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CHAPTER IV.: RIGHT OF THE SUPREME POWER TO MAKE LAWS. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 1.
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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.
[[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.
[[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.
[* ]1 Comm. p. 42.