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PRINCIPLES OF THE CIVIL CODE. - 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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PRINCIPLES OF THE CIVIL CODE.
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.
OBJECTS OF THE CIVIL LAW.*
OF RIGHTS AND OBLIGATIONS.
Every thing which the legislator is called upon to distribute among the members of the community, may be reduced to two classes:
Rights are in themselves advantages; benefits for him who enjoys them: obligations, on the other hand, are duties; burthensome charges for him who has to fulfil them.
Rights and obligations, though distinct and opposite in their nature, are simultaneous in their origin, and inseparable in their existence. According to the nature of things, the law cannot grant a benefit to any, without, at the same time, imposing a burthen on some one else; or, in other words, a right cannot be created in favour of any one, without imposing a corresponding obligation on another. In what manner is a right of property in land conferred on me? By imposing upon every body except myself the obligation not to touch its produce. How is the right of commanding conferred on me? By imposing upon a district, or a number of persons, the obligation to obey me.
The legislator ought to confer rights with pleasure, since they are in themselves a benefit; he ought to impose obligations with repugnance, since they are in themselves an evil. In accordance with the principle of utility, he ought never to impose a burthen but that he may confer a benefit of a greater value.
In the same proportion as it creates obligations, the law curtails liberty: it converts into offences, acts which would otherwise be permitted and unpunishable. The law creates an offence, either by a positive commandment or by a prohibition.
These curtailments of liberty are inevitable. It is impossible to create rights, to impose obligations, to protect the person, life, reputation, property, subsistence, or liberty itself, but at the expense of liberty.
But every restraint imposed upon liberty is liable to be followed by a natural feeling of pain, more or less great, independent of an infinite variety of inconveniences and sufferings which may result from the particular mode of this restraint. It follows, therefore, that no restraint should be imposed, no power conferred, no coercive law sanctioned, without a specific and satisfactory reason. There is always one reason against every coercive law, and one reason which, were there no other, would be sufficient by itself: it is, that such a law is restrictive of liberty. Whoever proposes a coercive law, ought to be ready to prove, not only that there is a specific reason in favour of this law, but also that this reason is more weighty than the general reason against every law.
The proposition, although almost self-evident, that every law† is contrary to liberty, is not generally recognised: on the contrary, the zealots of liberty, more ardent than enlightened, have made a conscience of combating it. And how have they done it? They have perverted the language, and will not employ this word in its common acceptation. They speak a language that belongs to no one: they say, Liberty consists in the power of doing every thing which does not hurt another. But is this the ordinary meaning of this word? The liberty of doing evil, is it not liberty? If it is not liberty, what is it then? and what word should we make use of in speaking of it? Do we not say that liberty should be taken away from fools, and wicked persons, because they abuse it?
According to this definition, then, I do not know if I have the liberty of doing or not doing any action, until I have examined all its consequences? If it appear to me hurtful to a single individual, whether the law permit, or even command it, I have not liberty to do it! An officer of justice would not have liberty to punish a thief, unless he was sure such punishment would not hurt such thief! Such are the absurdities implied in this definition.
What says unsophisticated reason? Let us seek from thence for true propositions.
The sole object of government ought to be the greatest happiness of the greatest possible number of the community.
The happiness of an individual is greater, in proportion as his sufferings are lighter and fewer in number, and as his enjoyments are greater and larger in number.
The care of providing for his enjoyments ought to be left almost entirely to each individual; the principal function of government being to protect him from sufferings.
It fulfils this office by creating rights which it confers upon individuals: rights of personal security; rights of protection for honour; rights of property; rights of receiving assistance in case of need. To these rights, correspond offences of all classes. The law cannot create rights without creating the corresponding obligations. It cannot create rights and obligations without creating offences.* It can neither command nor prohibit, without restraining the liberty of individuals.†
The citizen, therefore, cannot acquire any right without the sacrifice of a part of his liberty. Even under a bad government, there is no proportion between the sacrifice and the acquisition. Governments approach to perfection, in proportion as the acquisition is greater, and the sacrifice less.
DISTINCT OBJECTS OF THE CIVIL LAW.
In this distribution of rights and obligations, the legislator, we have already said, should have for his object the happiness of the body politic. In inquiring more particularly in what this happiness consists, we find four subordinate objects—
The more perfect the enjoyment of all these particulars, the greater the sum of social happiness, and especially of that happiness which depends upon the laws.
It may be shown, that all the functions of the law may be referred to these four heads: to provide for subsistence; to secure abundance; to befriend equality; to maintain security.
This division does not possess all the clearness and precision which could be desired. The boundaries which separate these objects are not always easily determined; they approach at different points, and are confounded one with the other. But it is enough to justify this division, that it is the most complete, and that we shall be called in many circumstances to consider each of the objects it contains, separately and distinct from each of the others.
Subsistence, for example, is included in abundance; it is, however, properly mentioned separately, because the laws ought to do for subsistence many things which they ought not to permit to be done for abundance.
Security admits of as many distinctions as there are kinds of actions which may be opposed to it. It relates to the person, to the honour, to property, to condition.
Actions hurtful to security, when prohibited by the laws, receive the character of crimes.
Among these objects of the law, security is the only one which necessarily embraces the future: subsistence, abundance, equality, may be regarded for a moment only; but security implies extension in point of time, with respect to all the benefits to which it is applied. Security is therefore the principal object.
I have placed equality among the objects of the law. In an arrangement intended to give to every man the greatest possible amount of happiness, no reason can be assigned why the law should seek to give one man more than another. There are, however, good reasons why it should not do it. The advantage acquired by the one, can only exist in consequence of an equivalent disadvantage being borne by another. The advantage would only be enjoyed by the favoured party: the disadvantage would be felt by all those who were not thus favoured.
Equality may be fostered, both by protecting it where it exists, and by seeking to produce it where it does not exist. But here lies the danger: a single error may overturn the whole social order.‡
It may appear surprising, that liberty is not placed among the principal objects of the law. But in order that we may have clear notions, it is necessary to consider it as a branch of security: personal liberty is security against a certain species of injury which affects the person; whilst, as to political liberty, it is another branch of security—security against the injustice of the members of the Government. What relates to this object, belongs not to the civil, but to the constitutional code.
RELATION BETWEEN THESE OBJECTS.
These four objects of the law appear very distinct to the mind, but they are much less so in practice. The same law may serve for several of them, because they are often united. What is done, for example, for the sake of security, may be done also for the sake of subsistence and abundance.
But there are circumstances in which it is not possible to reconcile these objects: hence a measure suggested by one of them will be condemned by another. Equality, for example, would require a certain distribution of property, which is incompatible with security.
When this contradiction exists between these objects, it is necessary to find some means of deciding which ought to have the pre-eminence; otherwise, instead of guiding us in our researches, their consideration will serve only to augment our confusion.
At the first glance it is perceived, that subsistence and security rise together to the same height: abundance and equality are manifestly of an inferior order. Indeed, without security, equality itself could not endure a single day. Without subsistence, abundance cannot exist. The two first ends are like life itself: the two last are the ornaments of life.
In legislation, the most important object is security. If no direct laws are made respecting subsistence, this object will be neglected by no one. But if there are no laws respecting security, it will be useless to have made laws respecting subsistence: command production—command cultivation; you will have done nothing: but secure to the cultivator the fruits of his labour, and you most probably have done enough.
Security, we have observed, has many branches: it is necessary that one branch of security should give way to another. For example, liberty, which is one branch of security, ought to yield to general security, since it is not possible to make any laws but at the expense of liberty.
It is not possible, then, to obtain the greatest good, but by the sacrifice of some subordinate good. In distinguishing among these objects, which, on each occasion, deserves the pre-eminence, consists the difficulty of the legislative art. Each one claims pre-eminence in turn, and it sometimes requires a complex calculation to determine to which the preference is due.
Equality ought not to be favoured, except in cases in which it does not injure security; where it does not disturb the expectations to which the laws have given birth; where it does not derange the actually established distribution.
If all property were to be equally divided, the certain and immediate consequence would be, that there would soon be nothing more to divide. Every thing would be speedily destroyed. Those who had hoped to be favoured by the division, would not suffer less than those at whose expense it would be made. If the condition of the industrious were not better than the condition of the idle, there would be no reason for being industrious.
If the principle were established, that all men should possess equal rights, by a necessary train of consequences, all legislation would be rendered impossible. The laws never cease establishing inequalities, since they cannot bestow rights upon any, without imposing obligations upon others.
Declare that all men, that is, all the human race, have equal rights: there is an end of all subordination. The son has equal rights with his father; he has the same right to direct and to punish him; he has as much right in his father’s house, as his father himself. The maniac has the same right to shut up others, as they have to shut up him. The idiot has the same right to govern his family, as his family have to govern him. All this is included in the equality of rights: it means all this, or it means nothing at all. It is true, those who have maintained this doctrine of the equality of rights, have neither been fools nor idiots. They had no intention of establishing this absolute equality: they had in their minds some restrictions, some modifications, some explanations. But if they knew not how to speak in a sensible and intelligible manner, was it possible that the blind and ignorant multitude should better understand what they did not understand themselves? And if they proclaimed independence, was it not too certain that they would be listened to?
OF LAWS RELATIVE TO SUBSISTENCE.
What can the law do relative to subsistence? Nothing directly. All that the law can do is to create motives; that is to say, to establish rewards and punishments, by the influence of which, men shall be induced to furnish subsistence to themselves. But nature has created these motives, and given them sufficient energy. Before the idea of law was formed, want and enjoyment had done, in this respect, every thing which could have been done by the best concerted laws. Want, armed with every pain, and even death itself, had commanded labour, had sharpened courage, had inspired foresight, had developed all the faculties of man. Enjoyment, the companion of every satisfied want, had formed an inexhaustible fund of rewards for those who had overcome the obstacles and accomplished the designs of nature.
The force of the physical sanction being sufficient, the employment of the political sanction would be superfluous.
Besides, the motives furnished by the laws are always more or less precarious in their operation: this is a consequence of the imperfection of the laws themselves, or of the difficulty of establishing the necessary facts, before bestowing reward or punishment. The hope of impunity glides to the bottom of the heart, in all the intermediate degrees through which it is necessary to pass, before arriving at the accomplishment of the law. But those natural effects, which we may consider as the rewards and punishments of nature, do not admit of this uncertainty: there is no evasion, no delay, no favour: experience announces the event; experience confirms it—each succeeding day repeats the lesson of the past, and the uniformity of this course leaves no place for doubt. What can be added, by direct legislation, to the constant and irresistible power of these natural motives?
But the law may indirectly provide for subsistence, by protecting individuals whilst they labour, and by securing to them the fruits of their industry when they have laboured: security for the labourer—security for the fruits of labour. In these cases, the benefit of the law is inestimable.
OF LAWS RELATIVE TO ABUNDANCE.
Shall laws be made, directing individuals not to be contented with subsistence alone, but to seek abundance? No: this would be a superfluous employment of artificial means, when the natural means are sufficient. The attractions of pleasure, the succession of wants, the active desire of adding to our happiness, will, under the safeguard of security, incessantly produce new efforts after new acquisitions. Wants and enjoyments, these universal agents in society, after having raised the first ears of corn, will by degrees erect the granaries of abundance, always increasing and always full. Desires extend themselves with the means of gratification; the horizon is enlarged in proportion as we advance; and each new want, equally accompanied by its pleasure and its pain, becomes a new principle of action. Opulence, which is only a comparative term, does not arrest this movement when once it is begun: on the contrary, the greater the means, the greater the field of operations, the greater the reward, and, consequently, the greater the force of the motive which actuates the mind. But in what does the wealth of society consist, if not in the total of the wealth of the individuals composing it? And what more is required than the force of these natural motives for carrying the increase of wealth to the highest possible degree?
We have seen that abundance is produced by degrees, by the continued operation of the same causes which had provided for subsistence: there is no opposition between these two objects. On the other hand, the greater the abundance, the more secure is subsistence. Those who have condemned abundance, under the name of luxury, have never understood this connexion.
Famines, wars, accidents of every kind, so often attack the resources of subsistence, that a society which has no superfluity would often be exposed to want necessaries. This is seen among savage nations: it is what has often been witnessed among all nations in the time of their ancient poverty; it is what has happened in our own days, in countries but little favoured by nature, such as Sweden, and in those countries in which the government has opposed the operations of commerce instead of protecting them;—whilst those countries in which luxury abounds, and where the governments are enlightened, are beyond the reach of famine. Such is the happy situation of England, where commerce is free. The gewgaw, useless in itself, obtains a value in exchange for necessaries: the manufactories of luxury are offices of insurance against want: the materials used in a brewery or a manufactory of starch, may be converted into a source of subsistence. How often has the keeping of dogs and horses been decried, as destroying the food of men! The profound politicians who would put down these expenses, do not rise one degree above those apostles of disinterestedness, who, for the purpose of producing abundance of corn, set fire to the granaries.
PROPOSITIONS OF PATHOLOGY UPON WHICH THE ADVANTAGE OF EQUALITY IS FOUNDED.
Pathology is a term used in medicine. It has not hitherto been employed in morals, but it is equally necessary there. When thus applied, moral pathology would consist in the knowledge of the feelings, affections, and passions, and their effects upon happiness. Legislation, which has hitherto been founded principally upon the quicksands of instinct and prejudice, ought at length to be placed upon the immoveable base of feelings and experience: a moral thermometer is required, which should exhibit every degree of happiness and suffering. The possession of such an instruments is a point of unattainable perfection; but it is right to contemplate it. A scrupulous examination of more or less, in point of pleasure or pain, may at first be esteemed a minute enterprise. It will be said that we must deal with generalities in human affairs, and be contented with a vague approximation. This is, however, the language of indifference or incapacity. The feelings of men are sufficiently regular to become the object of a science or an art; and till this is done, we can only grope our way by making irregular and ill-directed efforts. Medicine is founded upon the axioms of physical pathology: morals are the medicine of the soul: legislation is the practical branch; it ought, therefore, to be founded upon the axioms of mental pathology.
In order to judge of the effect of a portion of wealth upon happiness, it must be considered in three different states:
General observation.—When the effect of a portion of wealth upon happiness is spoken of, it is always without reference to the sensibility of the particular individual, and the exterior circumstances in which he may be placed. Difference of character is inscrutable; and there are no two individuals whose circumstances are alike. If these two considerations were not laid on one side, it would be impossible to form a single general proposition: but though each of these propositions may be found false or inexact in each particular case, it will neither militate against their speculative correctness, nor their practical utility. It is sufficient,—1st, If they approach more nearly to the truth than any others which can be substituted for them; and, 2dly, If they may be employed by the legislator, as the foundation of his labours, with less inconvenience than any others.
I. We proceed to the examination of the first case we have to examine—the effect of a portion of wealth when it has always been possessed.
1. Each portion of wealth is connected with a corresponding portion of happiness.
2. Of two individuals, possessed of unequal fortunes, he who possesses the greatest wealth will possess the greatest happiness.
3. The excess of happiness on the part of the most wealthy will not be so great as the excess of his wealth.
4. For the same reason, the greater the disproportion between the two masses of wealth, the less the probability that there exists an equally great disproportion between the masses of happiness.
5. The more nearly the actual proportion approaches to equality, the greater will be the total mass of happiness.
What is here said of wealth, ought not to be limited to pecuniary wealth: the term is used with a more extended signification, and includes every thing which serves for subsistence and abundance. It is for abbreviation’s sake that a portion of wealth is spoken of, instead of a portion of the matter of wealth.
We have said, each portion of wealth is connected with a corresponding portion of happiness: strictly speaking, it should have been, has a certain chance of being so connected. The efficacy of any cause of happiness is always precarious; in other words, a cause of happiness may not produce its ordinary effect; nor the same effect upon every individual. It is here that it is necessary to apply what has been said with respect to particular sensibility and character, and the variety of circumstances in which they may be found.
The second proposition is derived from the first: of two individuals, he who possesses the most wealth will possess the greatest happiness, or chance of happiness. This is a truth proved by the experience of all the world. I charge the man who would doubt it to give what he possesses of superfluity to the first person who asks it of him. This superfluity, according to his system, is worth no more than the sand on which he treads: it is a burden, and nothing else. The manna of the desert became corrupt, when more was collected than could be consumed. If, in the same manner, wealth, after it had reached a certain amount, did not give an increased chance of happiness, no one would wish for more than this amount, and the desire of accumulation would have an ascertained boundary.
The third proposition will be less contested. Place on one side one thousand labourers, having enough to live upon, and a tritle to spare: place on the other side a king, or, that he may not be troubled with the cares of royalty, a well apportioned prince, he himself as rich as all these labourers together. It is probable that his happiness will be greater than the medium happiness of each of them, but not equal to the sum-total of all their little masses of happiness; or, what amounts to the same thing, his happiness will not be one thousand times greater than the medium happiness of a single one among them. If the mass of his happiness should be found ten times, or even five times greater, this would still be much. The man who is born in the lap of wealth, is not so sensible of the value of fortune, as he who is the artisan of his own fortune. It is the pleasure of acquiring, and not the satisfaction of possessing, which is productive of the greatest enjoyment. The first is a lively sensation, sharpened by desire and previous privations: the other is a feeble sentiment, formed by habit, unenlivened by contrast, and borrowing nothing from imagination.
II. We proceed to the examination of the second case—the effect of a portion of wealth when it first comes into the hands of a new possessor. Observe, it will be proper to consider this gain as unexpected, and to suppose that this increase of wealth is received suddenly, and, as it were, by chance.
1. By repeated divisions, a portion of wealth may be reduced to so small an amount as not to produce any happiness for any one of its co-partakers. This would happen if the portion of each were less than the value of the smallest known coin; but it is not necessary to carry the division to this extreme point, in order that the proposition may be true.
