for the same reason:” and he uses emphatic terms, as if for fear he should not be thought to be in earnest. “From the ubiquity,” says our Author [1 Comm. p. 260], “it follows, that the King can never be nonsuit; for a nonsuit is the desertion of the suit or action by the non-appearance of the plaintiff in Court.”—“For the same reason also the King is not said to appear by his Attorney, as other men do: for he always appears in contemplation of law in his own proper person.”

This is the case so soon as you come to this last sentence of the paragraph. For so long as you are at the last but two, “it is the regal office, and not the royal person, that is always present.” All this is so dryly and so strictly true, that it serves as the groundwork of a metaphor that is brought in to embellish and enliven it. The king, we see, is, that is to say, is not present in Court. The king’s judges are present too. So far is plain downright truth. These judges, then, speaking metaphorically, are so many looking-glasses, which have this singular property, that when a man looks at them, instead of seeing his own face in them, he sees the king’s. “His judges,” says our Author, “are the mirror by which the king’s image is reflected.”

[[v] ]The word demonstration may here seem, at first sight, to be out of place. It will be easily perceived that the sense here put upon it is not the same with that in which it is employed by logicians and mathematicians. In our own language, indeed, it is not very familiar in any other sense than theirs: but on the Continent it is currently employed in many other sciences. The French, for example, have their demonstrateurs de botanique, d’anatomie, de physique expérimentale, &c. I use it out of necessity; not knowing of any other that will suit the purpose.

[[w] ]Let this be taken for a truth upon the authority of Aristotle: I mean by those who like the authority of Aristotle better than that of their own experience. Πασα τεχνη, says that philosopher, ϰαιπασα μεθοδος’ ὁμοιως δε πϱαξις τε ϰαι πϱοαιϱεσις, αγαθου τινος εφιεσθαι δοϰει’ διο ϰαλως απεφηναντο ταγαθον, ου παντα εφιεται. Διαφοϱα δε τις φαινεται των (understand) υοιȣϛως ΤΕΛΩΝ.—Arist. Eth. ad Nic. L. I. c. 1.

[[x] ]Offences, the reader will remember, may as well be offences of omission, as of commission. I would avoid the embarrassment of making separate mention of such laws as exert themselves in commanding. ’Tis on this account I use the phrase “mode of conduct,” which includes omissions or forbearances, as well as acts.

[[y] ]See note [ee.]

[[z] ]See note [x]

[[aa] ]Technical reasons: so called from the Greek τεχνη, which signifies an art, science, or profession.

Utility is that standard to which men in general (except in here and there an instance where they are deterred by prejudices of the religious class, or hurried away by the force of what is called sentiment or feeling)—utility, as we have said, is the standard to which they refer a law or institution in judging of its title to approbation or disapprobation. Men of Law, corrupted by interests, or seduced by illusions, which it is not here our business to display, have deviated from it much more frequently, and with much less reserve. Hence it is that such reasons as pass with Lawyers, and with no one else, have got the name of technical reasons; reasons peculiar to the art, peculiar to the profession.

[[bb] ]The reason of a Law, in short, is no other than the good produced by the mode of conduct which it enjoins, or (which comes to the same thing) the mischief produced by the mode of conduct which it prohibits. This mischief, or this good, if they be real, cannot but show themselves somewhere or other in the shape of pain or pleasure.

[[cc] ]See in the Synoptical Table prefixed to our Author’s Analysis, the last page comprehending Book IV.

[* ]It is that which comprises his fourth Book, intitled Public Wrongs.

[[dd] ]Fragmenta methodi naturalis.—LinnæiPhil. Bot. Tit. Systemata, par. 77.

[[ee] ]This title affords a pertinent instance to exemplify the use that a natural arrangement may be of, in repelling an incompetent institution. What I mean is the sort of filthiness that is termed unnatural. This our Author has ranked in his class of Offences against “personal security,” and, in a subdivision of it, intitled “Corporal Injuries.” In so doing, then, he has asserted a fact: he has asserted that the offence in question is an offence against personal security; is a corporal injury; is, in short, productive of unhappiness in that way. Now this is what, in the case where the act is committed by consent, is manifestly not true. Volenti non fit injuria. If then the Law against the offence in question had no other title to a place in the system than what was founded on this fact, it is plain it would have none. It would be a bad law altogether. The mischief the offence is of to the community in this case is in truth of quite another nature, and would come under quite another class. When against consent, there indeed it does belong really to this class: but then it would come under another name. It would come under that of Rape.

[[ff] ]I think it is Selden, somewhere in his Table-talk, that speaks of a whimsical notion he had hit upon when a schoolboy, that with regard to Cæsar and Justin, and those other personages of antiquity that gave him so much trouble, there was not a syllable of truth in any thing they said, nor in fact were there ever really any such persons; but that the whole affair was a contrivance of parents to find employment for their children. Much the same sort of notion is that which these technical arrangements are calculated to give us of Jurisprudence: which in them stands represented rather as a game at Crambo for Lawyers to whet their wits at, than as that Science which holds in her hands the happiness of nations.

Let us, however, do no man wrong. Where the success has been worse, the difficulty was greater. That detestable chaos of institutions which the analyst last mentioned had to do with, is still more embarrassed with a technical nomenclature than our own.

[* ]3 Comm. ch. xxiii. p. 387.

[† ]2 Comm. ch. xxi. p. 360.

[[gg] ]The difference between a generous and determined affection, and an occasional, and as it were forced contribution, to the cause of Reformation, may be seen, I think, in these Commentaries, compared with another celebrated work on the subject of our Jurisprudence. Mr. Barrington, whose agreeable miscellany has done so much towards opening men’s eyes upon this subject—Mr. Barrington, like an active general in the service of the public, storms the strongholds of chicane, wheresoever they present themselves, and particularly fictions, without reserve. Our Author, like an artful partisan in the service of the profession, sacrifices a few, as if it were to save the rest.

Deplorable, indeed, would have been the student’s chance for salutary instruction, did not Mr. Barrington’s work in so many instances furnish the antidote to our Author’s poisons.

[* ]This Preface was first printed in 1828, during Mr. Bentham’s lifetime.

[* ]See Codification, Proposal, Appendix xi. Acceptance given by the Portuguese Cortes to the offer of an all-comprehensive code.

[* ]Sir Evan Nepean, successively Under-Secretary of State, and Secretary to the Admiralty. Since this sheet was sent to press, his decease has been announced in the newspapers.

[* ]See Morning Chronicles of July 6 and July 10, 1776.

[† ]See D.’s Second Letter. By “a great deal,” D. informs us that he “means much logical and ambi-dextrous sense.” These phrases are to explain the less intelligible one of “a great deal.” Who shall explain the explainer? Not I; rather will I follow his sagacious hint, and say nothing about them; lest—to borrow his own language—I should “traduce from the merits,” and “derogate from the defects of them.”

[* ]After the appearance of this letter, intimation (I understood from Lind) was conveyed from Blackstone or his friends to the author of this defence, that the matter (it was thought) had better be dropt. Lind being intimate with Lord Mansfield, and at that time not with any other man who was in the way to know, it was from that quarter, I imagine, that the information was derived.

[* ]In Mr. Bentham’s own copy of this work he has made the following note:—“This was the very first publication by which men at large were invited to break loose from the trammels of authority and ancestor-wisdom on the field of law.

[* ]1 Comm. p. 47.

