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.

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.

PRINCIPLES OF THE CIVIL CODE.

INTRODUCTION.

Of all the branches of legislation, the Civil Code is that which presents the fewest attractions to those who do not study the law as a profession. This assertion is not strong enough, since this branch has hitherto almost inspired a species of disgust. Curiosity has for a long time been ardently directed to the consideration of political economy, penal law, and the principles of government. Celebrated works have rendered these studies respectable; and upon pain of acknowledging a humiliating inferiority to those around us, it is necessary that these should be understood, and an opinion be formed respecting them.

But the Civil Law has never yet passed the obscure bounds of the Bar. Its commentators sleep in the dust of the libraries, by the side of their opponents. The public are ignorant even of the names of the sects that divide them, and regard with a silent respect the numerous folios, the enormous compilations, ornamented with the pompous titles of Body of Laws and Universal Jurisprudence, &c.

The general dislike to this study is the result of the manner in which it has been treated. All these works occupy the same place in the science of law, which was once occupied by the works of the schoolmen in the natural sciences, before the establishment of experimental philosophy. Those who attribute their dryness and their obscurity to the nature of their subject, show them too great an indulgence.

Indeed, to what does this part of the laws refer? It treats of every thing which is most interesting to men:—of their security, of their property, of their reciprocal and daily transactions, of their domestic condition in the relations of father, husband, child. It is here we behold the rise of Rights and Obligations, for all the objects of law may be reduced to these two terms, and there is then no mystery.

The civil code is at bottom only the penal code under another aspect: it is not possible to understand the one, without understanding the other. The establishment of Rights is the granting of permissions, and the issuing of prohibitions: in a word, it is the creation of offences. To commit an offence is, on the one hand, to violate an obligation—on the other hand, a right. To commit a private offence is to violate an obligation due to an individual—a right which he has over us. To commit a public offence is to violate an obligation due to the public—a right which the public have over us. Civil law is therefore only penal law considered under another aspect. If I consider the law at the moment it confers a right or imposes an obligation, I consider it in a civil point of view. If I consider the law in its sanctions, in its effects, with respect to a violated right or broken obligation, I consider it in a penal point of view.

What, then, is meant by Principles of Civil Law? We intend to express the motives of the laws—the knowledge of the true reasons which ought to guide the legislator in the distribution of the rights he confers, or the obligations he imposes upon individuals.

In the whole library of writings upon the civil law, we search in vain for one which has had for its object the exhibition of the reasons upon which it is founded: philosophy has never entered there. The Theory of Civil Law by Linguet, which promises much, is far from deserving its title: it is the production of an unregulated imagination, governed by a bad heart. An oriental despotism is the model to which he would reduce all the European governments, that he might correct all their notions of liberty and humanity, which seem like mournful spectres to torment him.

The disputes of jurisprudence have produced, even in its schools, a set of doubters, who have doubted whether they had any principles. According to them, every thing is arbitrary—the law is good, because it is law: because a decision, whatever it may be, produces the great benefit of peace. There is in this opinion a little truth, and a great deal of error. It will be seen in the following work, that the principle of utility extends over this portion of the laws, as well as over all the others, but that its application is difficult—that it requires an intimate knowledge of human nature.

The first ray of light which broke in upon Mr. Bentham in his legal studies was, that the law of Nature—the original Compact—the moral Sense—the notions of Right and Wrong, which had been employed for the explanation of the laws, were only at bottom those innate ideas whose falsehood had been so ably demonstrated by Mr. Locke. He saw that they revolved in a vicious circle. Familiarized with the method of Bacon and of Newton, he resolved to introduce it into legislation: he has made it an experimental science: he has discarded all dogmatic words; he has rejected all terms that do not express some sensation of pleasure or of pain. For example, he will not admit that property is an inherent right—a natural right; because these terms explain nothing, prove nothing. The terms Justice and Injustice have in his eyes the same inconvenience of prejudging, instead of illuminating, the questions to which they refer. When he proposes to establish a law, he does not pretend to have discovered a corresponding law in the law of nature, and by a common trick present that as already done, which still remains to be done. When he explains obligations, he does not envelope them in mysterious reasons; he admits nothing on supposition. He clearly shows that every obligation ought to be founded either upon some previous service received by the person on whom it is imposed, or on some superior need on the part of the person in whose favour it is imposed, or upon some mutual agreement which derives all its force from its utility. Thus always guided by experience and observation, he only considers the effects which the laws produce upon the faculties of man as a sensible being, and he always assigns pains to be avoided as the only arguments of real value.

The Civilians never leave off reasoning upon fictions, and giving these fictions the same effect as realities. For example, they admit of contracts, which never existed; of quasi contracts, which never had the appearance of existing. In certain cases, they admit a civil death: in other cases, they deny natural death. Such a dead man is not dead, such another living man is not living; such an one who is absent ought to be considered as present, such an one who is present ought to be considered as absent: a province is not where it is; a country does not belong to those to whom it belongs; men are sometimes only things, and as such cannot possess rights; things are sometimes beings which possess rights, and are bound by obligations. They recognise imprescriptible rights which have always been prescribed against, and unalienable rights which have always been alienated; and that which is not, is always more distinctly visible to their eyes than that which is, Take away their fictions, or rather their lies, they know not where they are: accustomed to these crutches, they cannot walk without them. Mr. Bentham has rejected all these puerile arguments: he has not one gratuitous supposition, not one arbitrary definition—not a reason which is not the expression of a fact, not a fact which is not drawn from an effect of the law, either good or bad.

It is by this method of always reasoning consistently with his principles, that he has made the Civil Law a new science: new and even paradoxical to those who have been educated in the opinions of the ancient schools; but simple, natural, and even familiar, to those who have not been misled by false systems. Hence a translation of this book would have in all languages the same meaning and the same force, because it appeals to the experience of all men, instead of technical reasons—of reasons founded upon abstract terms, upon arbitrary definitions, which possess only a local value, and consist only of words, which disappear when no synonyms are found by which to translate them. It is thus the savage Africans, who make use of shells for money, discover their poverty immediately that they pass their own frontiers, and wish to exchange their conventional riches with strangers.

In Mr. Bentham’s MSS. there are frequent references to the laws of England. As his observations would often have appeared to want a foundation, if I had not mentioned the particular laws against which they were directed, I have endeavoured, for the purpose of clearness, to develope that which was only an allusion to the original. I may have made some mistakes: these ought not to be imputed to the Author. These laws are in general so difficult to understand, that it is dangerous for an Englishman, who is not a lawyer, to hazard an opinion respecting them, and much more so, therefore, for one who is not an Englishman.

Dumont

PART I.—

OBJECTS OF THE CIVIL LAW.*

[* ]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.

[* ]The following work is edited from the Traités de Legislation, as published by Dumont, and the original MSS. of Bentham.

[[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.

[* ]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.