2. Among co-partakers of equal fortunes, the more completely, in the distribution of a portion of wealth, this equality is allowed to remain, the greater will be the total mass of happiness.
3. Among co-partakers of unequal fortunes, the more the distribution of a portion of wealth contributes to their equality, the greater will be the total mass of happiness.
III. We proceed to the examination of the third case—the effect of a portion of wealth when it leaves the hands of its possessor. It will be again necessary to consider this loss as unexpected; to suppose that it is unlooked for. A loss is almost always unexpected, because a man naturally hopes to keep what he possesses. This expectation is founded upon the ordinary course of things; for if we look at the whole mass of men, they not only keep what they have acquired, but still further increase its amount. The proof is in the difference between the primitive poverty of every country and its actual wealth.
1. The loss of a portion of wealth will produce a loss of happiness to each individual, more or less great, according to the proportion between the portion he loses and the portion he retains.
Take away the fourth part of his fortune, and you take away the fourth part of his happiness; and so of the rest.*
But there are cases in which this proportion does not continue. If, in taking three-fourths of my fortune, you trench upon my physical wants, and in taking only the half you leave these wants untouched, the loss of happiness will not be simply the half, but the double, the quadruple, the ten-fold of what it is in the other case: one knows not where to stop.
2. (This point being settled.) The greater the number of persons with equal fortunes, among whom a given loss is divided, the less considerable the loss which results from it to the total mass of happiness.
3. A certain point being reached, a further division would render each share impalpable. The loss occasioned to the mass of happiness becomes null.
4. Among unequal fortunes, the loss of happiness produced by a loss of wealth, will be so much the less when the distribution of the loss is made in such manner as to cause them to approach most nearly to equality: (when considered without reference to the inconveniences attached to the violation of security.)
Governments, profiting by the progress of knowledge, have favoured, in many respects, the principles of equality in the distribution of losses. It is thus that they have encouraged the establishment of assurance offices. In these useful contracts, individuals assess their shares beforehand, in order to be prepared for all possible losses. The principle of assurance, founded upon the calculation of probabilities, is only the art of distributing losses among a great number of associates, so as to render them extremely light, and almost null.
The same intention has directed princes, when they have made compensation, at the expense of the state, to such of their subjects as have suffered from public calamities or the devastations of war. Nothing could have been more wise, or better intended in this respect, than the administration of Frederick the Great: this is one of the most admirable points of view under which we can contemplate the social art.
Some few attempts have been made to indemnify individuals for the losses caused by crimes on the part of malefactors. The examples of this kind are, however, still rare. It is an object which deserves the attention of legislators, since by this means the evil of offences directed against property may be reduced almost to nothing. But such a system would require to be regulated with great care, that it might not become hurtful. It ought not to favour indolence or imprudence which neglects precautions against crimes, because secure of obtaining an indemnification. The utility of the remedy would depend, therefore, upon the manner in which it was administered. But it is a culpable in difference which rejects a salutary measure, in order to spare itself the trouble of separating it from its inconveniences.
The principles laid down above will equally serve for regulating the distribution of a loss among many persons charged with a common responsibility. If their respective contributions follow the quantity of their respective fortunes, their relative condition will be the same as before; but if it be desirable to seize this occasion to make them approach more nearly to equality, a different proportion must be adopted. To assess them all equally, without regard to the difference of their fortunes, would be a third plan, which would accord neither with equality nor security.
In order to make this subject more clear, I shall present a compound case, in which there are two individuals, one of whom seeks a profit at the expense of the other. We shall then determine the effect of a portion of wealth, which, in order to pass into the hands of one individual in the shape of gain, must come out of the hands of another individual in the shape of loss.
1 Prop. Among competitors of equal fortunes, if what is gained by one be lost by another, the distribution which will leave the greatest sum of happiness, is that which would favour the defendant to the exclusion of the plaintiff.
For, 1st, The sum lost, bearing a greater proportion to the reduced fortune than to the increased fortune, the diminution of happiness for the one will be greater than the increase of happiness to the other. In a word, equality would be violated by an opposite distribution. (See note upon Gaming: the case is exactly the same.)
2d, The loser experiences the pain of disappointed expectation: the other is simply in the condition of not having gained. But the negative evil of not having gained, is not equal to the positive evil of having lost. (If this were not the case, every man would experience this evil with regard to every thing which he did not obtain, and the causes of evil being infinite, every one ought to find himself infinitely miserable).
3d, Mankind in general appear to be more sensible of grief than pleasure from an equal cause. For example a loss which would diminish the fortune of an individual by one quarter, would take more from his happiness than would probably be added by a gain which should double it.*
2 Prop. Among unequal fortunes, if the loser is the poorest, the evil of the loss will be increased by this unequality.
3 Prop. If the loser is the richest, the evil caused by the attack upon security, will be in part compensated by the portion of good arising from the progress made towards equality.
By the assistance of these axioms, which have to a certain point the character and certainty of mathematical propositions, it will be possible at length to produce a regular and constant rule for indemnities and satisfactions. Legislators have often shown a disposition to follow the counsels of equality under the name of equity, to which greater latitude has been conceded than to justice: but this idea of equity, vague and ill developed, has rather seemed a matter of instinct than of calculation. It is only by much patience and order that a multitude of incoherent and confused sentiments can be reduced into rigorous propositions.
We have now arrived at the principal object of the Laws: the care of security. This inestimable good is the distinctive mark of civilization: it is entirely the work of the laws. Without law there is no security; consequently no abundance, nor even certain subsistence. And the only equality which can exist in such a condition, is the equality of misery.
In order rightly to estimate this great benefit of the Laws, it is only necessary to consider the condition of savages. They struggle without ceasing against famine, which sometimes cuts off in a few days whole nations: rivalry with respect to the means of subsistence, produces among them the most cruel wars; and, like the most ferocious beasts, men pursue men, that they may feed on one another. The dread of this horrible calamity destroys amongst them the gentlest sentiments of nature: pity connects itself with insensibility in putting the old persons to death, because they can no longer follow their prey.
Examine also what passes at those periods, during which civilized societies almost return into the savage state: I refer to a time of war, when the laws which give security are in part suspended. Every instant of its duration is fruitful in calamity: at every step which it imprints upon the globe, at every movement which it makes, the existing mass of riches, the foundation of abundance and subsistence, is decreased and disappears: the lowly cottage, and the lofty palace are alike subject to its ravages; and often the anger or caprice of a moment consigns to destruction the slow productions of an age of labour.
Law alone has accomplished what all the natural feelings were not able to do: Law alone, has been able to create a fixed and durable possession which deserves the name of Property. The law alone could accustom men to submit to the yoke of foresight, at first painful to be borne, but afterwards agreeable and mild: it alone could encourage them in labour—superfluous at present, and which they are not to enjoy till the future. Economy has as many enemies as there are spendthrifts, or men who would enjoy, without taking the trouble to produce. Labour is too painful for idleness; it is too slow for impatience: Cunning and Injustice underhandedly conspire to appropriate its fruits; Insolence and Audacity plot to seize them by open force. Hence Security, always tottering, always threatened, never at rest, lives in the midst of snares. It requires in the legislator, vigilance continually sustained, and power always in action, to defend it against his constantly reviving crowd of adversaries.
The Law does not say to a man, “Work and I will reward you;” but it says to him, “Work, and by stopping the hand that would take them from you, I will ensure to you the fruits of your labour, its natural and sufficient reward, which, without me, you could not preserve.” If industry creates, it is the law which preserves: if, at the first moment, we owe every thing to labour, at the second, and every succeeding moment, we owe every thing to the law.
In order to form a clear idea of the whole extent which ought to be given to the principle of security, it is necessary to consider, that man is not like the brutes, limited to the present time, either in enjoyment or suffering, but that he is susceptible of pleasure and pain by anticipation, and that it is not enough to guard him against an actual loss, but also to guarantee to him, as much as possible, his possessions against future losses. The idea of his security must be prolonged to him throughout the whole vista that his imagination can measure.
This disposition to look forward, which has so marked an influence upon the condition of man, may be called expectation—expectation of the future. It is by means of this we are enabled to form a general plan of conduct; it is by means of this, that the successive moments which compose the duration of life are not like insulated and independent points, but become parts of a continuous whole. Expectation is a chain which unites our present and our future existence, and passes beyond ourselves to the generations which follow us. The sensibility of the individual is prolonged through all the links of this chain.
The principle of security comprehends the maintenance of all these hopes; it directs that events, inasmuch as they are dependent upon the laws, should be conformed to the expectations to which the laws have given birth.
Every injury which happens to this sentiment produces a distinct, a peculiar evil, which may be called pain of disappointed expectation.
The views of jurists must have been extremely confused, since they have paid no particular attention to a sentiment so fundamental in human life: the word expectation is scarcely to be found in their vocabulary; an argument can scarcely be found in their works, founded upon this principle. They have followed it, without doubt, in many instances, but it has been from instinct, and not from reason.
If they had known its extreme importance, they would not have omitted to name it; to point it out, instead of leaving it in the crowd.
That we may more completely estimate the advantage of the law, let us endeavour to form a clear idea of property. We shall see that there is no natural property—that property is entirely the creature of law.
Property is only a foundation of expectation—the expectation of deriving certain advantages from the thing said to be possessed, in consequence of the relations in which one already stands to it.
There is no form, or colour, or visible trace, by which it is possible to express the relation which constitutes property. It belongs not to physics, but to metaphysics: it is altogether a creature of the mind.
To have the object in one’s hand—to keep it, to manufacture it, to sell it, to change its nature, to employ it—all these physical circumstances do not give the idea of property. A piece of cloth which is actually in the Indies may belong to me, whilst the dress which I have on may not be mine. The food which is incorporated with my own substance may belong to another, to whom I must account for its use.
The idea of property consists in an established expectation—in the persuasion of power to derive certain advantages from the object, according to the nature of the case.
But this expectation, this persuasion, can only be the work of the law. I can reckon upon the enjoyment of that which I regard as my own, only according to the promise of the law, which guarantees it to me. It is the law alone which allows me to forget my natural weakness: it is from the law alone that I can enclose a field and give myself to its cultivation, in the distant hope of the harvest.
But it may be said, What has served as a base to the law for the commencement of the operation, when it adopted the objects which it promised to protect under the name of property? In the primitive state, had not men a natural expectation of enjoying certain things—an expectation derived from sources anterior to the law?
Yes: they have had from the beginning, there have always been circumstances in which a man could secure by his own means the enjoyment of certain things: but the catalogue of these cases is very limited. The savage, who has hidden his prey, may hope to keep it for himself so long as his cave is not discovered; so long as he is awake to defend it; whilst he is stronger than his rivals: but this is all. How miserable and precarious is this method of possession!—Suppose, then, the slightest agreement among these savages reciprocally to respect each other’s booty: this is the introduction of a principle, to which you can only give the name of law. A feeble and momentary expectation only results from time to time, from purely physical circumstances; a strong and permanent expectation results from law alone: that which was only a thread in a state of nature, becomes a cable, so to speak, in a state of society.
Property and law are born and must die together. Before the laws, there was no property: take away the laws, all property ceases.
With respect to property, security consists in no shock or derangement being given to the expectation which has been founded on the laws, of enjoying a certain portion of good. The legislator owes the greatest respect to these expectations to which he has given birth: when he does not interfere with them, he does all that is essential to the happiness of society; when he injures them, he always produces a proportionate sum of evil.
ANSWER TO AN OBJECTION.
But perhaps the laws relating to property may be good for those who possess it, but oppressive to those who have none;—the poor are perchance more miserable than they would be without them.
The laws, in creating property, have created wealth; but with respect to poverty, it is not the work of the laws—it is the primitive condition of the human race. The man who lives only from day to day, is precisely the man in a state of nature. The savage, the poor in society, I acknowledge, obtain nothing but by painful labour; but in a state of nature, what could he obtain but at the price of his toil? Has not hunting its fatigues, fishing its dangers, war its uncertainties? And if man appear to love this adventurous life—if he have an instinct greedy of these kinds of perils—if the savage rejoice in the delights of an idleness so dearly purchased—ought it to be concluded that he is more happy than our day labourers? No: the labour of these is more uniform, but the reward is more certain: the lot of the woman is more gentle, infancy and old age have more resources; the species multiplies in a proportion a thousand times greater, and this alone would suffice to show on which side is the superiority of happiness. Hence the laws, in creating property, have been benefactors to those who remain in their original poverty. They participate more or less in the pleasures, advantages, and resources of civilized society: their industry and labour place them among the candidates for fortune: they enjoy the pleasures of acquisition: hope mingles with their labours. The security which the law gives them, is this of little importance? Those who look from above at the inferior ranks, see all objects less than they really are; but at the base of the pyramid, it is the summit which disappears in its turn. So far from making these comparisons, they dream not of them; they are not tormented with impossibilities: so, that all things considered, the protection of the laws contributes as much to the happiness of the cottage, as to the security of the palace. It is surprising that so judicious a writer as Beccaria should have inserted, in a work dictated by the soundest philosophy, a doubt subversive of the social order. The right of property, says he, is a terrible right, and may not perhaps be necessary. Upon this right, tyrannical and sanguinary laws have been founded. It has been most frightfully abused; but the right itself presents only ideas of pleasure, of abundance, and of security. It is this right which has overcome the natural aversion to labour—which has bestowed on man the empire of the earth—which has led nations to give up their wandering habits—which has created a love of country and of posterity. To enjoy quickly—to enjoy without punishment,—this is the universal desire of man; this is the desire which is terrible, since it arms all those who possess nothing, against those who possess any thing. But the law, which restrains this desire, is the most splendid triumph of humanity over itself.
ANALYSIS OF THE EVILS RESULTING FROM ATTACKS UPON PROPERTY.
We have already seen, that subsistence depends upon the laws, which secure to the labourers the products of their labour; but it would be proper more exactly to analyze the evils which result from violations of property. They may be reduced to four heads:—
1. Evil of Non-possession.—If the acquisition of a portion of riches be a good, the non-possession of it must be an evil; though a negative evil, and nothing more. Hence, although men in the condition of primitive poverty may not have felt the special privation of wealth which was unknown to them, it is clear that they at least had not all the happiness which results from it, and of which we are in the enjoyment.
The loss of a portion of good, should it even remain always unknown, would yet be a loss. If by calumny you prevent my friend from conferring a benefit upon me which I did not expect, do you not do me an injury? In what consists this injury? In the negative evil which results to me, of not possessing what I otherwise should have possessed but for your calumny.
2. Pain of Loss.—Every thing which I actually possess, or which I ought to possess, I consider in my imagination as about to belong to me for ever: I make it the foundation of my expectation—of the expectation of those who depend upon me, and the support of my plan of life. Each part of my property may possess, in my estimation, besides its intrinsic value, a value in affection—as the inheritance of my ancestors, the reward of my labours, or the future benefit of my heirs. Every thing may recall to me that portion of myself which I have spent there—my cares, my industry, my economy—which put aside present pleasures, in order to extend them over the future; so that our property may become, as it were, part of ourselves, and cannot be taken from us without wounding us to the quick.
3. Fear of Loss.—To regret for what is lost, uneasiness respecting what is possessed joins itself, and even for what it is possible to acquire; for most of the objects which are necessary for subsistence and abundance, being perishable matters, future acquisitions form a necessary supplement to present possessions.
When insecurity reaches a certain point, the fear of loss hinders the enjoyment of what is possessed. The care of preserving condemns us to a thousand sad and painful precautions, always liable to fail. Treasures fly away, or are buried: enjoyment becomes sombre, stealthy, and solitary: it fears, by the exhibition of itself, to direct cupidity to its prey.
4. Destruction of Industry.—If I despair of enjoying the fruits of my labour, I shall only think of living from day to day: I shall not undertake labours which will only benefit my enemies. But besides this, in order to the existence of labour, the will alone is not sufficient: instruments are wanting: whilst these are being provided, subsistence is necessary. A single loss may render me unable to act, without depriving me of the disposition to labour—without having paralyzed my will. Hence the three first of these evils affect the passive faculties of the individual, whilst the fourth extends to his active faculties, and strikes them with numbness.
It is perceived in this analysis, that the two first of these evils do not extend beyond the individual injured; but the two latter expand themselves, and occupy an indefinite space in society. An attack made upon the property of one individual spreads alarm among the other proprietors: this feeling is communicated from one to another, and the contagion may at last spread over the whole body of the state.
For the development of industry, the union of power and will is required. Will depends upon encouragement—power upon means.—These means are called, in the language of political economy, productive capital.—With regard to a single individual, his capital may be destroyed, without his industrious disposition being destroyed, or even weakened. With regard to a nation, the destruction of its productive capital is impossible: but long before this fatal term arrives, the mischief would have reached the will; and the spirit of industry would fall under a terrible marasmus, in the midst of the natural resources presented by a rich and fertile soil. The will, however, is excited by so many stimulants, that it resists a multitude of discouragements and losses: a passing calamity, how great soever it may be, does not destroy the spirit of industry. This has been seen springing up again after destructive wars, which have impoverished nations, like a robust oak, which in a few years repairs the injuries inflicted by the tempest, and covers itself with new branches. Nothing less is requisite for freezing up industry, than the operation of a permanent domestic cause, such as a tyrannical government, a bad legislation, an intolerant religion which repels men from each other, or a minute superstition which terrifies them.