[[a] ]To make sure of doing our Author no injustice, and to show what it is that he thought would “naturally lead us into” this “inquiry,” it may be proper to give the paragraph containing the explanation above mentioned. It is as follows:—“But farther: Municipal Law is a rule of civil conduct, prescribed by the supreme power in a state.” “For Legislature, as was before observed, is the greatest act of superiority that can be exercised by one being over another, Wherefore it is requisite, to the very essence of a Law, that it be made” (he might have added, “or at least supported”) “by the supreme power. Sovereignty and Legislature are indeed convertible terms; one cannot subsist without the other.” 1 Comm. p. 46.

[† ]1 Comm. p. 47.

[* ]Vide supra, p. II.

[† ]1 Com. p. 47, supra, p. 6.

[‡ ]Ib. p. 7.

[∥ ]Ib. p. 8.

[§ ]1 Com. p. 48, supra, p. 8.

[¶ ]Ib. p. 46, supra, p. 7.

[** ]1 Comm. p. 52.

[* ]Vide infra, par. 12, note [b].

[[b] ][b] 1. A habit is but an assemblage of acts: under which name I would also include, for the present, voluntary forbearances.

2. A habit of obedience, then, is an assemblage of acts of obedience.

3. An act of obedience is any act done in pursuance of an expression of will on the part of some superior.

4. An act ofpoliticalobedience (which is what is here meant) is any act done in pursuance of an expression of will on the part of a person governing.

5. An expression of will is either parole or tacit.

6. A parole expression of will is that which is conveyed by the signs called words.

7. A tacit expression of will is that which is conveyed by any other signs whatsoever: among which none are so efficacious as acts of punishment, annexed in time past, to the non-performance of acts of the same sort with those that are the objects of the will that is in question.

8. A parole expression of the will of a superior is a command.

9. When a tacit expression of the will of a superior is supposed to have been uttered, it may be styled a fictitious command.

10. Were we at liberty to coin words after the manner of the Roman lawyers, we might say a ♓ quasi-command.

11. The Statute Law is composed of commands: the Common Law, of ♓ quasi-commands.

12. An act which is the object of a command actual or fictitious; such an act, considered before it is performed, is styled a duty or a point of duty.

13. These definitions premised, we are now in a condition to give such an idea, of what is meant by the perfection or imperfection of a habit of obedience in a society, as may prove tolerably precise.

14. A period in the duration of the society; the number of persons it is composed of during that period; and the number of points of duty incumbent on each person being given;—the habit of obedience will be more or less perfect, in the ratio of the number of acts of obedience to those of disobedience.

15. The habit of obedience in this country appears to have been more perfect in the time of the Saxons than in that of the Britons: unquestionably it is more so now than in the time of the Saxons. It is not yet so perfect, as well contrived and well digested laws in time, it is to be hoped, may render it: but absolutely perfect, till man ceases to be man, it never can be.

A very ingenious and instructive view of the progress of nations, from the least perfect states of political union to that highly perfect state of it in which we live, may be found in Lord Kames’ Historical Law Tracts.

16. For the convenience and accuracy of discourse, it may be of use, in this place, to settle the signification of a few other expressions relative to the same subject. Persons who, with respect to each other, are in a state of political society, may be said also to be in a state of political union or connexion.

17. Such of them as are subjects may, accordingly, be said to be in a state of submission, or of subjection, with respect to governors: such as are governors, in a state of authority with respect to subjects.

18. When the subordination is considered as resulting originally from the will, or (it may be more proper to say) the pleasure of the party governed, we rather use the word “submission:” when from that of the party governing, the word “subjection.” On this account it is that the term can scarcely be used without apology, unless with a note of disapprobation: especially in this country, where the habit of considering the consent of the persons governed as being in some sense or other involved in the notion of all lawful, that is, all commendable government, has gained so firm a ground. It is on this account, then, that the term “subjection,” excluding as it does, or, at least, not including such consent, is used commonly in what is called a bad sense: that is, in such a sense as, together with the idea of the object in question, conveys the accessary idea of disapprobation. This accessary idea, however, annexed as it is to the abstract term “subjection,” does not extend itself to the concrete term “subjects”—a kind of inconsistency of which there are many instances in language.

[[c] ]It is true that every person must, for some time at least after his birth, necessarily be in a state of subjection with respect to his parents, or those who stand in the place of parents to him; and that a perfect one, or at least as near to being a perfect one, as any that we see. But for all this, the sort of society that is constituted by a state of subjection thus circumstanced, does not come up to the idea that, I believe, is generally entertained by those who speak of a political society. To constitute what is meant in general by that phrase, a greater number of members is required, or, at least, a duration capable of a longer continuance. Indeed, for this purpose, nothing less, I take it, than an indefinite duration is required. A society, to come within the notion of what is ordinarily meant by a political one, must be such as, in its nature, is not incapable of continuing for ever in virtue of the principles which gave it birth. This, it is plain, is not the case with such a family society, of which a parent, or a pair of parents, are at the head. In such a society, the only principle of union which is certain and uniform in its operation, is the natural weakness of those of its members that are in a state of subjection; that is, the children: a principle which has but a short and limited continuance. I question whether it be the case even with a family society, subsisting in virtue of collateral consanguinity; and that for the like reason. Not but that even in this case a habit of obedience, as perfect as any we see examples of, may subsist for a time; to wit, in virtue of the same moral principles which may protract a habit of filial obedience beyond the continuance of the physical ones which gave birth to it: I mean affection, gratitude, awe, the force of habit, and the like. But it is not long, even in this case, before the bond of connexion must either become imperceptible, or lose its influence by being too extended.

These considerations, therefore, it will be proper to bear in mind in applying the definition of political society above given [in par. 10] and in order to reconcile it with what is said further on [in par. 17.]

[[d] ]The kingdom of Naples is feudatory to the Papal See: and in token of fealty, the King, at his accession, presents the Holy Father with a white horse. The royal vassal sometimes treats his lord but cavalierly: but always sends him his white horse.

[* ]Vide supra, par. 13, note [c].

[[e] ]Upon recollection, I have some doubt whether this example would be found historically exact. If not, that of the defection of the Nabobs of Indostan may answer the purpose. My first choice fell upon the former; supposing it to be rather better known.

[[f] ]1. Disobedience may be said to be unconscious with respect to the fact, when the party is ignorant either of his having done the act itself, which is forbidden by the law, or else of his having done it in those circumstances, in which alone it is forbidden.

2. Disobedience may be said to be unconscious with respect to the law, when, although he may know of his having done the act that is in reality forbidden, and that under the circumstances in which it is forbidden, he knows not of its being forbidden, or at least of its being forbidden in these circumstances.

3. So long as the business of spreading abroad the knowledge of the law continues to lie in the neglect in which it has lain hitherto, instances of disobedience unconscious with respect to the law can never be otherwise than abundant.

[[g] ]If examples be thought necessary, Theft may serve for an example of fraudulent disobedience; Robbery of forcible. In Theft, the person of the disobedient party, and the act of disobedience, are both endeavoured to be kept secret. In Robbery, the act of disobedience, at least, if not the person of him who disobeys, is manifest and avowed.

[[h] ]1. In the third volume of his TreatiseonHuman Nature.