The first act of violence will produce a certain degree of apprehension—there are already some timid minds discouraged: a second outrage, quickly succeeding, will spread a more considerable alarm. The most prudent will begin to contract their enterprises, and by degrees to abandon an uncertain career. In proportion as these attacks are repeated, and the system of oppression assumes an habitual character, the dispersion augments: those who have fled are not replaced; those who remain fall into a state of langour. It is thus that, after a time, the field of industry being beaten down by storms, becomes at last a desert.
Asia Minor, Greece, Egypt, the coasts of Africa, so rich in agriculture, commerce, and population, whilst the Roman Empire flourished—what have they become under the absurd despotism of the Turk? The palaces are changed into cabins, and the cities into small towns: this government, hateful to all persons of reflection, has never understood that a state can never become rich but by an inviolable respect for property. It has possessed only two secrets for governing—to drain and to brutify its subjects. Hence the finest countries in the world, wasted, barren, or almost abandoned, can scarcely be recognised in the hands of their barbarous conquerors. For these evils need not be attributed to remote causes: civil wars, invasions, the scourges of nature—these might have dissipated the wealth, put the arts to flight, and swallowed up the cities; but the ports which have been filled up, would have been reopened, the communications re-established, the manufactures revived, the towns rebuilt, and all these ravages repaired in time, if the men had continued to be men. But they are not so in these unhappy countries: despair, the slow but fatal effect of long-continued insecurity, has destroyed all the active powers of their souls.
If we trace the history of this contagion, we shall see that its first attacks fall upon the richest part of society. Wealth was the first object of depredation. Superfluity vanished by little and little: absolute necessity must still be provided for, notwithstanding obstacles: man must live; but when he limits his efforts to mere existence, the state languishes, and the torch of industry furnishes but a few dying sparks. Besides, abundance is never so distinct from subsistence, that the one can be injured without a dangerous attack upon the other: whilst some lose only what is superfluous, others lose what is necessary. From the infinitely complicated system of economical relations, the wealth of one part of the citizens is uniformly the source from which a more numerous party derives its subsistence.
But another, and more smiling picture, may be traced, and not less instructive, of the progress of security, and prosperity, its inseparable companion. North America presents the most striking contrast of these two states: savage nature is there placed by the side of civilization. The interior of this immense region presents only a frightful solitude: impenetrable forests or barren tracts, standing waters, noxious exhalations, venomous reptiles,—such is the land left to itself. The barbarous hordes who traverse these deserts, without fixed habitation, always occupied in the pursuit of their prey, and always filled with implacable rivalry, only meet to attack and to destroy each other; so that the wild beasts are not so dangerous to man, as man himself. But upon the borders of these solitudes, what a different prospect presents itself! One could almost believe that one saw, at one view, the two empires of good and evil. The forests have given place to cultivated fields; the morass is dried up; the land has become solid—is covered with meadows, pastures, domestic animals, smiling and healthy habitations; cities have risen upon regular plans; wide roads are traced between them: every thing shows that men are seeking the means of drawing near to one another; they no longer dread, or seek to murder each other. The seaports are filled with vessels receiving all the productions of the earth, and serving to exchange its riches. A countless multitude, living in peace and abundance upon the fruits of their labours, has succeeded to the nations of hunters who were always struggling between war and famine. What has produced these wonders? what has renovated the surface of the earth? what has given to man this dominion over embellished, fruitful, and perfectionated nature? The benevolent genius is Security. It is security which has wrought out this great metamorphosis. How rapid have been its operations! It is scarcely two centuries since William Penn reached these savage wilds with a colony of true conquerors; for they were men of peace, who sullied not their establishment by force, and who made themselves respected only by acts of benevolence and justice.
SECURITY AND EQUALITY—THEIR OPPOSITION.
In consulting the grand principle of security, what ought the legislator to direct with regard to the mass of property which exists?
He ought to maintain the distribution which is actually established. This, under the name of justice, is with reason regarded as his first duty: it is a general and simple rule applicable to all states, adapted to all plans, even those which are most opposed to each other. There is nothing more diversified than the condition of property in America, England, Hungary, Russia: in the first country the cultivator is proprietor; in the second he is a farmer; in the third he is attached to the soil; in the fourth he is a slave. Still the supreme principle of security directs the preservation of all these distributions, how different soever their natures, and though they do not produce the same amount of happiness. For how shall a different distribution be made, without taking from some one what he possesses? how shall one party be stripped, without attacking the security of all? When your new distribution shall be disarranged, which it will be the day after its establishment, how will you be able to avoid making a second? Why should you not correct this also? and, in the meantime, what becomes of security? of happiness? of industry?
When security and equality are in opposition, there should be no hesitation: equality should give way. The first is the foundation of life—of subsistence—of abundance—of happiness; every thing depends on it. Equality only produces a certain portion of happiness: besides, though it may be created, it will always be imperfect; if it could exist for a day, the revolutions of the next day would disturb it. The establishment of equality is a chimera: the only thing which can be done is to diminish inequality.
If violent causes, such as a revolution in government, a schism, a conquest, produce the overthrow of property, it is a great calamity; but it is only transitory—it may be softened and even repaired by time. Industry is a vigorous plant, which resists numerous loppings, and in which the fruitful sap rises immediately upon the return of spring. But if property were overthrown with the direct intention of establishing equality of fortune, the evil would be irreparable: no more security—no more industry—no more abundance; society would relapse into the savage state from which it has arisen.
“Devant eux des citiés, derrière, eux des déserts.”
Such is the history of fanaticism. If equality ought to reign to-day, for the same reason it ought to reign always. It can only be preserved by the same violences by which it was established. It would require an army of inquisitors and executioners, deaf both to favouritism and complaint—insensible to the seductions of pleasure—inaccessible to personal interest—endowed with every virtue, and engaged in a service which would destroy them all. The level must be in perpetual motion, in order to smooth down whatever would rise above the legal line. Watchfulness must be uninterrupted, to restore the lack of those who have dissipated their portion, and to strip those who by means of labour have augmented, or by care have preserved, theirs. In such a state of things, prodigality would be wisdom, and none but the mad would be industrious. This pretended remedy, so gentle in appearance, would thus be found a deadly poison. It is a burning cautery, which would consume every thing till it reached the last principles of life. The sword of the enemy, in its wildest fury, is a thousand times less to be dreaded. It only causes partial evils, which time effaces and which industry repairs.
Some small societies, in the first effervesence of religious enthusiasm, have instituted, as a fundamental principle, the community of goods. Has happiness been increased thereby? The gentle motive of reward has been supplied by the doleful motive of punishment. Labour, so easy and so light when animated by hope, has been represented as a penance necessary in order to escape from eternal punishments. Hence, so long as the religious motive preserves its force, every one labours, but every one groans. Does this motive grow weaker? The society divides itself into two classes: the one, degraded fanatics, contract all the vices of an unhappy superstition; the other, idle cheats, cause themselves to be supported in their idleness by the dupes by whom they surround themselves; whilst the cry for equality is only a pretext to cover the robbery which idleness perpetrates upon industry.
The prospects of benevolence and concord, which have seduced so many ardent minds, are, under this system, only the chimeras of the imagination. Whence should arise, in the division of labour, the determining motive to choose the most painful? who would undertake disagreeable and dirty tasks? who would be content with his lot, and not esteem the burthen of his neighbour lighter than his own? How many frauds would be attempted, in order to throw that burthen upon another, from which a man would wish to exempt himself? and in the division of property, how impossible to satisfy every one, to preserve the appearance of equality, to prevent jealousies, quarrels, rivalries, preferences? Who shall put an end to the numberless disputes always arising? What an apparatus of penal laws would be required, to replace the gentle liberty of choice, and the natural reward of the cares which each one takes for himself? The one half of society would not suffice to govern the other. Hence this iniquitous and absurd system could only be maintained by political or religious slavery, such as that of the Helots among the Lacedemonians, and the Indians of Paraguay in the establishments of the Jesuits. Sublime inventions of legislators, who, for the establishment of equality, made two equal lots of evil and of good, and put all the evil on one side, and all the good upon the other.
SECURITY AND EQUALITY—MEANS OF RECONCILIATION.
Must there, therefore, be constant opposition, an eternal war between the two rivals, Security and Equality? Up to a certain point they are incompatible, but with a little patience and skill they may be brought by degrees to coincide.
Time is the only mediator between these contrary interests. Would you follow the counsels of equality without contravening those of security, wait for the natural period which puts an end to hopes and fears—the period of death.
When property is vacated by the death of the proprietors, the law may intervene in the distribution to be made, either by limiting in certain respects the power of disposing of it by will, with the design of preventing too great an accumulation of property in the hands of a single person, or by making the right of succession subservient to the purposes of equality, in case the deceased should not leave a husband, or wife, or relations, in the direct line, and should not have made use of his power of disposing of it by will. It passes then to new possessors, whose expectations are not formed, and equality may produce good to all, without deceiving the expectations of any. The principle only is indicated here: it will be more largely developed in the second Book.
When it regards the correction of a species of civil inequality such as slavery, the same attention ought to be paid to the rights of property; the operation should be gradual, and the subordinate object should be pursued without sacrificing the principal object. The men whom you would render free by these gradations, will be much more fitted for its enjoyment, than if you had led them to trample justice under foot, in order to introduce them to this new social condition.
We may observe, that in a nation which prospers by agriculture, manufactures, and commerce, there is a continual progress towards equality. If the laws do not oppose it—if they do not maintain monopolies—if they do not restrain trade and its exchanges—if they do not permit entails—large properties will be seen, without effort, without revolutions, without shock, to subdivide themselves by little and little, and a much greater number of individuals will participate in the advantage of moderate fortunes. This will be the natural result of the different habits formed by opulence and poverty. The first, prodigal and vain, seeks only to enjoy without creating: the second, accustomed to obscurity and to privations, finds its pleasures in its labours and its economy. From this arises the change which is going on in Europe, from the progress of arts and commerce, notwithstanding the obstacles of the laws. The ages of feudality are not long since passed by, in which the world was divided into two classes—a few great proprietors who were every thing, and a multitude of slaves who were nothing. These lofty pyramids have disappeared or have been lowered, and their debris has been spread abroad: industrious men have formed new establishments, of which the infinite number proves the comparative happiness of modern civilization. Hence we may conclude, that security, by preserving its rank as the supreme principle, indirectly conducts to the establishment of equality; whilst this latter, if taken as the basis of the social arrangement, would destroy security in establishing itself.
SACRIFICES OF SECURITY TO SECURITY.
This title at first appears enigmatical, but the enigma is soon solved.
An important distinction is to be made between the ideal perfection of security, and that perfection which is practicable. The first requires that nothing should be taken from any one; the second is attained if no more is taken than is necessary for the preservation of the rest.
This sacrifice is not an attack upon security; it is only a defalcation from it. An attack is an unforeseen shock; an evil which could not be calculated upon; an irregularity which has no fixed principle: it seems to put all the rest in danger; it produces a general alarm. But this defalcation is a fixed deduction—regular, necessary, expected—which produces an evil of the first order, but no danger, no alarm, no discouragement to industry: the same sum of money, according to the manner in which it is levied upon the people, will possess the one or the other of these characters, and will produce, in consequence, either the deadening effects of insecurity, or the vivifying effects of security.
The necessity of these defalcations is evident. To work, and to guard the workmen, are two different, and, for a time, incompatible operations. It is therefore necessary, that those who create wealth by their labour should give up a portion of it to supply the wants of the guardians of the state: wealth can only be defended at its own expense.
Society, attacked by internal or external enemies, can only maintain itself at the expense of the security, not only of these enemies themselves, but even of those in whose protection it is engaged.
If there are any individuals who perceive not this necessary connexion, it is because, in this respect, as in so many others, the wants of to-day eclipse those of to-morrow. All government is only a tissue of sacrifices. The best government is that in which the value of these sacrifices is reduced to the smallest amount. The practical perfection of security is a quantity which unceasingly tends to approach to the ideal perfection, without ever being able to reach it.
I shall proceed to give a catalogue of those cases in which the sacrifice of some portion of security, in respect of property, is necessary for the preservation of the greater mass:—
1. General wants of the state for its defence against external enemies.
2. General wants of the state for defence against delinquents or internal enemies.
3. General wants of the state for the prevention of physical calamities.
4. Fines at the expense of offenders, on account of punishment, on account of indemnities in favour of the parties injured.
5. Incroachment upon the property of individuals, for the development of the powers to be exercised against the above evils, by justice, by the police, by the army.
6. Limitations of the rights of property, or of the use which each proprietor may make of his own goods, in order to prevent his injuring himself or others.*
CASES SUBJECT TO DISPUTE.
Ought provision for the poor, for public worship, and the cultivation of the arts and sciences, to be ranked among the wants of the state for which provision ought to be made by forced contributions?
In the highest state of social prosperity, the great mass of the citizens will most probably possess few other resources than their daily labour, and consequently will always be near to indigence—always liable to fall into its gulf, from accident, from the revolutions of commerce, from natural calamities, and especially from disease: infancy will always be unable, from its own powers, to provide the means of subsistence; the decays of old age will often destroy these powers. The two extremities of life resemble each other in their helplessness and weakness. If natural instinct, humanity and shame, in concurrence with the laws, generally secure to infants and old persons the care and protection of their family, yet these succours are precarious, and those who give them may stand in need of similar succours themselves. A numerous family, supported in abundance by the labour of a man and his wife, may at any moment lose the half of its resources by the death of one of them, and lose the whole by the death of both.
Decay is still more badly provided for than childhood. The love which descends, has more power than that which ascends: gratitude is less powerful than instinct: hope attaches itself to the feeble beings who are commencing life, but has nothing more to say to those who are closing it. But even when the aged receive every possible comfort, the idea of exchanging the part of a benefactor, for that of the recipient of alms, pours somewhat of bitterness into favours received, especially when, from decay, the morbid sensibility of the mind has rendered painful, changes which would otherwise be indifferent.
This aspect of society is most painful. We picture to ourselves a long train of evils gathering round poverty, and followed up by death, under its most terrible forms, as their ultimate effect. We perceive that it is the centre towards which inaction alone makes the lot of every mortal to gravitate. Man can only rise by continued efforts, without which he will fall into this abyss; whilst these efforts are not always sufficient, and we see the most diligent, the most virtuous, sometimes sliding into it by a fatal declivity, or falling into it from inevitable reverses.
To put an end to these evils, there are only two methods independent of the laws—economy, and voluntary contributions.
If these two resourses were constantly sufficient, it would be proper to guard against the interference of the laws, for the assistance of the poor. The law which offers to poverty an assistance independent of industry, is, so to speak, a law against industry itself; or at least, against frugality. The motive to labour and economy is the pressure of present, and the fear of future, want: the law which takes away this pressure, and this fear, must be an encouragement to idleness and dissipation. This is the reproach which is reasonably brought against the greater number of establishments created for the poor.
But these two means are insufficient, as will appear upon a slight examination.
With respect to economy, if the greatest efforts of industry are insufficient for the daily support of a numerous class, still less will they be sufficient to allow of saving for the future. Others may be able, by their daily labour, to supply their daily returning wants; but these have no superfluity to lay by in store, that it may be used when required at a distant time. There only remains a third class, who can provide for every thing, by economizing during the period of labour, for the supply of the period in which they can no longer work. It is only with respect to this last class, that poverty can be esteemed a kind of crime, “Economy,” it is said “is a duty. If they have neglected it, so much the worse for them. Misery and death may perhaps await them, but they can accuse only themselves: besides, their catastrophe will not be an evil wholly wasted; it will serve as a lesson to prodigals. It is a law established by nature—a law which is not, like those of men, subject to uncertainty and injustice. Punishment only falls upon the guilty, and is proportioned exactly to their fault.” This severe language would be justifiable, if the object of the law were vengeance: but this vengeance itself is condemned by the principle of utility, as an impure motive, founded upon antipathy. Again, what will be the fruit of these evils, this neglect, this indigence, which you regard in your anger as the just punishment of prodigality? Are you sure that the victims thus sacrificed will prevent, by their example, the faults which have led to their suffering?
Such an opinion shows little knowledge of the human heart. The distress, the death of certain prodigals—of those unhappy persons who have not been able to refuse themselves the infinitely little enjoyments of their condition, who have not learnt the painful art of striving by reflection against all the temptations of the moment—their distress I say, even their death itself, would have little influence, as instruction upon the laborious class of society. Is it possible that this sad spectacle, in which shame conceals the greater part of the details, should possess, like the punishment of malefactors, a publicity which should strike the attention, and permit no one to be ignorant of its cause? Would those to whom this lesson was most necessary, know how to give to such an event the proper interpretation?—would they always recognise the connexion between imprudence as the cause, and suffering as the effect? Might they not attribute this catastrophe to unforeseen accidents, which it was impossible to prevent? Instead of saying, Behold a man who has been the author of his own losses, and whose indigence ought to excite me to labour and economy without relaxation,—might it not often be said, with an appearance of reason, There is an unfortunate person, who has taken a thousand useless cares, and whose experience proves the vanity of human prudence. This would doubtless be bad reasoning: but ought an error in logic, a simple defect in reflection, among a class of men more called to the exercise of their hands than their heads, to be punished thus rigorously?
Besides, what should be thought of a punishment, retarded as to its execution even to the last extremity of life, which ought to begin by overcoming at the other extremity (that is to say, in youth) the ascendancy of the most imperious motives? How must this pretended lesson be weakened by the distance!—how small the analogy between an old and a young man!—how little does the example of the one operate upon the other! In the youth, the idea of immediate good and evil occupies nearly all the sphere of reflection, excluding the ideas of distant good and evil. If you would act upon him, place the motive near him; show him, for example, in perspective, a marriage, or any other pleasure: but a punishment placed at the extreme distance, beyond his intellectual horizon, is a punishment in pure waste. It is sought to guide those who think little; and in order to draw instruction from such a misfortune, it is requisite that they should think much: of what use, then, I ask, is a political instrument distined for the least prudent class, if it is of a nature to be efficacious only upon the wise?