Our Author, one would think, had never so much as opened that celebrated book: of which the criminality in the eyes of some, and the merits in the eyes of others, have since been almost effaced by the splendour of more recent productions of the same pen. The magnanimity of our Author scorned, perhaps, or his circumspection feared, to derive instruction from an enemy: or, what is still more probable, he knew not that the subject had been so much as touched upon by that penetrating and acute metaphysician, whose works lie so much out of the beaten tract of Academic reading. But here, as it happens, there is no matter for such fears. Those men who are most alarmed at the dangers of a free inquiry; those who are most intimately convinced that the surest way to truth is by hearing nothing but on one side, will, I dare answer almost, find nothing of that which they deem poison in this third volume. I would not wish to send the reader to any other than this, which, if I recollect aright, stands clear of the objections that have of late been urged, with so much vehemence, against the work in general.* As to the two first, the Author himself, I am inclined to think, is not ill-disposed, at present, to join with those who are of opinion, that they might, without any great loss to the science of Human Nature, be dispensed with. The like might be said, perhaps, of a considerable part, even of this. But after all retrenchments, there will still remain enough to have laid mankind under indelible obligations. That the foundations of all virtue are laid in utility, is there demonstrated, after a few exceptions made, with the strongest force of evidence: but I see not, any more than Helvetius saw, what need there was for the exceptions.

2. For my own part, I well remember, no sooner had I read that part of the work which touches on this subject, than I felt as if scales had fallen from my eyes. I then, for the first time, learned to call the cause of the People the cause of Virtue.

Perhaps a short sketch of the wanderings of a raw but well-intentioned mind, in its researches after moral truth, may, on this occasion, be not unuseful: for the history of one mind is the history of many. The writings of the honest, but prejudiced, Earl of Clarendon, to whose integrity nothing was wanting, and to whose wisdom little but the fortune of living something later; and the contagion of a monkish atmosphere: these, and other concurrent causes, had listed my infant affections on the side of despotism. The Genius of the place I dwelt in, the authority of the State, the voice of the Church in her solemn offices: all these taught me to call Charles a Martyr, and his opponents rebels. I saw innovation, where indeed innovation, but a glorious innovation, was, in their efforts to withstand him. I saw falsehood, where indeed falsehood was, in their disavowals of innovation. I saw selfishness, and an obedience to the call of passion, in the efforts of the oppressed to rescue themselves from oppression. I saw strong countenance lent in the sacred writings to Monarchic government; and none to any other. I saw passive obedience deep stamped with the seal of the Christian Virtues of humility and self-denial.

Conversing with lawyers, I found them full of the virtues of their Original Contract, as a recipe of sovereign efficacy for reconciling the accidental necessity of resistance with the general duty of submission. This drug of theirs they administered to me to calm my scruples. But my unpractised stomach revolted against their opiate. I bid them open to me that page of history in which the solemnization of this important contract was recorded. They shrunk from this challenge; nor could they, when thus pressed, do otherwise than our Author has done, confess the whole to be a fiction. This, methought, looked ill. It seemed to me the acknowledgement of a bad cause, the bringing a fiction to support it. “To prove fiction, indeed,” said I, “there is need of fiction; but it is the characteristic of truth to need no proof but truth. Have you then really any such privilege as that of coining facts? You are spending argument to no purpose. Indulge yourselves in the licence of supposing that to be true which is not, and as well may you suppose that proposition itself to be true, which you wish to prove, as that other whereby you hope to prove it.” Thus continued I, unsatisfying and unsatisfied, till I learnt to see that utility was the test and measure of all virtue; of loyalty as much as any: and that the obligation to minister to general happiness was an obligation paramount to and inclusive of every other. Having thus got the instruction I stood in need of, I sat down to make my profit of it. I bid adieu to the original contract: and I left it to those to amuse themselves with this rattle, who could think they needed it.

[[i] ]A compact or contract (for the two words, on this occasion at least, are used in the same sense) may, I think, be defined a pair of promises, by two persons reciprocally given, the one promise in consideration of the other.

[[k] ]The importance which the observance of promises is of to the happiness of society, is placed in a very striking and satisfactory point of view, in a little apologue of Montesquieu, entitled, The History of the Troglodytes.* The Troglodytes are a people who pay no regard to promises. By the natural consequences of this disposition, they fall from one scene of misery into another; and are at last exterminated. The same Philosopher, in his Spirit of Laws, copying and refining upon the current jargon, feigns a a law for this and other purposes, after defining a Law to be a relation. How much more instructive on this head is the fable of the Troglodytes, than the pseudo-metaphysical sophistry of the Esprit des Loix!

[* ]Vide supra, par. 38, note [i].

[[l] ]To this denomination, has of late been added, or substituted, the greatest-happiness or greatest-felicity principle: this for shortness, instead of saying at length, that principle which states the greatest happiness of all those whose interest is in question, as being the right and proper, and only right and proper and universally desirable, end of human action: of human action in every situation; and, in partitular, in that of a functionary, or set of functionaries, exercising the powers of Government. The word utility does not so clearly point to the ideas of pleasure and pain, as the words happiness and felicity do: nor does it lead us to the consideration of the number of the interests affected; of the number, as being the circumstance which contributes, in the largest proportion, to the formation of the standard here in question—the standard of right and wrong, by which alone the propriety of human conduct, in every situation, can with propriety be tried.

This want of a sufficiently manifest connexion between the ideas of happiness and pleasure on the one hand, and the idea of utility on the other, I have every now and then found operating, and with but too much efficiency, as a bar to the acceptance, that might otherwise have been given, to this principle.

For further elucidation of the principle of utility, or say greatest-happiness principle, it may be some satisfaction to the reader, to see a note, inserted in a second edition, now printing, of a later work of the Author’s, entitled, “An Introduction to the Principles of Morals and Legislation.” In Chapter I., subjoined to paragraph 13, is a note in these words:—“The principle of utility,” I have heard it said, “is a dangerous principle: it is dangerous on certain occasions to consult it.” This is as much as to say—what? that it is not consonant to utility, to consult utility; in short, that it is not consulting it, to consult it.

In the second edition, to this note is added the following paragraph:—

Explanation, written 12th July 1822, relative to the above note.

Not long after the publication of the Fragment on Government, anno 1776, in which, in the character of an all-comprehensive and all-commanding principle, the principle of utility was brought to view, one person by whom observation to the above effect was made was Alexander Wedderburne, at that time Attorney or Solicitor-General, afterwards successively Chief-Justice of the Common Pleas, and Chancellor of England, under the successive titles of Lord Loughborough and Earl of Rosslyn. It was made—not indeed in my hearing, but in the hearing of a person by whom it was almost immediately communicated to me. So far from being self-contradictory, it was (I now see and confess) a shrewd and perfectly true one. By that distinguished functionary, the state of the Government was thoroughly understood; by the obscure individual, at that time, not so much as supposed to be so: his disquisitions had not been as yet applied, with any thing like a comprehensive view, to the field of Constitutional Law, nor therefore to those features of the English Government, by which the greatest happiness of the ruling one, with or without that of a favoured few, are now so plainly seen to be the only ends to which the course of it has at any time been directed. The principle of utility was an appellative, at that time employed—employed by me, as it has been by others, to designate that which, in a more perspicuous and instructive manner, may as above be designated by the name of the greatest-happiness principle. “This principle,” said Wedderburne, “is a dangerous one.” Saying so, he said that which, to a certain extent, is strictly true: a principle, which lays down, as the only right and justifiable end of Government, the greatest happiness of the greatest number—how can it be denied to be a dangerous one? dangerous to every Government, which has for its actual end or object, the greatest happiness of a certain one, with or without the addition of some comparatively small number of others, whom it is matter of pleasure or accommodation to him to admit, each of them, to a share in the concern, on the footing of so many junior partners. “Dangerous,” it therefore really was to the interest—the sinister interest of all those functionaries, himself included, whose interest it was to maximize delay, vexation, and expense, in judicial and other modes of procedure, for the sake of the profit extractible out of the expense. In a Government which had for its end in view the greatest happiness of the greatest number, Alexander Wedderburne might have been Attorney-General and then Chancellor; but he would not have been Attorney-General with £15,000 a-year, nor Chancellor with a peerage, with a veto upon all justice, with £25,000 a year, and with 500 sinecures at his disposal, under the name of Ecclesiastical Benefices besides et cæteras.”—Note of the Author’s, 12th July 1822.