Recapitulation.—The resource of economy is insufficient:—1st, It is evidently so for those who do not earn a subsistence; 2dly, For those who earn only what is strictly necessary; whilst, as to the 3d class, which embraces all those who are not included in the two former, economy would not be insufficient of itself, but it may become so from the imperfection natural to human prudence.
Let us proceed to the other resource—voluntary contributions. This has many imperfections:—
1. Its uncertainty. It will experience daily vicissitudes, according to the fortune and the liberality of the individuals upon whom it depends. Is it insufficient? These conjunctures are marked by misery and death. Is it superabundant? It offers a reward to idleness and profusion.
2. The inequality of the burden. This supplement to the wants of the poor is formed entirely at the expense of the most humane, of the most virtuous individuals in the society, often without proportion to their means; whilst the avaricious calumniate the poor, in order to colour their refusal with a varnish of system and reason. Such an arrangement is, then, a favour granted to egotism, and a punishment against humanity, the first of virtues.
I say a punishment; for though these contributions bear the name of voluntary, what is the motive from which they emanate? If it be not founded on a religious or political fear, it is a tender, but painful sympathy, which presides over these acts of generosity. It is not the hope of a pleasure, which is purchased at this price; it is the torment of pity, from which we would be set free by this sacrifice: hence it has been observed in Scotland, where indigence is limited to this sad resource, that the poor find the greatest assistance among the class the least removed from poverty.
3. The inconveniences of the distribution. If these contributions are left to chance, as in the giving of alms upon the highway—if they are left to be paid on each occasion without intervention, by the individual giving to the individual asking—the uncertainty of the supply is aggravated by another uncertainty: How, in the multitude of cases, shall the degree of merit be appreciated? May not the penny of the poor widow only increase the ephemeral treasure of an abandoned woman? Will many generous hearts be found, who, with Sidney, will put back the vivifying cup from their parched lips, saying, “I can wait—Think first of that unfortunate soldier, who has more need than I?” Can it be forgotten, that in the distribution of these fortuitous gratuities, it is not modest virtue, it is not honest poverty, often silent and bashful, which obtains the largest share? To be successful upon this obscure theatre, management and intrigue are as necessary as in the more brilliant theatre of fashion. Those who are importunate—who flatter, who lie—who mingle, according to the occasion, boldness and baseness, and change their impostures,—will obtain success, which indigent virtue, devoid of artifice, and preserving its honour in the midst of its misery, will never attain.
What Voltaire here says of talents may be applied to mendicity. In the indiserminate distribution of voluntary contributions, the share of honest and virtuous poverty will be seldom equal to that of the impudent and bold beggar.
Shall these contributions be placed in a common fund, to be afterwards distributed by chosen individuals? This method would be much to be preferred, since it permits a regular examination of wants and persons, and tends to proportion assistance to them; but it has also a tendency to diminish liberality. This benefit, which must be received at the hand of strangers, the application of which I cannot follow, from which I do not derive either the pleasure or the immediate merit, has something abstract in it, which chills the feelings: what I give myself, I give at the moment when I am moved, when the cry of poverty has entered into my heart, when there was no one but me to assist it. What I contribute to a general collection may not have a destination conformable to my wishes. This penny, which is much for me and my family to contribute, will only be as a drop in the ocean of contribution on the one hand, and in the ocean of wants on the other hand: it becomes the rich to succour the poor. In this manner many will reason, and it is on this account that collections succeed better when they are made for a determinate class of individuals than for an indefinite multitude, as the whole mass of the poor. It is, however, for this mass that it is necessary to secure permanent assistance.
From these considerations it appears, that it may be laid down as a general principle of legislation, that a regular contribution should be established for the wants of indigence; it being well understood that those only ought to be regarded as indigent, who are in want of necessaries. But from this definition it follows, that the title of the indigent, as indigent, is stronger than the title of the proprietor of a superfluity, as proprietor; since the pain of death, which would finally fall upon the neglected indigent, will always be a greater evil than the pain of disappointed expectation, which falls upon the rich when a limited portion of his superfluity is taken from him.*
With regard to the amount of a legal contribution, it ought not to exceed simple necessaries: to exceed this would be to punish industry for the benefit of idleness. Establishments which furnish more than necessaries, are only good when supported at the expense of individuals, because they can use discretion in the distribution of their assistance, and apply it to specific classes.
The details of the manner of assessing this contribution and distributing its produce, belong to political economy; in the same manner as inquiries respecting the methods of encouraging the spirit of economy and foresight among the inferior classes of society. We have, upon this interesting subject, instructive memoirs, but no treatise which embraces the whole question.† It would be necessary to commence with the theory of poverty; that is to say, by the classification of the indigent, and the causes which produce indigence, and to proceed to the adoption of precautions and remedies.
Of the Expense of Public Worship.
If the ministers of religion are considered as charged with the maintenance of one of the sanctions of morality (the religious sanction), the expense of their support ought to be referred to the same head as the expenses of police and justice—to that of internal security. They are a body of inspectors and teachers of morals, who form, so to speak, the advanced guard of the law; who possess no power over crime, but who combat with the vices out of which crimes spring; and who render the exercise of authority more rare, by maintaining good conduct and subordination. If they were charged with all the functions which might suitably be assigned to them, such as the education of the inferior classes, the promulgation of the laws, the promulgation of different public acts, the utility of their services would be more manifest. The greater the number of real services they render to the state, the less will they be subject to the diseases of dogmas and controversies, which are engendered by a desire of distinction, and the impossibility of being useful. Their activity and ambition being directed to useful objects, would prevent their becoming mischievous.
In this respect, even those who do not acknowledge the foundations of the religious sanction cannot complain, when called upon to contribute to its support, since they participate in its advantages.
But if there be in a country a great diversity of religious professions, and the legislator is not bound by a previous establishment, or by particular considerations, it will be more conformable to liberty and equality, to apply to the support of each church the contribution of each religious community. The zeal of proselytism on the part of the clergy may, it is true, in this case, be apprehended, but it will also be probable, that from their reciprocal efforts a useful emulation will result, and that by balancing their influence, a species of equilibrium will be established in this ocean of opinions, otherwise so subject to dangerous tempests.
An unfortunate case* may be imagined: that of a people to whom the legislator has denied the public exercise of their religion, and at the same time imposed upon them the obligation of supporting a religion which they consider as opposed to their own. This would be double violation of security. In such a people we must expect to find a sentiment formed, of habitual hatred against its government, a desire of change, a ferocious courage, a profound secrecy. The people, deprived of all the advantages of a public religion, of known guides, of acknowledged priests, would be given up to ignorant and fanatical chiefs; and as the support of this worship would be a school of conspiracy, the use of an oath, instead of being the security of the state would become a source of terror; instead of binding the citizens to the government, it would unite them against it, so that this people would become as formidable from its virtues as its vices.
Of the Cultivation of the Arts and Sciences.
I do not here speak of what may be done for what may be designated the useful arts and sciences: no one doubts but that objects of public utility ought to be supported by public contributions.
But with regard to the cultivation of the fine arts, of the embellishment of a country, of buildings of luxury, of objects of ornament and pleasure—in a word, for these works of supererogation, ought forced contributions to be levied? Can the imposition of taxes, which have no other than this brilliant but superfluous destination, be justified?
I would not plead here, for that which is agreeable, in opposition to what is useful,† nor justify the starving of the people, to give feasts to a court, or pensions to buffoons. But one or two reflections may be presented, by way of apology:—
1. The amount expended, and which can be expended, upon these objects, is commonly but little, compared with the mass of necessary contributions. If any one should advise that his portion of this superfluous expense should be returned to each person, would it not be an impalpable object?
2. This supererogatory part of the taxes, being confounded with the mass of those which are necessary, its collection is imperceptible: it does not excite any distinct sensation, which can give rise to any distinct complaint; and the evil of the first order, being limited to so trifling an amount, is not sufficient to produce an evil of the second order.
3. This luxury of pleasure may have a palpable utility, by attracting a concourse of foreigners, who will spend their money in the country, and thus other nations will by degrees, be made tributary to that which sways the sceptre of fashion. A country fertile in amusements, may be considered as a great theatre, which is supported in part at the expense of a crowd of spectators attracted from all parts.
It may even happen that this pre-eminence in the objects of pleasure, of literature, and of taste, may tend to conciliate to a nation the benevolence of other nations. Athens, which has been called the Eye of Greece, was more than once saved by this sentiment of respect, which its superiority of civilization inspired. A crown of glory, which surrounded this land of the fine arts, served for a long time to conceal its weakness; and every thing which was not barbarous was interested in the preservation of this city, the centre of politeness and mental enjoyment.
After all, it must be acknowledged that this seductive object may be abandoned, without risk, to the single resource of voluntary contributions. At least, nothing essential ought to have been neglected, before expenses of mere ornament are undertaken. Comedians, painters, architects may be employed, when the public credit is satisfied, when individuals have been indemnified for the losses occasioned by wars, by crimes, and physical calamities, when the support of the indigent has been provided for: until then, a preference accorded to these brilliant accessories, over these objects of necessity, cannot be justified.
It is even extremely contrary to the interest of the sovereign, inasmuch as reproaches are always exaggerated, because thought is not required in making them, but only passion and temper. The extent to which these topics have been employed in our days, in certain writings, for the purpose of exciting the people against the government of kings, is well known. But though every thing conspires, in this respect, to throw princes into the illusion, have they fallen into the same excesses, with regard to the luxury of amusements, as many republics? Athens, at the period of its greatest dangers, disregarding equally the eloquence of Demosthenes and the threats of Philip, recognised a want more pressing than its defence—an object more essential than the maintenance of its liberty: the greatest neglect of duty consisted in diverting, even for the good of the state, the funds destined for the use of a theatre. And at Rome, the passion for shows was carried almost to madness. It became necessary to waste the treasures of the world, and to strip the subject nations, in order to captivate the suffrages of the majesty of the people. Terror was spread through a whole country, because a proconsul had to give a fête at Rome; one hour of the glories of the circus threw a hundred thousand of the inhabitants of the provinces into despair,
EXAMPLES OF ATTACKS UPON SECURITY.
It will not be useless to give some examples of what I call attacks upon security. It will be a means of more clearly exhibiting the principle, and of showing that what is called unjust in morals, cannot be innocent in politics. Nothing has been more common than to authorize under one name that which would be odious under the other.
I cannot refrain from noticing here the ill effects of one branch of classical education. Youth are accustomed from their earliest days to see, in the history of the Roman people, public acts of injustice, atrocious in themselves, always coloured under specious names, always accompanied by a pompous eulogium respecting Roman virtues. The abolition of debts occupies a conspicuous place in the early transactions of the Republic. A return of the people to mount A ventine obliged the Senate to pass the sponge over all the rights of creditors. The historian excites all our interest in favour of the fraudulent debtors who discharged their debts by a bankruptcy, and does not fail to render those odious who were thus despoiled by an act of violence. What end was answered by this iniquity? The usury, which had served as a pretext for this theft, was only augmented on the morrow by this catastrophe; for the exorbitant rate of interest was only the price paid for the risks attached to the uncertainty of engagements. The foundation of their colonies has been boasted of as the work of a profound policy: it consisted always in stripping the legitimate proprietors, in a conquered country, in order to create establishments of favour or reward. This exercise of power, so cruel in its immediate effects, was disastrous also in its consequences. The Romans, accustomed to violate all the rights of property, knew not where to stop in this course. From hence arose that perpetual demand for a new division of the lands, which was the perpetual firebrand of the seditious, which contributed, under the Triumvirs, to a dreadful system of general confiscations.
The history of the Grecian Republics is full of facts of the same kind, always presented in a plausible manner, and calculated to mislead superficial minds. How has reasoning been abused, respecting the division of the lands carried into effect by Lycurgus, to serve as a foundation of his warrior institution, in which, through the most striking inequality, all the rights were on one side and all the servitude on the other.*
The attacks upon security, which have found so many officious defenders when made by the Greeks and Romans, have not experienced the same indulgence when they have been made by the monarchs of the East. The despotism of a single person has nothing seducing, because it too evidently refers to himself alone, and because there are a million chances of suffering to one of enjoying. But the despotism exercised by the multitude deceives feeble minds by a false image of public good: they place themselves, in imagination, among the great number who command, instead of supposing themselves among the small number who give up and who suffer. Leaving, therefore, the sultans and viziers in peace, we may reckon that their injustices will not be coloured by the flatteries of historians: their reputation serves as an antidote to their example.
For the same reason, we need not insist upon such attacks as national bankruptcies; but we may remark, in passing, a singular effect of fidelity to engagements, with respect to the authority even of the sovereign. In England, since the revolution, the engagements of the state have always been sacred. Hence the individuals who have treated with the government have never required any other pledge than their mortgage upon the revenue, and the collection of the revenue has remained in the hands of the king. In France, under the monarchy, the violations of the public faith were so frequent, that those who made advances to the government were for a long time in the habit of themselves collecting the taxes, and paying themselves with their own hands. But their intervention was costly to the people, whom they had no interest in sparing, and still more to the king, whom they robbed of the affection of his people. When the announcement of a deficiency alarmed all the creditors of the state, this class, so interested in England in the maintenance of the government, in France, showed itself desirous of a revolution. Each one believed he saw his security in taking from the sovereign the administration of the finances, and placing it in the hands of a national council. In what manner the event corresponded with their hopes, is well known. But it is not the less interesting to observe, that the downfal of this monarchy, which appeared immoveable, was owing, in the first instance, to mistrust, founded upon many violations of public faith.
But amid so many attacks upon security, made through ignorance, from inadvertency, or from false reasons, we shall content ourselves with pointing out a few:—
1. We may consider under this point of view, all mis-seated taxes; for example, disproportioned taxes, which spare the rich to the prejudice of the poor. The weight of this evil is further aggravated by a feeling of injustice, when one is obliged to pay more than would be required, if all others interested paid in the same proportion.
Statute labour is the height of inequality, when it falls upon those who have only their hands for their patrimony.
Taxes levied upon uncertain funds, upon persons who may not have wherewith to pay. The evil then takes another direction: the individual being unable to pay the tax on account of his indigence, finds himself subject to graver evils. Instead of the inconveniences of the tax, the sufferings of privation are experienced: for this reason, a capitation tax is bad; because a man has a head, it does not follow that he has any thing else.
Taxes which restrain trade; monopolies; close corporations. The true method of estimating these taxes is not by considering what they yield, but what they prevent the acquisition of.
Taxes upon the necessaries of life, which may be followed by physical privations, diseases, and even death itself; and no one perceive the cause. These sufferings, caused by an error in government, become confounded with natural evils which cannot be prevented.
Taxes upon the sale of lands alienated during life. It is want, in general, which leads to these sales; and the exchequer, by intervening at this period of distress, levies an extraordinary fine upon an unfortunate individual.
Taxes upon public sales; upon goods sold by auction. Here the distress is clearly proved: it is extreme, and the fiscal injustice is manifest.
Taxes upon law proceedings. These include all kinds of attacks upon security, since they amount to a refusal of the protection of the law, to all those who cannot pay for them. They consequently offer a hope of impunity to crime: the criminal has only to choose, for the object of his injustice, individuals who cannot afford to furnish the advances for a judicial suit, or to run its risks.
2. The forced raising of the value of money, another attack upon security. This is a bankruptcy, since it is not paying all that is due; a fraudulent bankruptcy, since there is a semblance of payment; and an unskilful fraud, since it deceives no one. It is also proportionably an abolition of debts; for the theft that the prince practises upon his creditors, he authorizes every debtor to practise upon his own, without producing any advantage to the public treasury. Is this course of injustice accomplished? The operation, after having weakened confidence, ruined the honest citizens, enriched the rogues, deranged commerce, disturbed the system of taxes, and caused a thousand evils to individuals, does not leave the least advantage to the government which is dishonoured by it. Expense and receipt are all altered in the same proportions.
3. Forced reduction of the rate of interest. Viewed as a question of political economy, the reduction of the rate of interest by a law is an injury to the public wealth, because it acts as a prohibition of particular premiums for the importation of foreign capital: it acts as a prohibition, in many cases, of new branches of commerce, and even of old ones, if the legal rate of interest be not sufficient to balance the risks of the capitalists.
But viewed in relation to the more immediate question of security, it is to take from the lenders, to give to the borrowers. When the rate of interest is reduced a fifth, the effect as to the lenders is the same as if they were every year stripped by robbers of the fifth part of their fortune.
If the legislator find it good to take from a particular class of citizens a fifth of their revenue, why should he stop there?—why not take another fifth—and yet another? If this first reduction answer its end, the last reduction will answer it in the same proportion; and if the measure be good in the one case, why should it be bad in the other? When he stops, he ought to have a reason for stopping; but the reason which would hinder him from taking the second step, ought to be sufficient to prevent his taking the first.
This operation resembles an act by which the rent of land should be diminished, under pretence that the proprietors are useless consumers, and the farmers productive labourers.
If you shake the principle of security as to one class of citizens, you shake it as to all: the bundle of concord is its emblem.