[[a] ]This is what there would be occasion to show at large, were what he says of Law in general, and of the Laws of Nature and Revelation in particular, to be examined.

[* ]1 Comm. p. 48.

[[b] ]Vide infra, par. 32. Monarchy, which is the government of one, “is the most powerful form of government,” he says, “of any:” more so than Democracy, which he describes as being the Government of all.

[* ]Comm. p. 50.

[† ]Par. 32.

[[c] ]By the laws of Germany, such and such states are to furnish so many men to the general army of the empire: some of them so many men and one-half; others, so many and one-third: others again, if I mistake not, so many and one-fourth. One of these half, third part, or quarter men, suppose, possesses himself of the Government: here, then, we have a kind of corruption of a Monarchy. Is this what our Author had in view?

[[d] ]A more suitable place to look for corruption in, if we may take his own word for it, there cannot be. “Every man’s reason,” he assures us,† “is corrupt;” and not only that, but “his understanding full of ignorance and error.” With regard to others, it were as well not to be too positive; but with regard to a man’s self, what he tells us from experience, it would be ill manners to dispute with him.

[* ]1 Comm. p. 48.

[* ]See Hawkesworth’sVoyages.

[[e] ]The condition of these imaginary sovereigns puts one in mind of the story of I forget what King’s Fool. The Fool had stuck himself up one day, with great gravity, in the King’s throne; with a stick, by way of a sceptre, in one hand, and a ball in the other: being asked what he was doing? he answered, “reigning.” Much the same sort of reign, I take it, would be that of the members of our Author’s Democracy.

[† ]Vide supra, ch. i. par. 6.

[[f] ]What is curious is, that the same persons who tell you (having read as much) that Democracy is a form of Government under which the supreme power is vested in all the members of a state, will also tell you (having also read as much) that the Athenian Commonwealth was a Democracy. Now the truth is, that in the Athenian Commonwealth, upon the most moderate computation, it is not one-tenth part of the inhabitants of the Athenian state that ever at a time partook of the supreme power: women, children, and slaves, being taken into the account.* Civil Lawyers, indeed, will tell you, with a grave face, that a slave is nobody; as Common Lawyers will, that a bastard is the son of nobody. But, to an unprejudiced eye, the condition of a state is the condition of all individuals, without distinction, that compose it.

[[a] ]By fiscal power I mean that which in this country is exercised by what is called the Board of Treasury.

[[b] ]By dispensatorial power I mean as well that which is exercised by the Board of Treasury, as those others which are executed in the several offices styled with us the War Office, Admiralty Board, Navy Board, Board of Ordnance, and Board of Works: excepting from the business of all these offices, the power of appointing persons to fill other subordinate offices; a power which seems to be of a distinct nature from that of making disposition of any article of public property.

Power, political power, is either over persons or over things. The powers, then, that have been mentioned above, in as far as they concern things, are powers over such things as are the property of the public: powers which differ in this from those which constitute private ownership, in that the former are, in the main, not beneficial (that is, to the possessors themselves) and indiscriminate; but fiduciary, and limited in their exercise to such acts as are conducive to the special purposes of public benefit and security.

[[c] ]“The Lords spiritual and temporal, which,” says our Author (p. 50), “is an aristocratical assembly of persons selected for their piety, their birth, their wisdom, their valour, or their property,”—I have distributed, I think, these endowments, as our Author could not but intend they should be distributed. Birth, to such of the members of that assembly as have their seat in it by descent; and, as to those who may chance from time to time to sit there by creation, wisdom, valour, and property in common among the temporal Peers; and piety, singly but entirely, among my Lords the Bishops. As to the other three endowments, if there were any of them to which these right reverend persons could lay any decent claim, it would be wisdom: but since worldly wisdom is what it would be an ill compliment to attribute to them, and the wisdom which is from above is fairly included under piety, I conclude that, when secured in the exclusive possession of this grand virtue, they have all that was intended them. There is a remarkable period in our history, at which, measuring by our Author’s scale, these three virtues seem to have been at the boiling point. It was in Queen Anne’s reign, not long after the time of the hard frost. I mean in the year 1711. In that auspicious year, these three virtues issued forth, it seems, with such exuberance, as to furnish merit enough to stock no fewer than a dozen respectable persons, who, upon the strength of it, were all made Barons in a day. Unhappily, indeed, so little read was a right reverend and cotemporary historian* in our Author’s method of “discerning of spirits,” as to fancy it was neither more nor less than the necessity of making a majority that introduced so large a body of new members thus suddenly into the house. But I leave it to those who are read in the history of that time, to judge of the ground there can be for so romantic an imagination. As to piety, the peculiar endowment of the mitre, the stock there is of that virtue, should, to judge by the like standard, be, at all times, pretty much upon a level: at all times, without question, at a maximum. This is what we can make the less doubt of, since, with regard to ecclesiastical matters in general, our Author, as in another place he assures us, has had the happiness to find that “every thing is as it should be.”†

[* ]P. 50.

[† ]Vide supra, par. 9.

[[i] ]Every body has heard the story of him who, from a fisherman, was made Archbishop, and then Pope. While Archbishop, it was his custom every day, after dinner, to have a fishing net spread upon his table, by way of a memento, as he used to say, of the meanness of his original. This farcial ostentation of humility was what, in those days, contributed not a little to the increase of his reputation. Soon after his exaltation to St. Peter’s chair, one of his intimates was taking notice to him, one day, when dinner was over, of the table’s not being decked as usual. “Peace,” answered the Holy Father; “when the fish is caught, there is no occasion for the net.”

[[k] ]In the House of Commons itself, is it by the opulent and independent country gentlemen that the chief business of the House is transacted, or by aspiring, and perhaps needy Courtiers? The man who would persevere in the toil of Government, without any other reward than the favour of the people, is certainly the man for the people to make choice of. But such men are at best but rare. Were it not for those children of Corruption we have been speaking of, the business of the state, I doubt, would stagnate.

[[l] ]It is what he says of Theology with respect to the Sciences.—V. Augm. Scient. L. VIII. c. iii. p. 97.

[* ]Vide supra.

[* ]Vide supra, par. 7.

[[a] ]One thing in the paragraph we are considering is observable; it is the concluding sentence, in which he brings together the ideas of law and will. Here, then, in the tail of a digression, he comes nearer in fact, though without being aware of it, to the giving a just and precise idea of a law, than in any part of the definition itself from whence he is digressing. If, instead of saying that a law is a will, he had called it the expression of a will, and that sort of expression of a will which goes by the name of a command, his definition would, so far as this goes, have been clear as well as right. As it is, it is neither the one nor the other. But of this more, if at all, in another place. The definition of law is a matter of too much nicety and importance to be dispatched in a note.

[* ]1 Comm. p. 47.

[† ]1 Comm. p. 48; supra, ch. ii. par. 11.

[[b] ]Another passage or two there is, which might seem to glance the same way: but these I pass over as less material, after those which we have seen.