4. General confiscations. I refer to this head those vexations exercised upon a sect, upon a party, upon a class of men, under the vague pretence of some political offence, in such manner that the imposition of the confiscation is pretended to be employed as a punishment, when in truth the crime is only a pretence for the imposition of the confiscation. History presents many examples of such robberies. The Jews have often been the object of them: they were too rich not to be always culpable. The financiers, the farmers of the revenue, for the same reason, were subjected to what were called burning chambers. When the succession to the throne was unsettled, every body, at the death of the sovereign, might become culpable, and the spoils of the vanquished formed a treasury of reward in the hands of the successor. In a republic torn by factions, one half of the nation became rebels in the eyes of the other half. When the system of confications was admitted, the parties, as was the case at Rome, alternately devoured each other.
The crimes of the powerful, and especially the crimes of the popular party in democracies, have always found apologists. “The greater part of these large fortunes,” it has been said, “have been founded in injustice and that was only restored to the public which had been stolen from the public.” To reason in this manner, is to open an unlimited career to tyranny: it is to allow it to presume the crime, instead of proving it. By means of this logic, it is impossible to be rich and to be innocent. Ought so grave a punishment as confiscation to be inflicted by wholesale, without examination, without detail, without proof? A procedure which would be deemed atrocious if it were employed against a single person—does it become lawful when employed against an entire class of citizens? Can the evil which is done be disregarded, because there is a multitude of sufferers, whose cries are confounded together in their common shipwreck? To despoil the great proprietors, upon pretence that some one of their ancestors acquired their wealth by unjust methods, is to bombard a city because it is suspected that it encloses some thieves.
5. Dissolution of monastic orders and convents. The decree for their abolition was signed by reason itself; but its execution ought not to have been abandoned to prejudice and avarice. It would have been enough to prohibit these societies from receiving new members. They would thus have been gradually abolished: individuals would not have suffered any privation. The successive savings might have been applied to useful objects; and philosophy would have applauded an operation excellent in principle, and gentle in execution. But this slow proceeding is not that followed by avarice. It seems that the sovereigns, in dissolving these societies, have sought to punish the individuals for wrongs which they had received from the societies. Instead of considering them as orphans and invalids, who deserved all the compassion of the legislator, they looked upon them as enemies who were treated with favour, when, though reduced from opulence, they were allowed simple necessaries.
6. Suppression of places and pensions, without indemnifying the individuals who had possessed them. This kind of attack upon security deserves more particular mention, because, instead of being blamed as an injustice, it is often approved as an act of good government and economy. Envy is never more at ease than when it is able to conceal itself under the mask of the public good: but the public good only demands the reform of useless places—it does not demand the misery of the individuals holding the place reformed.
The principle of security requires, that in all reforms the indemnity should be complete. The only benefit that can be legitimately derived from them is limited to the conversion of perpetual into transitory charges.
Is it said, that the immediate suppression of these places is a gain to the public? It would be a sophism. The sum in question would without doubt, considered in itself, be a gain if it came from abroad, if it were gained by commerce, &c; but it is not a gain when drawn from the hands of certain individuals who form a part of the public. Would a family be enriched because the father had taken every thing from one of his children, the better to endow the others? But even in this case, the stripping of one son would increase the inheritance of his brothers: the evil would not be pure loss; it would produce some portion of good. But when it refers to the public, the profit of a suppressed place is divided among all, whilst the loss presses altogether upon a single person. The profit spread among the multitude divides itself into impalpable parts; the whole loss is felt by him who supports it alone. The result of the operation is in no respect to enrich the the party who gains, but to impoverish him who loses. Instead of one place suppressed, suppose a thousand, ten thousand, a hundred thousand: the total disadvantage remains the same. The spoil taken from thousands of individuals must be divided among millions: your public places would every where present you with unfortunate citizens, whom you would have plunged into indigence; whilst you would scarcely see a single individual sensibly enriched by these cruel operations. The groans of sorrow and the cries of despair would resound on all sides: the shouts of joy, if there were any such, would not be the expression of happiness, but of the antipathy which rejoices in the misery of its victims. Ministers of kings and of the people, it is not by the misery of individuals that you can procure the happiness of nations: the altar of the public good does not demand more barbarous sacrifices than that of the Divinity.
I cannot yet quit this subject; it appears so essential, for the establishment of the principle of security, to trace the error into all its retreats.
How do individuals deceive themselves or others with regard to such great injustice? They have recourse to certain pompous maxims, in which there is a mixture of truth and falsehood, and which give to a question, in itself simple, an air of profundity and political mystery. “The interest of individuals,” it is said, “ought to give way to the public interest.” But what does this mean? Is not one individual as much a part of the public as another? This public interest which you personify, is only an abstract term: it represents only the mass of the interests of indiduals. They ought all to be taken account of, instead of considering some as every thing, and the rest as nothing. If it be proper to sacrifice the fortune of one individual, in order to augment the fortune of others, it would be still better to sacrifice a second, a third, even a hundred, even a thousand, without it being possible to assign any limits; for whatever may be the number of those you have sacrificed, you always have the same reason for adding one more. In a word, the interest of the first is sacred, or the interest of no one can be so.
Individual interests are the only real interests. Take care of individuals; never injure them, or suffer them to be injured, and you will have done enough for the public. Can it be conceived that there are men so absurd as to love posterity better than the present generation; to prefer the man who is not, to him who is; to torment the living, under pretence of promoting the happiness of those who are not born, and who may never be born?
In a multitude of occasions, the men who suffer by the operation of any law have not dared to make themselves heard, or have not been listened to, on account of this obscure and false notion, that private interest ought to give way to the public interest. But if this were a question of generosity, who ought the rather to exercise it? All towards one, or one towards all? Who, then, is the greatest egotist—he who desires to preserve what he has? or he who wishes to take, and even to seize by force, that which belongs to another? An injury felt, and a benefit not felt, such is the result of these fine operations in which the interest of individuals is sacrificed to that of the public.
I conclude by a grand general consideration. The more the principle of property is respected, the more is it strengthened in the minds of the people. Small attacks upon this principle prepare for greater. It has required a long period to attain to the point at which we have arrived in civilized society; but fatal experience has shown with what facility security may be overturned, and how the savage instinct of robbery may assume an ascendancy over the laws. The people and governments are in this respect only like tame lions: if they taste blood, their natural ferocity is rekindled:—
OF FORCED EXCHANGES.
“According to Xenophon, Astyages once asked of Cyrus an account of his last lesson: There was, said he, in our school a great boy, who, having a little coat, gave it to one of his companions who was of small stature, and took from him his coat, which was larger: our master having made me the judge in this quarrel, I decided that things should be left as they were, and that the one and the other would thus be better accommodated in this respect: upon which he showed me that I had decided wrongly, for I had only considered what was fitting, whilst I ought, in the first place, to have provided for what was just, which would not allow any one to be forced with regard to what belonged to him.” Montaigne’s Essays, Book 1. ch. 24.
Let us see what ought to be thought of this decision. At the first glance it seems that a forced exchange is not contrary to security, provided that an equal value is received. How can I have lost in consequence of the law, if, after it has had its full effect, the mass of my fortune remain the same as before? If one has gained, without another having lost, the operation appears good.
No: it is not. He whom you consider to have lost nothing by the forced exchange, has really experienced a loss. As all things, moveable and immoveable, may have different values to different persons, according to circumstances, every one expects to enjoy the favourable chances which may augment the value of any part of his property. If the house which Peter occupies is of greater value to Paul than to Peter, this would not be a good reason for gratifying Paul, by obliging Peter to give it up to him, for what might be of the same value to him. This would be to deprive Peter of the natural benefit which he might have expected to derive from this circumstance.
But if Paul should say, that for the benefit of peace, he has offered a price above the ordinary value of the house, and that his adversary only refuses from obstinacy; it may be replied to him, This surplus, that you pretend to have offered, is only a supposition on your part: the contrary supposition is just as probable: for if you have offered more than the house is worth, he would have hastened to seize so fortunate a circumstance, which might never recur, and the bargain would have soon been concluded to his satisfaction: if he does not accept it, it is a proof that you have been deceived in the estimation you have made, and that if you take his house from him, upon the conditions you have proposed, his fortune will be injured, if not with reference to what he possesses, at least with reference to what he has a right to require.
No, replies Paul; he knows that my valuation is higher than any he can expect in the ordinary course of things: but he knows my necessity, and he refuses a reasonable offer, in order to derive an abusive advantage from my situation.
The following principle may serve to remove the difficulty between Peter and Paul. Things may be distinguished into two classes: those which have commonly only an intrinsic value, and those which are susceptible of a value in affection. Ordinary houses, a field cultivated in an ordinary manner, a stack of corn or hay, the common productions of manufactures, appear to belong to this first class. To the second may be referred a pleasure-garden, a library, statues, pictures, collections of natural history. As to objects of this kind, the exchange ought never to be forced: it is not possible to appreciate the value that the feeling of affection may give them. But objects of the first class may be subjected to forced exchanges, if this be the only method of preventing great losses. I possess an estate of considerable value, to which I can only go by a road which borders on a river. The river overflows and destroys the road: my neighbour obstinately refuses me a passage over a strip of land which is not worth one hundredth part of my estate: ought I to lose all my benefit, from the caprice or the enmity of an unreasonable man?
But to prevent the abuse of so delicate a principle, it would be proper to lay down strict rules. I say, then, that exchanges may be forced, in order to prevent great loss; as in the case of land rendered inaccessible, unless a passage is taken across that of a neighbour.
It is in England that all the scruples of the legislator in this respect should be observed, in order to understand all the respect which ought to be borne to property. Is a new road to be opened? In the first place, an act of parliament is necessary, and all the parties interested are heard: afterwards the assignment of an equitable indemnity only to the proprietors is not considered sufficient; but with regard to objects which may possess a value in affection, such as houses and gardens, they are protected against the law itself by being recognised as exceptions.
These operations may also be justified, when the obstinacy of an individual, or a small number of persons, is manifestly injurious to the advantage of a great number. It is thus that the inclosure of commons in England is not stopped by certain oppositions, and that, for the convenience and salubrity of towns, the sale of houses is often forced by law.
The question discussed here relates only to forced exchanges, and not to forcible removals; for a removal which should not be an exchange—a removal without an equivalent, were it even for the profit of the state, would be a pure injustice, an act of power devoid of the softening necessary to reconcile it with the principle of utility.
POWER OF THE LAWS OVER EXPECTATION.
The legislator is not the master of the dispositions of the human heart: he is only their interpreter and their servant. The goodness of his laws depends upon their conformity to the general expectation. It is highly necessary, therefore, for him rightly to understand the direction of this expectation, for the purpose of acting in concert with it. Such is the object in view: let us proceed to the examination of the conditions necessary for its accomplishment.
1. The first of these conditions, but at the same time the most difficult to be attained, is, that the laws may be anterior to the formation of the expectation. If we could suppose a new people, a generation of children: the legislator, finding no expectations formed which could oppose his views, might fashion them at his pleasure, as the sculptor fashions a block of marble. But as there already exists among all people a multitude of expectations, founded upon ancient laws or ancient usages, the legislator is obliged to employ a system of conciliations and concessions, which constantly restrain him.
The first laws themselves have always found some expectations formed; for we have seen, that before the laws there existed a feeble kind of property; that is to say, a certain expectation of keeping what each one had acquired: hence the laws have received their first direction from these anterior expectations; they have given birth to new ones, they have excavated the bed in which desires and hopes have flowed. It is no longer possible to make any change in the laws of property, without more or less disturbing the established current, and without its opposing a greater or less resistance.
Do you wish to establish a law in opposition to the actual expectations of men? If it is possible, let it begin to have effect at a distant period: the present generation will perceive no change, and the rising generation will be all prepared for it; you will find among its youth, auxiliaries against the ancient opinions; you will not injure existing interests, because they will have leisure to prepare for the new order of things. Every thing will become smooth before you, because you will have prevented the birth of expectations which would have been opposed to you.
2. Second condition—Let the laws be known. A law which is unknown can have no effect upon expectation: it does not serve to prevent an opposite expectation.
This condition, it may be said, does not depend upon the nature of the law, but upon the measures taken for its promulgation. These measures may be sufficient for their object, whatever may be the law.
This reasoning is more specious than true. There are some laws naturally more easily understood than others; such are, laws conformable to expectations already formed; laws which repose upon natural expectations. This natural expectation, this expectation produced by early habit, may be founded upon superstition, upon a hurtful prejudice, or upon a sentiment of utility: this is of no importance; the law which is conformed to it maintains its place in the mind without effort; it was there, so to speak, before it was promulgated; it was there before it received the sanction of the legislator. But a law opposed to this natural expectation, is understood with much greater difficulty, and is with still greater difficulty imprinted upon the memory: it is another disposition of things, which always presents itself to the mind; whilst the new law, altogether strange, and without roots, tends incessantly to slip from the place in which it is only artificially fixed.
Codes of ritual observances, among others, possess this inconvenience, that their fantastic and arbitrary rules, never being well known, fatigue the understanding and the memory; and the subject of them, always fearing, always at fault, always fancying himself morally diseased, can never reckon upon his innocence, and lives in want of perpetual absolutions.
Natural expectation directs itself towards the laws which are most important to society; and the foreigner who should be guilty of theft, fraud, or assassination, would not be permitted to plead his ignorance of the laws of the country, because he could not but have known that acts, so manifestly hurtful, were every where considered as crimes.
3. Third condition—That the laws should be consistent with themselves. This principle has a close relation with the preceding one; but it will serve to place a great truth in a new light. When the laws have established a certain arrangement upon a principle generally admitted, every arrangement in conformity with this principle will naturally be conformable to the general expectation.—Every analogous law is, so to speak, presumed beforehand: every new application of the principle contributes to strengthen it. But a law which does not possess this character dwells alone, as it were, in the mind, and the influence of the principle to which it is opposed is a power which incessantly tends to expel it from the memory.
That at the death of a man, his goods should be transmitted to his nearest relations, is a rule generally admitted, to which expectations naturally direct themselves. A law respecting successions, which should be consistent with this rule, would obtain general approbation, and would be understood by every mind. But the more this principle is disregarded, by the admission of exceptions, the more difficult it will be to comprehend and to retain them. The Common Law of England offers a striking example. It is so complicated with regard to the descent of property; it admits distinctions so singular; the previous decisions, which serve to regulate it, are so subtilized, that not only is it impossible for simple good sense to presume them, it is also difficult for it to comprehend them. It is a study profound as that of the most abstract sciences: it belongs only to a small number of privileged men: it has been necessary even for them to subdivide themselves; for no one lawyer pretends to understand the whole. Such has been the fruit of a too superstitious respect for antiquity.
When new laws happen to oppose a principle established by former laws, the stronger this principle is, the more hateful appears the inconsistency. There results a contradiction of opinions, and the disappointed expectant accuses the legislator of tyrrany.
In Turkey, when a man in office dies, the Sultan appropriates to himself all his fortune, at the expense of his children, who fall at once from opulence to misery. This law, which overturns all the natural expectations, is probably derived from certain other eastern governments, in which it is less inconsistent and less odious, because the sovereign only confers office upon eunuchs.
4. Fourth condition—It is only possible to make laws truly consistent, by following the principle of utility. This is the general point of union for all expectations.
Still a law conformed to utility may be found opposed to public opinion. But this is only an accidental and transient circumstance: it is only necessary to render this conformity sensible, in order to bring back all minds. As soon as the veil which hides it is withdrawn, expectation will be satisfied, and public opinion reconciled. But the more it is certain that the laws are conformed to utility, the more manifest will that utility become. If a quality be attributed to a subject which does not possess it, the triumph of this error may not endure for a day: a single ray of light is sufficient to dissipate the illusion. But a quality which really exists, though unknown, may be happily discovered at any instant. At the first moment, an innovation is surrounded by an impure atmosphere: a collection of clouds, formed by caprice and prejudice, floats around it; its form is distorted by the refractions caused by these deceptive mediums: it requires time for the eye to fix itself, and to separate from the object every thing which is foreign to it. But, by degrees, just views will gain the ascendency. If the first efforts are not successful, the second attempts will be more fortunate; because the point of difficulty to be overcome will be better known. The plan which favours the greatest number of interests cannot fail at last to obtain the greatest number of suffrages; and the useful novelty, at first repelled with disgust, will soon become so familiar that its beginning will not be recollected.
5. Fifth condition—Method in the laws. An error in form in a code of law may produce, with respect to its influence upon expectation, the same inconvenience as incoherence and inconsistency. There may result from it the same difficulty of comprehension and retention. Every man has his determinate measure of understanding: the more complex the law, the greater the number of those who cannot understand it. Hence it will be less known; it will have less hold upon men; it will not occur to their minds on the occasions on which it ought, or, what is still worse, it will deceive them, and give birth to false expectations. Both the style and arrangement ought to be simple. The law should be a manual of instruction for every individual, and he ought to be able to consult it, under all his doubts, without requiring an interpreter.
The more conformable laws are to the principle of utility, the more simple will be their systematic arrangement.
A system founded upon a single principle might be as simple in its form as in its foundation. It only is susceptible of a natural arrangement and a familiar nomenclature.
6. Sixth condition—For the purpose of overcoming expectation, it is also necessary that the law should be present to the mind as about to be executed; or at least, no reason should be perceived to lead to a contrary presumption.
Does a man hope easily to escape from the law? He forms an expectation in a manner opposed to the law. The law is therefore useless; it only retains its force for the purpose of punishment; and these inefficacious punishments are another evil with which to reproach the law. Despicable in its weakness, hateful in its strength, it is always bad, whether it reach the guilty, or they enjoy impunity.
This principle has been often disregarded in a striking manner: for example, when, under the banking system of the projector Law, people were prohibited from retaining in their own hands more than a certain sum of money, every one presumed upon a successful disobedience to this law.
A multitude of prohibitory commercial laws are defective in this respect. This multitude of easily eluded regulations forms, so to speak, an immoral lottery, in which individuals speculate in opposition to the legislature.
This principle forms a good reason for placing the domestic authority in the hands of the husband. If it had been given to the wife, the physical power being on the one side, and the legal power on the other side, discord would have been eternal. If equality had been established between them, this nominal equality could not have been maintained, because, between two opposite wills, one or the other must necessarily turn the scale. The subsisting arrangement is therefore most favourable to the peace of families, because, by making both powers to act in concert, every thing has been done which is necessary for its exercise.
This same principle will be very useful in assisting in the resolution of some problems which have too much embarrassed lawyers, such as this: in a certain case, ought a thing found to be considered the property of the finder? The more easily he can appropriate the thing independently of the law, the more desirable is it, not to make a law which shall disappoint this expectation: or, in other words, the more easy it is to elude the law, the more cruel would it be to make a law which, appearing to the mind almost incapable of execution, could not fail to produce evil when it should chance to be executed. Let us illustrate this by an example: Suppose I find a diamond in the earth: my first movement will be to say this is mine; and the expectation of keeping it will naturally be formed at the same moment, not only from the inclination of the desires, but also from analogy with the habitual ideas of property: 1st, I have possession of it, and this possession alone is a good title, when there is no opposite title. 2dly, Its discovery is due to me: it is I who have drawn this diamond from the dust, in which it was unknown to all the world, and where it was of no value. 3dly, I may flatter myself with keeping it without the knowledge of the law, and in opposition to the laws themselves, because it will be enough if I can hide it till I have a pretence for making it to be believed that I have acquired it by some other title. Hence, when the law would dispose of it in favour of some other person than me, it does not hinder this first movement, this hope of keeping it; and therefore, by taking it from me, it makes me experience that pain of disappointed expectation, which is commonly called injustice or tyranny. This reason would therefore be sufficient for giving a thing found to the finder, unless there be a stronger opposite reason.
This rule might therefore vary according to the chance which the thing naturally presents of its being kept without the knowledge of the laws: a vessel shipwrecked, that I have been the first to discover upon the shore—a mine—an island that I may have discovered, are objects respecting which, a previous law might prevent in me all idea of property, because it is not possible for me to appropriate them in secret. The law which refuses them to me, being of easy execution, would have its full and entire effect upon my mind. Therefore, upon consulting this principle alone, the legislator would be at liberty, either to grant or refuse the thing to the author of the discovery. But there is one particular reason in his favour: it is a reward given to industry; it tends to augment the general wealth. If all the profit of a discovery went into the public treasure, this all would be but little.
7. The seventh and last condition for regulating expectation is, that the laws should be literally understood. This condition depends in part upon the laws, and in part upon the judges. If the laws are not in harmony with the intelligence of the people—if the laws of a barbarous age are not changed in an age of civilization, the tribunals will depart by degrees from the ancient principles, and insensibly substitute new maxims. Hence will arise a kind of combat between the law which grows old, and the custom which is introduced, and in consequence of this uncertainty, a weakening of the power of the laws over expectation.
To interpret has signified entirely different things in the mouth of a lawyer, and in the mouth of another person: to interpret a passage of an author, is to show the meaning which he had in his mind; to interpret a law, in the sense of a Roman lawyer, is to neglect the clearly expressed intention, in order to substitute some other, by presuming that this new sense was the actual intention of the legislator.
With this manner of proceeding there is no security. When the law is difficult, obscure, incoherent, the citizen has always a chance of knowing it: it gives a blind warning, less efficacious than it might be, but always useful: the limits of the evil which may be suffered are at least perceived. But when the judge dares to arrogate to himself the power of interpreting the laws, that is to say, of substituting his will for that of the legislator, every thing is arbitrary—no one can foresee the course which his caprice may take. It is not enough to regard this evil in itself alone: how great soever it may be, this is a trifle in comparison of the weight of its consequences. The serpent, it is said, can cause its whole body to enter at the opening through which its head will pass: with regard to legal tyranny, it is against this subtle head that we should guard, for fear of shortly seeing displayed in its train all its tortuous folds. It is not only evil which should be distrusted, but good also, if derived from this source. All usurpation of a power superior to the law, though useful in its immediate effects, ought to be an object of dread for the future. There are limits, and narrow limits to the good which may result from this arbitrary power: there are none to the evil, there are none to the alarm, which may arise from it; the danger indistinctly lowers over every head.
Without speaking of ignorance and caprice, what facilities for prevarication! The judge, sometimes by conforming to the law, sometimes by becoming its interpreter, may always give right or wrong to whom he pleases: he is always sure to save himself, either by the literal, or by the interpretative sense. He is a conjuror, who, to the great astonishment of the spectators, draws from the same fountain bitter waters, or sweet, as he pleases.
This is one of the noblest characteristics of the English tribunals: they have generally followed the declared will of the legislator with scrupulous fidelity, or have directed themselves as far as possible by previous judgments, with regard to that still imperfect portion of legislation which depends on custom. This rigid observation of the laws may have had some inconveniences in an incomplete system, but it is the true spirit of liberty which inspires the English with so much horror for what is called an ex post facto law.
All the conditions which constitute the excellence of the laws, have so close a connexion, that the accomplishment of one alone supposes the accomplishment of the others: intrinsic utility, manifest utility, connexion, simplicity, cognoscibility, probability of execution—all these qualities may be considered as reciprocally cause and effect, the one of the others.
If the obscure system called custom were no longer suffered to exist, and the whole law were reduced to writing—if the laws which concern every individual were collected in one volume, and those which concerned certain classes were in separate collections—if the general code were universally circulated—if it were made, as among the Jews, a portion of the religious service, one of the manuals of education—if it were required to be engraven upon the memory before admission to the exercise of political privileges—the laws would then become truly known; every deviation from them would be sensible, every citizen would be their guardian; there would be no mystery to conceal them—no monopoly in their explanation—no fraud or chicane to elude them.
It is also necessary that the style of the laws should be as simple as their arrangement; that the language in ordinary use should be employed; that their formulas should have no scientific apparatus; and, in a word, that if the style of the book of the laws were distinguished from the style of other books, it should be by its superior perspicuity—by its greater precision—by its greater familiarity, because it is intended to be understood by all, and particularly by those least enlightened.
When one has formed a conception of this system of laws, and comes to compare it with those that exist, the feeling which results is far from being favourable to our existing institutions.
We must, however, distrust grievous declamations and exaggerated complaints, though the laws may be imperfect. He who should be so confined in his views, or so unreasonable in his ideas of reform, as to seek to inspire revolt or contempt against the general system of the laws, would be unworthy of attention at the tribunal of an enlightened public, who can enumerate their benefits—I do not say under the best, but under the worst of governments. Do we not owe to them all that we possess of security, property, trade, abundance? Do they not preserve peace among our fellow-citizens, the sanctity of marriage, and the gentle perpetuity of families? The good which they produce is universal—it is enjoyed every day and every moment: the evils which result from them are transitory. But the good does not make itself felt; it is enjoyed without being referred to its source, as if it were in the ordinary course of nature; whilst the evils are vividly perceived, and in describing them, there is accumulated into one moment, and upon one point, sufferings which are dispersed over a large space, and a long tract of time. There are abundant reasons for loving the laws, notwithstanding their imperfections.
Innovations in the laws should be made with great caution. It is not well to destroy everything, upon pretence of reconstructing the whole: the fabric of the laws may be easily dilapidated, but is difficult to be repaired, and its alteration ought not to be entrusted to rash and ignorant operators.
OF TITLES WHICH CONFER A RIGHT TO PROPERTY.*
Thus far we have shown the reasons which should lead the legislator to sanction the existence of property. But we have only considered wealth in the mass: it is, however, necessary to descend to details; to take the individual objects which compose it, and seek out the principles which ought to govern the distribution of property at the periods when it presents itself to the law for appropriation to such or such an individual. These principles are the same that we have already laid down: Subsistence, abundance, equality, security. When they accord, the decision is easy: when they separate, it is necessary to learn to distinguish which ought to be preferred.
Actual possession is a title to property, which may precede and supply the place of all others: it will be always good against every man who has no other title to oppose to it. Arbitrarily to take away from him who possesses, in order to give to him who possesses not, would be to create a loss upon one side and a gain upon the other. But the amount of the pleasure would not be equal to the amount of the pain. First reason:—One such act of violence would spread alarm among all proprietors, by attacking their security. Second reason:—Actual possession, therefore, is a title founded upon the good of the first order and the good of the second order.
What is called the right of the first occupant, or the original discoverer, amounts to the same thing. When the right of property is granted to the first occupant—1st, He is spared the pain of disappointment; that pain which he would feel at finding himself deprived of the thing which he had occupied before all others. 2dly, It prevents contests; the combats which might take place between him and successive competitors. 3dly, It gives birth to enjoyments which, without it, would not exist for any one: the first occupier, trembling lest he should lose what he had found, would not dare openly to enjoy it, for fear of betraying himself; hence, all that he could not immediately consume would be of no value to him. 4thly, The good that is secured to him, acting in the character of reward, becomes a spur to the industry of others, who are led to seek to procure for themselves similar advantages; and the increase of the general wealth is the result of these individual acquisitions. 5thly, If every unappropriated thing did not belong to the first occupier, it would always be the prey of the strongest: the weak would be subject to continual oppression.
All these reasons do not present themselves distinctly to the minds of men: but they perceive them confusedly, and feel them as by instinct. Hence they say reason, equity, justice, direct it. These words, repeated by every body, without being explained by any one, express only a sentiment of approbation; but this approbation, founded upon solid reasons, can but acquire new force from the support of the principle of utility.
The title of original occupation has been the primitive foundation of property. It may be employed again, with regard to newly-formed islands, or lands newly discovered, reservation being made of the right of governing—the superior right of the sovereign.
Ancient bonâ fide Possession.
Possession of a certain standing, fixed by the law, ought to be superior to all other titles. If you have allowed so long a time to elapse without claiming your right, it is a proof that you have not known of its existence, or that you did not intend to make use of it. In these two cases, there has not been any attempt on your part—any desire to obtain possession of the thing; but on mine there has been the attempt and the desire to preserve it. To leave me in possession, is not to oppose security: to transfer it to you, is to attack it, and is to make all possessors uneasy, who know of no other title to their property than ancient bonâ fide possession.
But what time should be requisite to produce this displacement of hope? or, in other words, what time is requisite to legalize property in the hands of its possessors, and to extinguish all opposing titles? Nothing can be precisely determined: the lines of demarcation must be drawn at hazard, according to the value of the goods to which they refer. If this line of demarcation does not always prevent disappointment among those interested, it will prevent at least all evils of the second order. The law warns me, that if, during one year, ten years, or thirty years, I neglect to claim my right, the loss of this right itself will be the result of my negligence. This threat, the effects of which I can prevent, does not injure my security.
I have supposed that the possession is honestly obtained: in the contrary case, to confirm it would be, not to favour security, but to reward crime. The age of Nestor ought not to be sufficient to secure to an usurper the wages and the price of his iniquity. For why should there be a period when the male-factor should become tranquil? why should he enjoy the fruits of his crimes under the protection of the laws which he has violated?
With respect to his heirs, it is necessary to make distinctions. Are they honest? There may be alleged in their favour the same reason as for the ancient proprietor, and they have possession, besides, to incline the balance in their favour. Are they dishonest, as their predecessors were? They are his accomplices, and impunity ought never to be the privilege of fraud.
Second Title—Ancient bonâ fide Possession, notwithstanding opposite title.
This is what is commonly called prescription.—Reasons upon which it is founded: Prevention of disappointment—General security of proprietors.
Possession of the Contents, and of the Produce of Land.
Property in land includes all that this land contains, and all that it produces. Can its value be any thing but its contents and its produce? By its contents, are understood every thing which is below the surface, as mines and quarries; by its produce, every thing which belongs to the vegetable kingdom. All possible reasons unite for the giving this extent to the right of property in land—security, subsistence, the increase of the general wealth, the blessing of peace.
Possession of what the Land nourishes, and of what it receives.
If my land nourish animals, it is to me they owe their birth and their nourishment; their existence would have been a loss to me, if the possession of them did not secure me an indemnity. If the law give them to any one but me, there will be all the loss on one side, and all the gain on another—an arrangement opposed as well to equality as to security. It would then be my interest to diminish their number, and to prevent their increase, to the detriment of the general wealth.
If chance have thrown upon the earth things which have not yet received the seal of property, or which have lost the impression; as a whale cast on shore by a tempest, the scattered remains of a shipwreck, or uprooted trees; these things ought to belong to the possessor of the land. The reason of this preference:—He is so situated as to derive a profit from them, without loss to any individual: they cannot be refused to him, without occasioning a pain of disappointment; and indeed no one can take possession of them without occupying his land, or without encroaching upon his rights. He has in his favour all the reasons of the first occupant.
Possession of neighbouring Lands.
The waters which have covered unappropriated lands leave them:—To whom shall the property in these new lands be granted? There are many reasons for giving them to the proprietors of the neighbouring lands: 1st, They only can occupy them without encroaching upon the property of others. 2d, They only can have formed any hope respecting these lands, and previously considered them as belonging to themselves. 3d, The chance of gaining by the retreat of the waters is only an indemnity for the chance of losing by their invasion. 4th, The property in lands acquired from the waters will operate as a reward exciting to the labours necessary for this kind of conquest.*
Amelioration of one’s own things.
If I apply my labour to one of those things which are already considered as belonging to me, my title acquires new force. These vegetables which my land produces—I have sown and gathered them. I have tended these cattle, I have dug up these roots, I have felled these trees, and I have hewn them. If I should have suffered on having these things taken from me in a rough state, how much more shall I not suffer now, since each effort of my industry has given to these objects a new value, has strengthened my attachment to them, and the wish I have to keep them? These sources of future enjoyments, continually augmented by labour, would not exist without security.
Mutual Possession and bonâ fide Amelioration.
But if I apply my labour to a thing which belongs to another, treating it as if it were my own; for example, if I have made cloth with your wool; to which of us ought the thing produced to belong? Before answering this question, the question of fact must be cleared up: Was it honestly or dishonestly that I treated the thing as my property? If I have acted dishonestly, to leave me possessed of the thing produced, would be to reward the crime: if I have acted honestly, it remains to be examined, which of the two values is the greater—the original value of the thing, or the value added to it by the labour? How long has the first possessor lost it? how long have I possessed it? To whom does the place belong, in which it is found situated, at the moment it is reclaimed—to me, to the ancient possessor, or to another?
The principle of caprice having no regard to the measure of pains and pleasures, gives all to one of the parties, without caring for the other. The principle of utility, desirous of reducing to the lowest term, an inevitable inconvenience, weighs the two interests, seeks a method of reconciling them, and prescribes indemnities. It awards the article to that one of the two claimants, who would lose the most if his claim were rejected, but subject to the charge of giving to the other a sufficient indemnity.
It is after these same principles, that the same question ought to be resolved, with regard to an article which has been mixed and confounded with another; as metal belonging to you, which has been mingled in the crucible with metal belonging to me; liquor belonging to me, which has been poured into the same vessel with liquor belonging to you. There have been grand debates among the Roman lawyers, to determine to whom to give the whole. The one party, under the name of Sabinians, would give the whole to me; the other party, under the name of Proculians, would give all to you. Which was right? Neither of them: their decision always left one suffering party. One simple question would have prevented all these debates: Which of the two, by losing what had been his, would lose most?
The English lawyers have cut the gordian knot. They have not taken the trouble to examine where would be the greatest injury: they have neither considered honesty nor dishonesty, nor the greatest real value, nor the greatest desire to keep. They have decided that moveable property shall always be awarded to the possessor at the time, subject to the charge of indemnifying the original proprietor.
Exploring of Mines in the Lands of another.
Your land incloses in its bosom treasures; but, either from want of knowledge, or want of means, or want of confidence in your success, you will not seek for them, and the treasures remain hidden. If I, a stranger to your property, have all that you want for their exploring, and I ask to do it, ought the right to do so to be awarded to me without your consent? Why not? Under your land, the buried wealth does good to no one: in mine it will acquire great value; thrown into circulation, it will animate industry. What injury is done to you? You lose nothing: the surface, the only thing from which you derive any thing, remains always in the same state. But what the law, attentive to your interests, ought to do for you, is to award you a greater or less considerable part of the product; for though this treasure was nothing in your hands, it left you a certain expectation of profiting by it some day, and this chance ought not to be taken from you without indemnity.
Such is the law of England. In certain districts, it permits, upon certain conditions, the pursuit of a vein of metal discovered in the field of another, to whosoever wishes to try the adventure.
Liberty of Fishing in Great Waters.
Great lakes, great rivers, great bays, and especially the ocean, are not occupied as exclusive property. They are considered as belonging to no person, or, to speak more correctly as belonging to all.
There is no reason for limiting the right of fishing in the ocean. The multiplication of most kinds of fishes appears inexhaustible. The prodigality, the munificence of nature in this respect, surpasses every thing which can be conceived. The indefatigable Lewenhoek has estimated the number of eggs in the roe of a single cod at above six millions. What we can take and consume in this immense magazine of food is absolutely nothing, compared with the destruction produced by physical causes, which we neither know, nor can prevent, nor weaken. Man in the open sea, with his nets and lines, is only a feeble rival to the great tyrants of the ocean; whilst as to the fishes of rivers, lakes, and little gulfs, the laws take efficacious and necessary precautions for their preservation.
There is no reason for jealousy, no danger of diminishing the sources of wealth, by the number of competitors: the right of the first occupant may be left for each, and every species of labour encouraged, which tends to increase the general abundance.
Liberty of Hunting upon Unappropriated Lands.