[* ]1 Comm. p. 42.

[[c] ]It is that of murder. In the word here chosen, there lurks a fallacy which makes the proposition the more dangerous, as it is the more plausible. It is too important to be altogether passed over: at the same time that a slight hint of it, in this place, is all that can be given. Murder is killing under certain circumstances.—Is the human law, then, to be allowed to define, in dernier resort, what shall be those circumstances, or is it not? If yes, the case of “a human law allowing or enjoining us to commit it,” is a case that is not so much as supposable: if no, adieu to all human laws: to the fire with our Statutes at large, our Reports, our Institutes, and all that we have hitherto been used to call our law books; our law books, the only law books we can be safe in trusting to, are Puffendorf and the Bible.

[[d] ]According to our Author, indeed, it should be to no purpose to make any separate mention of the two laws; since the Divine Law, he tells us, is but “a part of” that of Nature.* Of consequence, with respect to that part, at least, which is common to both, to be contrary to the one, is, of course, to be contrary to the other.

[[e] ]This is what there would be occasion to show more at large in examining some former parts of this section.

[* ]Ch. i.

[† ]See ch. v. par. 7, note [b.]

[[f] ]This respects the case where one state has, upon terms, submitted itself to the government of another: or where the governing bodies of a number of states agree to take directions, in certain specified cases, from some body or other that is distinct from all of them; consisting of members, for instance, appointed out of each.

[[g] ]Notwithstanding what has been said, it would be in vain to dissemble but that, upon occasion, an appeal of this sort may very well answer, and has, indeed, in general, a tendency to answer, in some sort, the purposes of those who espouse, or profess to espouse, the interests of the people. A public and authorized debate on the propriety of the law is by this means brought on. The artillery of the tongue is played off against the law, under cover of the law itself. An opportunity is gained of impressing sentiments unfavourable to it, upon a numerous and attentive audience. As to any other effects from such an appeal, let us believe, that in the instances in which we have seen it made, it is the certainty of miscarriage that has been the encouragement to the attempt.

[* ]Vide supra, par. 26.

[† ]Vide supra, ch. i. par. 13, note [b.]

[‡ ]Vide supra, par. 22.

[[h] ]In Great Britain, for instance, suppose it were deemed necessary to make an alteration in the act of Union. If in an article stipulated in favour of England, there need be no difficulty, so that there were a majority for the alteration among the English members, without reckoning the Scotch. The only difficulty would be with respect to an article stipulated in favour of Scotland; on account, to wit, of the small number of the Scotch members, in comparison with the English. In such a case, it would be highly expedient, to say no more, for the sake of preserving the public faith, and to avoid irritating the body of the nation, to take some method for making the establishment of the new law depend upon their sentiments. One such method might be as follows:—Let the new law in question be enacted in the common form; but let its commencement be deferred to a distant period, suppose a year or two: let it then, at the end of that period, be in force, unless petitioned against by persons of such a description, and in such number, as might be supposed fairly to represent the sentiments of the people in general; persons, for instance, of the description of those who at the time of the Union, constituted the body of electors. To put the validity of the law out of dispute, it would be necessary the fact upon which it was made ultimately to depend, should be in its nature too notorious to be controverted. To determine, therefore, whether the conditions upon which the invalidation of it was made to depend, had been complied with, is what must be left to the simple declaration of some person or persons; for instance, the King. I offer this only as a general idea, and as one amongst many that perhaps might be offered in the same view. It will not be expected that I should here answer objections, or enter into details.

[* ]Comm. p. 49.

[[a] ]With this note let no man trouble himself, who is not used, or does not intend to use himself, to what are called metaphysical speculations; in whose estimation the benefit of understanding clearly what he is speaking of, is not worth the labour.

1. That may be said to be my duty to do (understand political duty) which you (or some other person or persons) have a right to have me made to do. I have, then, a dutytowards you: you have a right as against me.

2. What you have a right to have me made to do (understand a political right) is that which I am liable, according to law, upon a requisition made on your behalf, to be punished for not doing.

3. I say punished: for without the notion of punishment (that is, of pain annexed to an act, and accruing on a certain account, and from a certain source) no notion can we have of either right or duty.

4. Now the idea belonging to the word pain is a simple one. To define, or rather (to speak more generally) to expound a word, is to resolve, or to make a progress towards resolving, the idea belonging to it into simple ones.

5. For expounding the words duty, right, power, title, and those other terms of the same stamp that abound so much in ethics and jurisprudence, either I am much deceived, or the only method by which any instruction can be conveyed, is that which is here exemplified. An exposition framed after this method I would term paraphrasis.

6. A word may be said to be expounded by paraphrasis, when not that word alone is translated into other words, but some whole sentence, of which it forms a part, is translated into another sentence; the words of which latter are expressive of such ideas as are simple, or are more immediately resolvable into simple ones than those of the former. Such are those expressive of substances and simple modes, in respect of such abstract terms as are expressive of what Locke has called mixed modes. This, in short, is the only method in which any abstract terms can, at the long run, be expounded to any instructive purpose; that is, in terms calculated to raise images either of substances perceived, or of emotions;—sources, one or other of which every idea must be drawn from, to be a clear one.

7. The common method of defining—the method per genus et differentiam, as logicians call it, will, in many cases, not at all answer the purpose. Among abstract terms we soon come to such as have no superior genus. A definition, per genus et differentiam, when applied to these, it is manifest, can make no advance: it must either stop short, or turn back, as it were, upon itself, in a circulate or a repetend.

8. “Fortitude is a virtue:”—Very well:—but what is a virtue? “A virtue is a disposition:”—Good again:—but what is a disposition? “A disposition is a - - -;” and there we stop. The fact is, a disposition has no superior genus: a disposition is not a - - -, anything:—this is not the way to give us any notion of what is meant by it. “A power,” again, “is a right:” and what is a right? It is a power. An estate is an interest, says our Author somewhere, where he begins defining an estate:—as well might he have said an interest was an estate. As well, in short, were it to define in this manner, a conjunction or a preposition. As well were it to say of the preposition through, or of the conjunction because; a through is a - - -, or a because is a - - -, and so go on defining them.

9. Of this stamp, by the bye, are some of his most fundamental definitions; of consequence they must leave the reader where they found him. But of this, perhaps, more fully and methodically on some future occasion. In the mean time, I have thrown out these loose hints for the consideration of the curious.

[[b] ]1. One may conceive three sorts of duties; political, moral, and religious; correspondent to the three sorts of sanctions by which they are enforced; or the same point of conduct may be a man’s duty on these three several accounts. After speaking of the one of these to put the change upon the reader, and without warning begin speaking of another, or not to let it be seen from the first which of them one is speaking of, cannot but be productive of confusion.

2. Political duty is created by punishment; or at least by the will of persons who have punishment in their hands; persons stated and certain,—political superiors.

3. Religious duty is also created by punishment: by punishment expected at the hands of a person certain,—the Supreme Being.

4. Moral duty is created by a kind of motive, which, from the uncertainty of the persons to apply it, and of the species and degree in which it will be applied, has hardly yet got the name of punishment: by various mortifications resulting from the ill-will of persons uncertain and variable,—the community in general; that is, such individuals of that community as he, whose duty is in question, shall happen to be connected with.

5. When in any of these three senses a man asserts a point of conduct to be a duty, what he asserts is the existence, actual or probable, of an external event; viz. of a punishment issuing from one or other of these sources in consequence of a contravention of the duty: an event extrinsic to, and distinct from, as well the conduct of the party spoken of, as the sentiment of him who speaks:—if he persists in asserting it to be a duty, but without meaning it should be understood that it is on any one of these three accounts that he looks upon it as such; all he then asserts is his own internal sentiment: all he means then is, that he feels himself pleased or displeased at the thoughts of the point of conduct in question, but without being able to tell why. In this case, he should e’en say so: and not seek to give an undue influence to his own single suffrage, by delivering it in terms that purport to declare the voice either of God, or of the law, or of the people.

6. Now which of all these senses of the word our Author had in mind; in which of them all he meant to assert that it was the duty of supreme governors to make laws, I know not. Political duty is what they cannot be subject to:* and to say that a duty even of the moral or religous kind to this effect is incumbent on them, seems rather a precipitate assertion.

In truth, what he meant was neither more nor less, I suppose, than that he should be glad to see them do what he is speaking of; to wit, “make laws;” that is, as he explains himself, spread abroad the knowledge of them.—Would he so? So indeed should I; and if asked why, what answer our Author would give I know not; but I, for my part, have no difficulty. I answer,—because I am persuaded that it is for the benefit of the community that they (its governors) should do so. This would be enough to warrant me in my own opinion for saying that they ought to do it. For all this, I should not, at any rate, say that is was their duty in a political sense. No more should I venture to say it was in a moral or religious sense, till I were satisfied whether they themselves thought the measures useful and feasible, and whether they were generally supposed to think so.

Were I satisfied that they themselves thought so, God then, I might say, knows they do. God, we are to suppose, will punish them if they neglect pursuing it. It is then their religious duty. Were I satisfied that the people supposed they thought so: the people, I might say, in case of such neglect,—the people, by various manifestations of its ill-will, will also punish them. It is then their moral duty.

In any of these senses, it must be observed, there can be no more propriety in averring it to be the duty of the supreme power to pursue the measure in question, than in averring it to be their duty to pursue any other supposable measure equally beneficial to the community. To usher in the proposal of a measure in this peremptory and assuming guise, may be pardonable in a loose rhetorical harangue, but can never be justifiable in an exact didactic composition. Modes of private moral conduct there are indeed many, the tendency whereof is so well known and so generally acknowledged, that the observance of them may be well styled a duty. But to apply the same term to the particular details of legislative conduct, especially newly proposed ones, is going, I think, too far, and tends only to confusion.

[[c] ]I mean for what they do, or omit to do, when acting in a body: in that body in which, when acting, they are supreme. Because for any thing any of them do separately, or acting in bodies that are subordinate, they may any of them be punished without any disparagement to their supremacy. Not only any may be, but many are: it is what we see examples of every day.

[* ]Vide supra, ch. ii. par. 11, ch. iii. par. 7, ch. iv. par. 10.

[* ]Had I seen in those days what every body has seen since, instead of indolence I should have put corruption.—Note of the Author, 1822.

[[d] ]“Arrogance.” Our Author calls it “the utmost arrogance* to censure what has, at least, a better chance to be right, than the singular notions of any particular man;” meaning thereby certain ecclesiastical institutions. Vibrating, as it should seem, between passion and discretion, he has thought it necessary, indeed, to insert in the sentence that, which being inserted, turns it into nothing: After the word “censure,” “with contempt,” he adds, “and rudeness:” as if there needed a professor to inform us, that to treat any thing with contempt and rudeness is arrogance. “Indecency,” he had already called it, “to set up private judgment in opposition to public;” and this without restriction, qualification, or reserve. This was in the first transport of a holy zeal, before discretion had come in to his assistance. This passage the Doctors Priestley† and Furneaux,‡ who, in quality of Dissenting Ministers, and champious of dissenting opinions, saw themselves particularly attacked in it, have not suffered to pass unnoticed; any more than has the celebrated author of the “Remarks on the Acts of the 13th Parliament,”∥ who found it adverse to his enterprise, for the same reason that is hostile to every other liberal plan of political discussion.

*∗* My edition of the Commentaries happens to be the first: since the above paragraph was written I have been directed to a later. In this later edition, the passage about “indecency” is, like the other about “arrogance,” explained away into nothing. What we are now told is, that “to set up private judgment in [virulent and factious] opposition to public authority” (he might have have added—or to private either) is “indecency.” [See the 5th edit. 8vo. p. 50, as in the 1st.] This we owe, I think, to Dr. Furneaux. The Drs. Furneaux and Priestley, under whose well applied correction our author has smarted so severely, have a good deal to answer for: They have been the means of his adding a good deal of this kind of rhetorical lumber to the plentiful stock there was of it before. One passage, indeed, a passage deeply tinctured with religious gall, they have been the means of clearing away entirely;§ and in this, at least, they have done good service. They have made him sophisticate; they have made him even expunge; but all the Doctors in the world, I doubt, would not bring him to confession. See his Answer to Dr. Priestley.

[[l] ]“Burglary,”* says our Author, “cannot be committed in a tent or a booth erected in a market fair, though the owner may lodge therein; for the Law regards thus highly nothing but permanent edifices: a house, or church; the wall, or gate of a town: and it is the folly of the owner to lodge in so fragile a tenement.” To save himself from this charge of folly, it is not altogether clear which of two things the trader ought to do: quit his business and not go to the fair at all; or leave his goods without any body to take care of them.

[[m] ]Speaking of an Act of Parliament,† “There needs,” he says, “no formal promulgation to give it the force of a Law, as was necessary by the Civil Law with regard to the Emperor’s Edicts: because every man in England is, in judgment of law, party to the making of an act of parliament, being present threat by his representatives.” This, for aught I know, may be good judgment of law; because any thing may be called judgment of law, that comes from a lawyer who has got a name: it seems, however, not much like any thing that can be called judgment of common sense. This notable piece of astutia was originally, I believe, judgment of Lord Coke: it from thence became judgment of our Author: and may have been judgment of more lawyers than I know of before and since. What grieves me is, to find many men of the best affections to a cause which needs no sophistry, bewildered and bewildering others with the like jargon.

[[n] ]His words are:‡ “There must be an actual breaking, not a mere legal clausum fregit (by leaping over invisible ideal boundaries, which may constitute a civil trespass) but a substantial and forcible irruption.” In the next sentence but two, he goes on and says—“But to come down a chimney is held a burglarious entry; for that is as much closed as the nature of things will permit. So also to knock at a door, and upon opening it to rush in, with a felonious intent; or under pretence of taking lodgings, to fall upon the landlord and rob him; or to procure a constable to gain admittance, in order to search for traitors, and then to bind the constable and rob the house: all these entries have been adjudged burglaries, though there was no actual breaking: for the law will not suffer itself to be trifled with by such evasions.” Can it be more egregiously trifled with than by such reasons?

I must own I have been ready to grow out of conceit with these useful little particles, for, because, since, and others of that fraternity, from seeing the drudgery they are continually put to in these Commentaries. The appearance of any of them is a sort of warning to me to prepare for some tautology, or some absurdity: for the same thing dished up over again in the shape of a reason for itself: or for a reason which, if a distinct one, is of the same stamp as those we have just seen. Other instances of the like hard treatment given to these poor particles will come under observation in the body of this essay. As to reasons of the first-mentioned class, of them one might pick out enough to fill a little volume.