It is the same with uncultivated and unappropriated lands, wild forests. In those vast countries which are not peopled in proportion to their extent, these tracts form considerable spaces, in which the right of hunting may be exercised without restraint. Man is there as yet only the rival of the carnivorous animals, and the chase extends the sources of subsistence without injury to any one.
But in civilized societies, in which agriculture has made great progress, where the unappropriated lands bear only a small proportion to those which have received the seal of property, there are many reasons which plead against the right of chase granted to the first occupier.
First Inconvenience.—In those countries where the population is numerous, the destruction of wild animals may proceed faster than their reproduction. Render the chase free, the kinds of animals which are its objects may be sensibly diminished, and even annihilated. The sportsman would then have as much trouble to procure a single partridge, as he has now to procure a hundred; and this would make them a hundred-fold dearer. He would not himself lose, but he would only furnish to society one hundredth part of the value he now furnishes. In other and more simple terms, the pleasure of eating partridges would be reduced to a hundredth part of what it is.
Second Inconvenience.—The chase, without being more productive than other labours, has unhappily more attractions: play is there combined with labour, idleness with exercise, glory with danger. The charm of a profession, so well suited to all the natural tastes of man, draws into this career a great number of competitors: by their rivalry they reduce the price of the labour employed upon it to the most simple subsistence; and in general this class of adventurers will be poor.
Third Inconvenience.—The chase having particular seasons, there will be intervals in which the activity of the hunter will be chained up. He will not easily return from a wandering to a sedentary life—from independence to subjection—and from a habit of idleness to a habit of labour. Accustomed, like the gamester, to live upon chances and hopes, a small fixed salary will have few attractions for him. His is a state which leads a man to crime, from its misery and idleness.
Fourth Inconvenience.—The exercise even of this profession is naturally fruitful in crimes. The multitude of quarrels, of lawsuits, prosecutions, convictions, imprisonments, and other punishments to which it gives rise, are more than sufficient to counterbalance its pleasures. The hunter, tired of vainly waiting for his prey in the high-roads, spies out in secret the game of the neighbouring proprietors. Does he think himself observed? he turns aside, he hides himself, he uses patience and cunning. Does he think there are no witnesses? he no longer respects any bounds; he passes the ditches, he leaps the hedges, he lays waste the inclosures, and his cupidity, betraying his prudence, throws him into situations from which he often cannot escape without misfortune or crime.
If the right of chase were permitted on the high-roads, an army of guards would be requisite to prevent the wanderings of the hunters.
Fifth Inconvenience.—If this right of chase be allowed to exist, though so little advantageous when exercised in such narrow limits, an assortment of laws is requisite in the civil and penal code, to determine its exercise and to punish its violations. This multiplication of laws is an evil, because they cannot be multiplied without being weakened. Besides, the severity necessary to prevent such easy and attractive crimes, gives an odious character to property, and places the rich man in a state of war with his indigent neighbours. The means of cutting short this inconvenience is not to regulate, but to suppress this right.
The prohibitory law once known, no expectation will be formed of enjoying this privilege: partridges will be no more coveted than fowls, and in the minds of the multitude, poaching will not be distinguished from theft.
It is true, that at present popular ideas are in favour of this right of chase; but if it be sometimes necessary to yield to popular ideas, it is only upon those occasions in which they have great strength, and in which there is no hope of changing their course. When pains shall be taken to enlighten the people, to discuss the motives of the law, to make them consider it as a means of peace and security, by showing that the exercise of this right is reduced almost to nothing—that the life of a hunter is miserable—that this ungrateful profession incessantly exposes him to criminality, and his family to indigence and shame, I dare affirm that popular opinion, pressed by the continual and gentle force of reason, will in a short time take a new direction.
There are some animals whose value after death does not compensate for the damages they do: such are foxes, wolves, bears, all carnivorous beasts, the enemies of the species subjected to man. Far from preserving them, it is only desirable that they should be destroyed. One method is to give the property in them to the first occupant, without regard to the territorial proprietor. Every hunter who attacks hurtful animals ought to be considered as employed by the police. But this exception should only be admitted with regard to animals capable of causing great waste.
ANOTHER MODE OF ACQUISITION—CONSENT.
*It may, however, happen, that after any thing has been possessed (by a legal title), the individuals may wish to give it up, by abandoning its enjoyment to another. Shall this arrangement be confirmed by the law? Without doubt it ought to be: all the reasons which plead in favour of the ancient proprietor are no longer on his side, but plead in favour of the new. Besides, the former proprietor must have had some motive for abandoning his property. He who speaks of a motive, speaks of a pleasure or its equivalent: pleasure of friendship, or of benevolence, if the thing be given for nothing; pleasure of acquisition, if it be made an object of exchange; benefit of security, if it have been given to save him from some evil; pleasure of reputation, if he propose by it to acquire the esteem of his fellows. The sum of enjoyment, as to these two interested parties, is necessarily augmented by the transaction. The acquirer puts himself in the place of the collater as to the ancient advantages, and the collater acquires a new advantage. We may therefore establish it as a general maxim, that every alienation implies advantage. Some good always results from it.
If there be an exchange, there are two alienations, each of which has its separate advantages. This advantage for each of the contracting parties is the difference between the value which they put upon what they give up, and the value of what they acquire. In each transaction of this kind, there are two new masses of enjoyment. In this consists the advantage of commerce.
We may observe, that in all the arts there are many things which can only be produced by the concurrence of a great number of workmen. In all these cases, the labour of one would possess no value, either for himself or others, if he could not exchange it.
Causes of Invalidity in Exchanges.
There are some cases in which the law ought not to sanction exchanges, and in which the interests of the parties ought to be regulated as if the bargain did not exist; because, instead of being advantageous, the exchange would be found hurtful either to one of the parties or to the public. All the causes which invalidate exchanges, may be ranged under the nine following heads:—
1. Undue Concealment.—If the object acquired be found to be of an inferior value to that which has served as the motive for its acquisition, the new proprietor experiences regret, and feels the pain of disappointment. If this value be below that which he has given in exchange, instead of a gain, he has made a loss. It is true that the other party has made a profit, but the pleasure of gaining is not equal to the evil of losing. I have paid ten pounds for a horse, which is worth them, if he were sound; but since he is pursy, he is not worth two: the seller has gained eight pounds, and I have lost the same sum. When the interests of these two parties are weighed together, the bargain is not advantageous, but contrariwise.
However, if at the time of the bargain, this degradation in value was not known to the former proprietor, why should the bargain be void?—why should he be constrained to make a disadvantageous exchange? The loss must fall upon some one: why should it be made to fall upon him, rather than the other?
Suppose even that he knew of this circumstance which depreciated the value of the article: was it his place to make it known, rather than that of the buyer to inquire respecting it?
These two questions ought always to be asked in connexion with invalidity, resulting from undue concealment:—Did the seller know of the existence of the defect? Was the case one of those in which he was obliged to reveal it? The solution of these questions requires too many details and researches to have place here; besides, it is not possible to frame an answer which would embrace all cases, and different modifications would be requisite, according to the different kinds of things.
2. Fraud.—This case is more simple than the preceding. A fraudulent acquisition ought never to be permitted, if it can be hindered: it is an offence which approaches to theft. You have asked of the seiler if the horse be pursy; he has replied in the negative, knowing the contrary. To sanction the bargain, would be to reward a crime. The reason given in the preceding case may be added, namely, the evil for the buyer is greater than that for the seller, and it is clear that this cause of invalidity is well founded.
3. It is the same with undue Coercion.—The seller, whose horse is only worth two pounds, constrains you by violence and threats to buy it for ten pounds: suppose that you would have been willing to pay him two pounds, the surplus is so much gained by a crime. It is true, that this loss was an advantage to you in comparison with the evil with which you were threatened in case of refusal; but neither this comparative advantage, nor that of the delinquent, ought to counterbalance the evil of the crime.
4. It is the same with Subornation.—I understand, by subornation, the price of a service which consists in the commission of a crime; as money offered to engage a man to take a false oath. There are two advantages in the bargain—that of the suborned, and that of the suborner; but these two advantages are nothing equal to the evil of the crime.
I remark in passing, that in cases of fraud, undue coercion, and subornation, the law should not content itself with annulling the act: it ought to oppose a stronger counterpoise by means of punishments.
5. Erroneous Supposition of Legal Obligation.—You have delivered your horse to a man, believing that your steward had sold him; and this had not happened: you have delivered your horse to a man, believing that he was authorized by the government to make you give him up for the service of the state; but he had no such commission: in a word, you have believed yourself under a legal obligation to sell, and this obligation did not exist. If the alienation should be confirmed after the error is discovered, the buyer would find that he had made an unexpected gain, the seller an unexpected loss. But we have seen that the advantage of gaining, cannot be compared with the evil of losing; besides, this case may be referred back to the head of undue cœrcion.
6. Erroneous Supposition of Value.—If, in alienating any thing, I am ignorant of a circumstance which tends to increase its value, when I discover my error, I experience regret for the loss. But is this a proper cause of invalidity? On the one hand, if such causes of nullity are admitted without restriction, there is great risk of throwing discouragement upon exchanges; for where is the security for my acquisitions, if the former proprietor could break the bargain by saying, “I did not understand what I did?” On the other hand, there would be a lively pain of regret, if, after having sold a diamond as a piece of crystal, there were no method of recovering it. To maintain an even balance between the parties, the diversity of circumstances and things must be regarded. It is necessary always to examine whether the ignorance of the seller were not the result of negligence; and even in cancelling the bargain, if the case demand it, it is proper, before every thing else, to provide for the security of the buyer interested in its confirmation.
However, it may happen, that a bargain free from all these defects may at last be found disadvantageous. You have bought this horse only for one journey; and the journey is not made. You were ready to set out; the horse fell ill and died. You set out; the horse throws you, and you break your leg. You mount the horse; but it is that you may go to rob upon the highway. The fancy which led you to purchase it being passed, you resell it at a loss. Cases might be multiplied to infinity, where a thing, whatever it may be, acquired on account of its value, may become useless, or burthensome, or dangerous, either to its acquirer, or to another. Are not these exceptions to the axiom, that every alienation implies advantage?—are not these as reasonable grounds of invalidity as the others?
No: all these unfavourable events are only accidents, and subsequent to the conclusion of the bargain: the ordinary case is, that the article is worth what it sells for. The total advantage of advantageous exchanges is more than equivalent to the total disadvantage of unfavourable bargains. The gains of commerce are greater than its losses, since the world is richer at present than in its savage state. Alienations ought, therefore, in general, to be maintained. But to annul alienations for accidental losses, would be to interdict alienations in general; for no person would buy—no person would sell—if the bargain might at any moment be made void in consequence of some subsequent event, which could neither be foreseen nor prevented.
7. There are some cases in which, foreseeing the evil of contracts, the legislature has prohibited them beforehand. Thus, in many countries, prodigals are interdicted; that is to say, all bargains made with them are declared invalid. But they begin by stating the danger, that is to say, the disposition which renders the prodigal unable to guide his affairs: every body is, or at least may be, informed of the imbecility with which he is struck, by the tutelary hand of justice.
Interdiction exists every where with regard to the two analogous cases of infancy and mental imbecility. I say analogous; for what an infant is for a time, which can be tolerably well determined, though by a demarcation always more or less arbitrary, a madman is for an indeterminate time, or for ever. The reasons are the same as in the preceding case. Minors and madmen are, by their condition, either ignorant, rash, or prodigal. They are presumed to be so, by a general indication, which does not require to be supported by particular proofs.
It will be easily seen, that in these three cases, the interdiction can only extend to things of a certain importance: to apply it to the trifling objects of daily consumption, would be to condemn these three classes to die by hunger.
8. The law also renders bargains invalid, on account of some probable inconvenience which may result from them.
I have an estate situated upon the confines of the state: acquired by a neighbouring power, it might become the focus of certain hostile intrigues, or favour dangerous preparations against my country: whether I think of this effect or not, the law ought to think of it for the public; it ought to prevent the evil, by refusing beforehand the guarantee of its seal to such bargains.*
The restraints which it has been thought necessary to put upon the sale of drugs capable of being employed as poisons, belong to this same head. It is the same with the prohibition of the sale of murderous weapons, such as stilettoes, of which such frequent use is made in Italy, in the most ordinary quarrels.
It is to the same motive, well or ill founded, that all prohibitions relative to the introduction or sale of certain kinds of merchandise must be referred.
In the greater number of cases, the custom is to say, that the bargain is null in itself. It is only to open the books of law to see how much nonsense has been written upon this erroneous notion, and into how much embarrassment lawyers have fallen, from not having seized the only cause of nullity, as respects bargains made under these circumstances, which is, that more evil than good results from them.
After saying that these conventions are null in themselves, to be consistent, it is necessary to conclude, that they ought not to have any effect—that they ought to be destroyed—that no trace should be left of them. In many cases, however, it is enough to modify them, to correct their inequalities by compensations, without altering the foundation of the primitive contract.
No bargain is void in itself—no bargain is valid of itself: it is the law which in each case gives or refuses validity. But for permitting or refusing, there ought to be reasons. Equivocal generation is banished from sound philosophy: some day, perhaps, it will be banished from jurisprudence. This null in itself is precisely an equivocal generation.
Of Obstacles to the Alienation of Land.
To say that the power of alienation is useful, is as much as to say that the arrangements which tend to destroy it are in general pernicious.
It is only with regard to immoveables that this inconsistency has been exercised, both by entails and unalienable foundations; and yet, besides the general reasons in favour of the power of alienation, there are particular reasons in favour of the power of alienating lands.
1. He who seeks to get rid of his lands, shows plainly that it does not suit him to keep them: he cannot or he will not employ any thing in improving them; often, indeed, he cannot restrain himself from lowering their future value, in order to satisfy a present want. On the contrary, he who seeks to acquire them has certainly not the intention of deteriorating them; and it is probable that he purposes to increase their value.
It is true, that the same capital which would be employed in the amelioration of land might be employed in trade; but though the benefit of these two employments might be the same for the individuals, it is not the same for the state. The portion of wealth applied to agriculture is more fixed;—that which is applied to trade is more fugitive. The first is immoveable; the second may be carried away at the will of the proprietor.
2. By pledging an immoveable, a productive capital may be procured: thus one part of the value of an estate may be employed in ameliorating another, which, without this resource, could not be done. To hinder the alienation of lands is, therefore, to diminish productive capital nearly to the amount of their selling value; since, in order that an article may serve as a pledge, it is necessary that it be capable of alienation.
It is true, that a loan only has been here contemplated: there is no new capital created by the transaction. This same capital might have received a destination not less useful in the hands in which it was first found; but it ought to be observed, that the greater the means of employing capital, the more it will flow towards the country: that which is derived from abroad, forms a clear addition to that which is derived from home.
These restraints upon alienation, though condemned by the soundest notions of political economy, subsist almost every where. It is true that they have gradually diminished, as governments have better understood the interests of agriculture and trade; but there are still three causes which operate for their maintenance:—
The first is the desire of preventing prodigality. But it is not necessary, for obviating this evil, to hinder the sale of lands: it is sufficient to protect their value by not leaving it at the disposal of the individual. In a word, the specific method against this inconvenience is interdiction.
The second is pride of family, connected with the agreeable illusion, which represents the successive existence of our descendants as a prolongation of our own. To leave them the same amount of wealth is not enough to satisfy the imagination: we wish to secure them the same lands, the same houses, the same natural objects. This continuity of possession appears as a continuity of enjoyment, and presents a point of support to a fanciful feeling.
The third cause is the love of power—the desire of governing after death. The preceding motive supposes posterity: this does not suppose it. It is to this cause must be referred, as well those foundations which have in view an object of utility, well or ill understood, as those which repose only upon fancies.
If the foundation consist only in the distribution of benefits, without imposing any condition—without exacting any service, it seems sufficiently innocent, and its continuance is not an evil. It is proper to except foundations for the distribution of alms, applied without discernment, and adapted only to the encouragement of mendicity and idleness. The best of these establishments are those of charity for the poor of a rank already a little elevated—a means which offers to these unfortunate persons a more liberal relief than the general rule would allow; whilst, as to the benefices which are only granted upon the discharge of certain duties, as in colleges, convents, churches, their tendency is useful, indifferent, or hurtful, according to the nature of the duties required.
One singularity which deserves to be observed is, that in general these foundations, these particular laws that individuals have established by the indulgence of the sovereign, have experienced more respect than the public laws which originate directly with the sovereign. When a legislator has desired to tie the hands of his successor, this pretension has appeared either inconsistent or futile. The most obscure individuals have arrogated this privilege, and none have dared to disappoint them.
It would seem, that lands left to corporations, to convents, churches, would be liable to be deteriorated. Indifferent as to his successors, each passing proprietor would seek to squeeze as much as possible out of the transitory possession, and neglect the care of them, especially in old age. This may sometimes have happened: justice ought, however, to be rendered to the religious communities. They have more often been distinguished for a good, than a bad economy. If their situation inflame their cupidity and avarice, it also represses pomp and prodigality: if there be causes which excite their selfishness, there are others which combat it, by what is called esprit de corps.
There is no necessity for expatiating with regard to public property; that is, with regard to things used by the public, such as roads, churches, markets. To fulfil their design, they ought to possess an indefinite duration, with the exception of their admitting those successive changes which circumstances may require.
ANOTHER MEANS OF ACQUISITION—SUCCESSION.
After the death of an individual, how ought his property to be disposed of?
The legislature should have three objects in view:—1st, To provide for the subsistence of the rising generation; 2dly, To prevent the pain of disappointment; 3dly, To promote the equalization of fortunes.