[[o] ]“In what I have now said,” says he,∥ “I would not be understood to derogate from the rights of the national Church, or to favour a loose latitude of propagating any crude undigested sentiments in religious matters. Of propagating, I say; for the bare entertaining them, without an endeavour to diffuse them, seems hardly cognizable by any human authority. I only mean to illustrate the excellence of our present Establishment, by looking back to former times. Every thing is now as it should be: unless, perhaps, that heresy ought to be more strictly defined, and no prosecution permitted, even in the Ecclesiastical Courts, till the tenets in question are by proper authority previously declared to be heretical. Under these restrictions it seems necessary for the support of the national religion,” (the national religion being such, we are to understand, as would not be able to support itself were any one at liberty to make objections to it), “that the officers of the Church should have power to censure heretics, but not to exterminate or destroy them.”

*∗* Upon looking into a later edition (the fifth) I find this passage has undergone a modification. After “Every thing is now as it should be,” is added, “with respect to the spiritual cognizance, and spiritual punishment of heresy.” After “the officers of the Church should have power to censure heretics,” is added “but not to harass them with temporal penalties, much less to exterminate or destroy them.”

How far the mischievousness of the original text has been cured by this amendment, may be seen from Dr. Furneaux, Lett. II. p. 30, 2d edit.

[[t] ]In the seventh chapter of the first book, the King has “attributes;”† he possesses “ubiquity;”‡ he is “all-perfect and immortal.”∥

These childish paradoxes, begotten upon servility by false wit, are not more adverse to manly sentiment, than to accurate apprehension. Far from contributing to place the institutions they are applied to in any clear point of view, they serve but to dazzle and confound, by giving to Reality the air of Fable. It is true, they are not altogether of our Author’s invention; it is he, however, that has revived them, and that with improvements and additions.

One might be apt to suppose they were no more than so many transient flashes of ornament: it is quite otherwise. He dwells upon them in sober sadness. The attribute of “ubiquity,” in particular, he lays hold of, and makes it the basis of a chain of reasoning. He spins it out into consequences; he makes one thing “follow” from it, and another thing be so and so “for the same reason:” and he uses emphatic terms, as if for fear he should not be thought to be in earnest. “From the ubiquity,” says our Author [1 Comm. p. 260], “it follows, that the King can never be nonsuit; for a nonsuit is the desertion of the suit or action by the non-appearance of the plaintiff in Court.”—“For the same reason also the King is not said to appear by his Attorney, as other men do: for he always appears in contemplation of law in his own proper person.”

This is the case so soon as you come to this last sentence of the paragraph. For so long as you are at the last but two, “it is the regal office, and not the royal person, that is always present.” All this is so dryly and so strictly true, that it serves as the groundwork of a metaphor that is brought in to embellish and enliven it. The king, we see, is, that is to say, is not present in Court. The king’s judges are present too. So far is plain downright truth. These judges, then, speaking metaphorically, are so many looking-glasses, which have this singular property, that when a man looks at them, instead of seeing his own face in them, he sees the king’s. “His judges,” says our Author, “are the mirror by which the king’s image is reflected.”

[[h] ]1. In the third volume of his TreatiseonHuman Nature.

Our Author, one would think, had never so much as opened that celebrated book: of which the criminality in the eyes of some, and the merits in the eyes of others, have since been almost effaced by the splendour of more recent productions of the same pen. The magnanimity of our Author scorned, perhaps, or his circumspection feared, to derive instruction from an enemy: or, what is still more probable, he knew not that the subject had been so much as touched upon by that penetrating and acute metaphysician, whose works lie so much out of the beaten tract of Academic reading. But here, as it happens, there is no matter for such fears. Those men who are most alarmed at the dangers of a free inquiry; those who are most intimately convinced that the surest way to truth is by hearing nothing but on one side, will, I dare answer almost, find nothing of that which they deem poison in this third volume. I would not wish to send the reader to any other than this, which, if I recollect aright, stands clear of the objections that have of late been urged, with so much vehemence, against the work in general.* As to the two first, the Author himself, I am inclined to think, is not ill-disposed, at present, to join with those who are of opinion, that they might, without any great loss to the science of Human Nature, be dispensed with. The like might be said, perhaps, of a considerable part, even of this. But after all retrenchments, there will still remain enough to have laid mankind under indelible obligations. That the foundations of all virtue are laid in utility, is there demonstrated, after a few exceptions made, with the strongest force of evidence: but I see not, any more than Helvetius saw, what need there was for the exceptions.

2. For my own part, I well remember, no sooner had I read that part of the work which touches on this subject, than I felt as if scales had fallen from my eyes. I then, for the first time, learned to call the cause of the People the cause of Virtue.

Perhaps a short sketch of the wanderings of a raw but well-intentioned mind, in its researches after moral truth, may, on this occasion, be not unuseful: for the history of one mind is the history of many. The writings of the honest, but prejudiced, Earl of Clarendon, to whose integrity nothing was wanting, and to whose wisdom little but the fortune of living something later; and the contagion of a monkish atmosphere: these, and other concurrent causes, had listed my infant affections on the side of despotism. The Genius of the place I dwelt in, the authority of the State, the voice of the Church in her solemn offices: all these taught me to call Charles a Martyr, and his opponents rebels. I saw innovation, where indeed innovation, but a glorious innovation, was, in their efforts to withstand him. I saw falsehood, where indeed falsehood was, in their disavowals of innovation. I saw selfishness, and an obedience to the call of passion, in the efforts of the oppressed to rescue themselves from oppression. I saw strong countenance lent in the sacred writings to Monarchic government; and none to any other. I saw passive obedience deep stamped with the seal of the Christian Virtues of humility and self-denial.

Conversing with lawyers, I found them full of the virtues of their Original Contract, as a recipe of sovereign efficacy for reconciling the accidental necessity of resistance with the general duty of submission. This drug of theirs they administered to me to calm my scruples. But my unpractised stomach revolted against their opiate. I bid them open to me that page of history in which the solemnization of this important contract was recorded. They shrunk from this challenge; nor could they, when thus pressed, do otherwise than our Author has done, confess the whole to be a fiction. This, methought, looked ill. It seemed to me the acknowledgement of a bad cause, the bringing a fiction to support it. “To prove fiction, indeed,” said I, “there is need of fiction; but it is the characteristic of truth to need no proof but truth. Have you then really any such privilege as that of coining facts? You are spending argument to no purpose. Indulge yourselves in the licence of supposing that to be true which is not, and as well may you suppose that proposition itself to be true, which you wish to prove, as that other whereby you hope to prove it.” Thus continued I, unsatisfying and unsatisfied, till I learnt to see that utility was the test and measure of all virtue; of loyalty as much as any: and that the obligation to minister to general happiness was an obligation paramount to and inclusive of every other. Having thus got the instruction I stood in need of, I sat down to make my profit of it. I bid adieu to the original contract: and I left it to those to amuse themselves with this rattle, who could think they needed it.

[[k] ]The importance which the observance of promises is of to the happiness of society, is placed in a very striking and satisfactory point of view, in a little apologue of Montesquieu, entitled, The History of the Troglodytes.* The Troglodytes are a people who pay no regard to promises. By the natural consequences of this disposition, they fall from one scene of misery into another; and are at last exterminated. The same Philosopher, in his Spirit of Laws, copying and refining upon the current jargon, feigns a a law for this and other purposes, after defining a Law to be a relation. How much more instructive on this head is the fable of the Troglodytes, than the pseudo-metaphysical sophistry of the Esprit des Loix!

[[d] ]A more suitable place to look for corruption in, if we may take his own word for it, there cannot be. “Every man’s reason,” he assures us,† “is corrupt;” and not only that, but “his understanding full of ignorance and error.” With regard to others, it were as well not to be too positive; but with regard to a man’s self, what he tells us from experience, it would be ill manners to dispute with him.

[[f] ]What is curious is, that the same persons who tell you (having read as much) that Democracy is a form of Government under which the supreme power is vested in all the members of a state, will also tell you (having also read as much) that the Athenian Commonwealth was a Democracy. Now the truth is, that in the Athenian Commonwealth, upon the most moderate computation, it is not one-tenth part of the inhabitants of the Athenian state that ever at a time partook of the supreme power: women, children, and slaves, being taken into the account.* Civil Lawyers, indeed, will tell you, with a grave face, that a slave is nobody; as Common Lawyers will, that a bastard is the son of nobody. But, to an unprejudiced eye, the condition of a state is the condition of all individuals, without distinction, that compose it.

[[c] ]“The Lords spiritual and temporal, which,” says our Author (p. 50), “is an aristocratical assembly of persons selected for their piety, their birth, their wisdom, their valour, or their property,”—I have distributed, I think, these endowments, as our Author could not but intend they should be distributed. Birth, to such of the members of that assembly as have their seat in it by descent; and, as to those who may chance from time to time to sit there by creation, wisdom, valour, and property in common among the temporal Peers; and piety, singly but entirely, among my Lords the Bishops. As to the other three endowments, if there were any of them to which these right reverend persons could lay any decent claim, it would be wisdom: but since worldly wisdom is what it would be an ill compliment to attribute to them, and the wisdom which is from above is fairly included under piety, I conclude that, when secured in the exclusive possession of this grand virtue, they have all that was intended them. There is a remarkable period in our history, at which, measuring by our Author’s scale, these three virtues seem to have been at the boiling point. It was in Queen Anne’s reign, not long after the time of the hard frost. I mean in the year 1711. In that auspicious year, these three virtues issued forth, it seems, with such exuberance, as to furnish merit enough to stock no fewer than a dozen respectable persons, who, upon the strength of it, were all made Barons in a day. Unhappily, indeed, so little read was a right reverend and cotemporary historian* in our Author’s method of “discerning of spirits,” as to fancy it was neither more nor less than the necessity of making a majority that introduced so large a body of new members thus suddenly into the house. But I leave it to those who are read in the history of that time, to judge of the ground there can be for so romantic an imagination. As to piety, the peculiar endowment of the mitre, the stock there is of that virtue, should, to judge by the like standard, be, at all times, pretty much upon a level: at all times, without question, at a maximum. This is what we can make the less doubt of, since, with regard to ecclesiastical matters in general, our Author, as in another place he assures us, has had the happiness to find that “every thing is as it should be.”†

[[d] ]According to our Author, indeed, it should be to no purpose to make any separate mention of the two laws; since the Divine Law, he tells us, is but “a part of” that of Nature.* Of consequence, with respect to that part, at least, which is common to both, to be contrary to the one, is, of course, to be contrary to the other.

[[b] ]1. One may conceive three sorts of duties; political, moral, and religious; correspondent to the three sorts of sanctions by which they are enforced; or the same point of conduct may be a man’s duty on these three several accounts. After speaking of the one of these to put the change upon the reader, and without warning begin speaking of another, or not to let it be seen from the first which of them one is speaking of, cannot but be productive of confusion.

2. Political duty is created by punishment; or at least by the will of persons who have punishment in their hands; persons stated and certain,—political superiors.

3. Religious duty is also created by punishment: by punishment expected at the hands of a person certain,—the Supreme Being.

4. Moral duty is created by a kind of motive, which, from the uncertainty of the persons to apply it, and of the species and degree in which it will be applied, has hardly yet got the name of punishment: by various mortifications resulting from the ill-will of persons uncertain and variable,—the community in general; that is, such individuals of that community as he, whose duty is in question, shall happen to be connected with.

5. When in any of these three senses a man asserts a point of conduct to be a duty, what he asserts is the existence, actual or probable, of an external event; viz. of a punishment issuing from one or other of these sources in consequence of a contravention of the duty: an event extrinsic to, and distinct from, as well the conduct of the party spoken of, as the sentiment of him who speaks:—if he persists in asserting it to be a duty, but without meaning it should be understood that it is on any one of these three accounts that he looks upon it as such; all he then asserts is his own internal sentiment: all he means then is, that he feels himself pleased or displeased at the thoughts of the point of conduct in question, but without being able to tell why. In this case, he should e’en say so: and not seek to give an undue influence to his own single suffrage, by delivering it in terms that purport to declare the voice either of God, or of the law, or of the people.

6. Now which of all these senses of the word our Author had in mind; in which of them all he meant to assert that it was the duty of supreme governors to make laws, I know not. Political duty is what they cannot be subject to:* and to say that a duty even of the moral or religous kind to this effect is incumbent on them, seems rather a precipitate assertion.

In truth, what he meant was neither more nor less, I suppose, than that he should be glad to see them do what he is speaking of; to wit, “make laws;” that is, as he explains himself, spread abroad the knowledge of them.—Would he so? So indeed should I; and if asked why, what answer our Author would give I know not; but I, for my part, have no difficulty. I answer,—because I am persuaded that it is for the benefit of the community that they (its governors) should do so. This would be enough to warrant me in my own opinion for saying that they ought to do it. For all this, I should not, at any rate, say that is was their duty in a political sense. No more should I venture to say it was in a moral or religious sense, till I were satisfied whether they themselves thought the measures useful and feasible, and whether they were generally supposed to think so.

Were I satisfied that they themselves thought so, God then, I might say, knows they do. God, we are to suppose, will punish them if they neglect pursuing it. It is then their religious duty. Were I satisfied that the people supposed they thought so: the people, I might say, in case of such neglect,—the people, by various manifestations of its ill-will, will also punish them. It is then their moral duty.

In any of these senses, it must be observed, there can be no more propriety in averring it to be the duty of the supreme power to pursue the measure in question, than in averring it to be their duty to pursue any other supposable measure equally beneficial to the community. To usher in the proposal of a measure in this peremptory and assuming guise, may be pardonable in a loose rhetorical harangue, but can never be justifiable in an exact didactic composition. Modes of private moral conduct there are indeed many, the tendency whereof is so well known and so generally acknowledged, that the observance of them may be well styled a duty. But to apply the same term to the particular details of legislative conduct, especially newly proposed ones, is going, I think, too far, and tends only to confusion.

[* ]4 Comm. p. 50.

[† ]See Remarks, &c.

[‡ ]See Letters to Mr. Justice Blackstone, 1771. Second Edition.

[∥ ]In the Preface.

[§ ]See Furneaux, Letter VII.

[* ]4 Comm. ch. xvi. p. 226.

[† ]1 Comm. ch. ii. p. 178.

[‡ ]4 Comm. ch. xvi. p. 226.

[∥ ]4 Comm. ch. iv. p. 49.

[† ]1 Comm. 242.

[‡ ]1 Comm. ch. vii. p. 234, 238, 242. First Edition.

[∥ ]1 Comm. ch. vii. p. 260. First Edition.

[* ]By Dr. Beattie, in his Essay on the Immutability of Truth.

[* ]See the collection of his Works.

[† ]1 Comm. p. 41.

[* ]See, among Mr. Hume’sEssays, that on the Populousness of Ancient Nations.

[* ]See Bishop Burnet’s History of his own Times, vol. 2.

[† ]Vol. 4, chap. iv. p. 49.

[* ]1 Comm. p. 42.

[* ]See the note following.