Man is not a solitary being. With few exceptions, every man is surrounded by a larger or smaller circle of companions, united to him by the ties of relationship, marriage, friendship, or services—who in fact share with him the enjoyment of the property which by right belongs exclusively to him. His fortune is commonly, with regard to many of them, the sole source of their subsistence. To prevent the calamities of which they would become the victims, if death, which deprives them of their friend, should also deprive them of the succour which they derive from his fortune, would require a knowledge of what they habitually enjoy, and in what proportion they participate in it. But as these are facts which it would be impossible to establish but by direct proofs—without entering upon embarrassing procedures and infinite disputes, it has been found necessary to refer to general presumptions, as the only base upon which a decision can be established. The habitual part of each survivor, in the possessions of the deceased, may be presumed from the degree of affection which ought to subsist between them; and this degree of affection may be presumed from the proximity of relationship.
If this proximity were the sole consideration, the law of successions would be very simple. In the first degree, with respect to you, are all those who are connected with you, without any intermediate person—your wife, your husband, your father, your mother, and your children. In the second degree, all those whose connexion with you requires the intervention of a single person, or a single couple of intermediate persons—your grandfathers and grandmothers, your brothers or sisters, and your grandchildren. In the third degree come those whose connexion supposes two intermediate generations—your great-grandfathers, your great-grandmothers, your great-grandchildren, your uncles and aunts, nephews and nieces.
But though this arrangement may possess every possible perfection on the side of simplicity and regularity, it would not well answer the political and moral object. It does not answer better to the degree of affection of which it might be thought to furnish a presumptive proof; and would not accomplish the principal object, which is to provide for the wants of the rising generations. Let us therefore leave this genealogical arrangement for the adoption of one founded upon utility. It consists in constantly giving to the descending line, however long, the preference to the ascending or collateral line—in giving the preference infinitely to the descendants of each parent, over all those who cannot be reached without taking another step in the ascending line.
It will happen, however, that the presumptions of affection or of necessity, which serve as the foundation of these rules, will often be defective in practice; and that consequently the rules themselvse will diverge from their object. But the power of making a will, as we shall see, offers an efficacious remedy to the imperfection of the general law; and this is the principal reason for preserving it.
Thus much for general principles. But how can they be applied in detail, when it is necessary to decide among a crowd of competitors?
The model of a law upon this subject, will supply the place of a multitude of discussions:
Article I. Let there be no distinction between the sexes. Let what is said with regard to the one, be understood with regard to the other. The portion of the one shall always be equal to the portion of the other.
Reason—Good of equality. If there be any difference, it ought to be in favour of the weakest—in favour of the females, who have more wants, fewer means of acquisition, and are less able to make use of the means they have. But the strongest have had all the preference. Why? Because the strongest have made the laws.
Article II. After the death of the husband, the widow shall keep a moiety of the common property, unless otherwise provided for by the marriage-contract.
Article III. The other moiety shall be distributed in equal portions among the children.
Reasons: 1. Equality of affection on the part of the father. 2. Equality of co-occupation on the part of the children. 3. Equality of wants. 4. Equality of all imaginable reasons on the one side and on the other.
Differences of age, temperament, talent, strength, &c. may produce some difference with respect to wants in point of fact; but it is not possible for the law to appreciate them: it is for the father to provide for them by means of his right of making a will.
Article IV. If a child die before its father, leaving children, his portion shall be distributed among them in equal portions; and so on for all their descendants to infinity.
Remarks.—The distribution by roots, instead of by branches, is preferred for two reasons:—1. In order to prevent the pain of disappointment. That the portion of the elder should be diminished by the birth of each younger child, is a natural event, by which expectation ought to regulate itself. However, in general, when one of the children begins to exercise its reproductive power, that of the father is generally nearly exhausted. At this period, the children ought to believe themselves arrived at the boundary of the diminutions that their respective portions ought to experience. But if each little grandson or little granddaughter produce a diminution equal to that produced by a son or daughter, the diminution would have no limits; there would be no certain grounds upon which to form a plan of life. 2. Grandchildren have for their immediate resource the property of their deceased father. Their custom of co-occupation detached from their grandfather has been exercised by preference, if not exclusively, upon the funds of paternal industry. It may be added, that they have, in the goods of their mother and of her parents, a resource in which the other children of their grandfather have no share.
Article V. If there be no descendants, the property shall go in common to the father and mother.
Remarks.—Why to the descendants before others?—1. Superiority of affection. Every other arrangement would be contrary to the paternal feelings. We love those better who depend upon us, than those upon whom we depend. It is more pleasant to govern than to obey. 2. Superiority of wants. It is certain that our children could not exist without us, or some one who should take our place. It is probable that our parents might exist without us, because they have existed before us.
Why should the succession pass to the father and mother, rather than to the brothers and sisters?—1. The relationship being more immediate, a superior affection is presumed. 2. It is a recompense for services rendered, or rather an indemnity for the pains and expenses of education. What forms the relationship between my brother and myself? Our common relation to the same father and the same mother. What renders him more dear to me than any other companion with whom I have passed an equal portion of my life? It is because he is more dear to those who have my first affections. It is not certain that I am indebted to him for any thing, but it is certain that I owe every thing to them. Hence, upon all occasions in which the stronger titles of my children do not intervene, I owe them those indemnities to which a brother cannot pretend.
Article VI. If either of the two be dead, the portion of the deceased shall go to his descendants, in the same manner as it would have gone to the proprietor’s own relations.
Remarks.—In poor families which only possess household furniture, it is more desirable that the whole should pass to the surviving father or mother, with the charge of providing for the support of the children. The expenses of the sale, and the dispersion of the property, would ruin the survivor, whilst the portions, too small to serve as a capital, would soon be dissipated.
Article VII. In default of such descendants, the property shall go entirely to the survivor.
Article VIII. If both be dead, the property shall be divided, as before directed, among their descendants.
Article IX. But in such manner, that theportion of the half blood shall only be the half of the portion of the whole blood, when there is any such.
Reason—Superiority of affection. Of the two bonds which attach me to my brother, there is only one which attaches me to my half brother.
Article X. In default of relations in the foregoing degrees, the property shall be applied to the revenue.
Article XI. But on condition of distributing the interest as an annuity among all the relations in the ascending line, in whatever degree, in equal portions.
Remarks.—This part of the law may either be established or not, according to the condition of the country with regard to taxes; but I have been unable to discover any solid objection against this fiscal resource.
The collateral relation who would be excluded, it may be said, may be in want; but this want is an incident too casual for the foundation of a general rule. They have for their natural resource the property of their respective ancestors; and they cannot have fixed their expectations or their plan of life upon this foundation.
On the side even of the uncle, the expectation of inheriting from a nephew can be but feeble, and a positive law would suffice to prevent its existence, or to extinguish it without violence. The uncle has not the titles of the father or grandfather. It is true, that in case of the death of these, the uncle may have taken their place, and filled the place of a father to his nephew. This is a circumstance which deserves the attention of the legislator. The power of leaving legacies may answer the end; but this means of obviating the inconveniences of the general law would be null in case the nephew should die before he became of age—before he had the faculty of making a will. If, therefore, it be desirable to soften this fiscal regulation, the first departure from the rule ought to be in favour of the uncle, either in relation to the principal or the interest.
Article XII. In making division among many heirs, the mass ought to be put up for public sale, saving the right to make any other arrangement, if they are agreed.
Remark.—This is the only method of preventing community of goods—an arrangement of which we have elsewhere shown the pernicious consequences. The goods of inheritance, which may possess a value in affection, will find their true price from the competition of the heirs, and will turn to the common advantage, without occasioning those disputes which produce durable animosities in families.
Article XIII. In arranging the sale and division, every thing shall be referred to the oldest male of full age, saving to the law to make other arrangements, for fear of misconduct, upon cause stated.
Remark.—Women in general are less apt in affairs of interest and embarrassment, than men. But a certain woman, in particular, may possess a superior aptitude, indicated by the general wish of the relations: she ought to obtain the preference.
Article XIV. In default of a male of full age, every thing should be referred to the guardian of the oldest male, saving the discretionary power given in the preceding article.
Article XV. The succession which falls to the revenue for want of natural heirs, shall in like manner be sold by public auction.
Remark.—Government is incapable of managing the greater portion of specific goods; their management costs too much; they yield little, and are liable to be destroyed. This is a truth which has been established almost to demonstration by Adam Smith.
It appears to me that this project of a law is simple, concise, easy to be understood; that it is little favourable to fraud, to diversity of interpretations; in short, that it is analogous to the affections of the human heart, to the habitual inclinations which arise from the social relations, and that consequently it is calculated to conciliate the approbation of those who judge from feeling, and the esteem of those who can appreciate reason.
Those who reproach this plan with being too simple, and discover, that at this price the law would no longer be a science, may find wherewith to satisfy, and even to astonish themselves, in the labyrinth of the English common law upon successions.
To give to foreigners an idea of these difficulties, it would be necessary to begin by a dictionary altogether new to them; since, when they should see the absurdities, the subtleties, the cruelties, the frauds, which abound in this system, they would imagine that they were reading a satire, and that it was intended to insult a nation, on other accounts so justly renowned for its wisdom.
On the other hand, it would be proper to show what has reduced this evil within sufficiently narrow limits: this is the right of making a will. It is only in successions upon intestacy, that it is necessary to pass through the tortuous routes of the common law. These wills may therefore be compared to the arbitrary pardons which correct the harshness of the penal laws.
1. The law cannot know individuals, nor accommodate itself to the diversity of their wants. All that can be required of it is, that it shall offer the best chance of supplying these wants. It remains for each proprietor, who may, and who ought to know the circumstances in which those who depend upon him will be placed after his death, to correct the imperfections of the law in those cases which it could not foresee. The power of making a will, is an instrument placed in the hands of individuals for the prevention of private calamity.
2. This same power may also be considered as an instrument of authority, confided to individuals, for the encouragement of virtue and the repression of vice in the bosom of families. The power of this instrument, it is true, may be turned in an opposite direction: happily these cases would always form the exceptions to the rule. The interest of each member of the family is, that the conduct of each should be conformable to virtue, that is to say, to general utility. Passion may produce accidental wanderings, but the law ought to regulate itself by the ordinary course of affairs. Virtue is the prevailing foundation of society: even vicious parents are found as jealous as others, of the honesty and reputation of their children. The man least scrupulous in his business would be in despair, if his secret conduct were known to his family: among these he never ceases to be the apostle of that honesty, of which he stands in need from those who serve him. In this respect, every proprietor may obtain the confidence of the law. Clothed with the power of making a will, which is a branch of penal and remuneratory legislation, he may be considered as a magistrate set over the little kingdom which is called a family, to preserve it in good order. This magistrate may do wrong, and it would even seem, that as he is not restrained in the exercise of his power, either by responsibility or publicity, he would be more liable to abuse it than any other magistrate: but this danger is more than counterbalanced by the bonds of interest and affection, which place his inclinations in accordance with his duties. His natural attachment to his children or his relations, is a pledge of his good conduct, which gives as much security as can be obtained for that of the political magistrate; so that, every thing considered, the authority of this non-commissioned magistrate, besides that it is absolutely necessary for minor children, will be more often found salutary than hurtful for adults themselves.
3. The power of making a will is advantageous under another aspect: it is a means of governing, under the character of master, not for the good of those who obey, as in the preceding article, but for the good of those who command. The power of the present generation is thus extended over a portion of the future, and the wealth of each proprietor is in some respect doubled. By means of an assignment upon a time when he shall be no more, he procures a multitude of advantages beyond what he actually possesses. By continuing beyond the term of their minority, the submission of children, the indemnity for parental cares is increased; an assurance is given to the parent against ingratitude; and though it would be more pleasant to think that such precautions were superfluous, yet, if we reflect upon the infirmities of old age, it will be perceived, that it is necessary to leave all these factitious attractions to serve as their counterpoise. In the rapid decline of life, it is proper to husband every resource; and it is not without advantage, that interest is made to act as the monitor of duty.
Ingratitude on the part of children, and contempt for old age, are not common vices in civilized societies; but it ought to be recollected, that, more or less, the power of making a will exists every where. Do these vices exist more frequently where this power is most limited? To decide this question, it would be necessary to observe what passes in the families of the poor, where there is little to leave: but still this ground of judgment would be defective, since the influence of this power, established in society by the laws, tends to form the general manners; and the general manners afterwards determine the sentiments of individuals. This power given to parents, renders parental authority more respectable, and the parent who, from his indigence, cannot exercise it, unwittingly profits by it, from the general habit of submission to which it has given birth.
However, in making the father a magistrate, it is proper to guard against making him a tyrant. If the children may do wrong, he may do wrong also; and though the power of punishing them may be given to him, it does not follow that he ought to be authorized to make them die of hunger. Thus the institution of what is called in France a legitime, is a suitable medium between domestic anarchy and tyranny. Even this legitime, parents ought to be allowed to take from their children, for causes determined by the law and judicially proved.
Another question presents itself: Shall a proprietor be allowed to leave his property to whom he pleases, whether distant relations or strangers, in default of natural heirs? In this case, the fiscal resource of which we spoke under the head of successions, would be much diminished; it would only exist in the case of intestates. Here the reasons of utility divide themselves: there is a medium to be taken.
On the one side, in default of relations, the services of strangers are necessary to a man, and his attachment to them is almost the same. It is necessary that he should be able to cultivate the hopes, and recompense the cares, of a faithful servant—to soften the regrets of the friend who has grown old by his side; without speaking of the female who has wanted only a ceremony in order to be called his widow, and of orphans who are his children in the eyes of every body except the legislator.
On the other hand, if to increase the inheritance of the public treasury you take from him the power of leaving to his friends, do you not force him to spend all upon himself? If his capital will be no longer at his disposal the moment he is dead, will he not be tempted to convert it into annuities upon his own life? will it not encourage his being a spendthrift, and almost operate as a law against economy?
These reasons are without doubt to be preferred to the interest of the revenue. It is necessary at least to leave to the proprietor who has no near relations, the right of disposing of the half of his property after his death, keeping the other half for the public. To be content in this case with the smaller share, would probably be a means of obtaining more. But it would be still better not to attack the principle which permits every one to dispose of his property after his death, and not to create a class of proprietors who should regard themselves as inferior to others, on account of this legal impotence which should have struck the half of their fortune.
All that has been said respecting alienations among the living may be properly applied to wills. Upon the greater number of points, we shall be instructed by their conformity, and in the others by the contrast.
The same causes of nullity which apply to alienations among the living, apply to wills; except that, in the case of undue concealment on the part of the receiver, there must be substituted erroneous supposition on the part of the testator. The following is an example:—I leave a certain property to Titius, who is married to my daughter, supposing this marriage legal, and ignorant of the dishonesty of Titius, who, before espousing my daughter, had contracted another marriage, which was still subsisting.
Wills are exposed to a sufficiently unfortunate dilemma. Shall their validity be permitted, when made upon the bed of death? They are then exposed to undue coercion and fraud. Shall formalities incompatible with this indulgence be required? Testators will then be liable to be deprived of assistance at the moment of their greatest need. Barbarous heirs may torment them, in order to hasten their death, or secure the advantage of a will passed in these forms. A dying person who has nothing to give or to take away is no longer to be feared. In order to reduce these opposite dangers to the lowest term, a multitude of details would be required.
OF RIGHTS RESPECTING SERVICES—MEANS OF ACQUIRING THEM.
Afterthings, it remains to distribute services: a kind of property sometimes confounded with things—sometimes presenting itself under a distinct form.
How many kinds of services are there? As many as there are ways in which man may be useful to man, either by procuring good for him, or by preserving him from evil.
In the exchange of services which constitutes social intercourse, some are free, some are forced. Those which are required by the law, constitute rights and obligations. I have a right to the services of another; he is in a state of obligation with regard to me: these two terms are correlative.
In their origin, all services must have been free: it is only by degrees that the laws have intervened to convert the more important into positive rights. It is thus that the institution of marriage has converted into legal obligations the connexion which formerly was voluntary between the husband and wife, between the father and the children. The law in the same manner has converted into an obligation, in certain states, the support of the poor, a duty which still remains amongst most nations in undefined liberty. These political duties are, with respect to duties purely social, the same as particular inclosures in a vast common, in which a certain kind of cultivation is tended with precautions which insure its success. The same plant might grow in the common, and even be protected by certain conventions; but it would always be subject to more hazards than in this particular boundary traced by the law, and guaranteed by the public force.
Still, whatever the legislator may do, there are a great number of services upon which he has no hold: he cannot direct them, because it is not possible to define them, and even because constraint would change their nature, and convert them into evils. For the punishment of their violation, such an apparatus of research and of punishments would be required, as would spread terror through society. Besides, the law does not know the real obstacles which prevent their being rendered: it cannot put into activity hidden forces; it cannot create that energy, that superabundance of zeal, which surmounts difficulties, and goes a thousand times farther than commands.
The imperfection of the law upon this point is corrected by a species of supplemental law; that is to say, by the moral or social code—a code which is not written—which consists altogether in opinion, in manners, customs—and which begins where the legislative code ends. The duties which it prescribes—the services it imposes, under the names of equity, patriotism, courage, humanity, generosity, honour, disinterestedness, do not directly borrow the assistance of the laws, but derive their strength from other sanctions which lend their punishments and rewards. As the duties of this secondary code do not bear the impress of the law, their discharge has more eclât—is more meritorious; and this surplus in honour happily compensates for their deficiency in real strength. After this digression respecting morals, let us return to legislation.
The kind of services which occupy the most prominent place consists in the disposal of property in favour of another.
The kind of property which acts the greatest part in civilized society is money, the almost universal representative standard. It is thus that the consideration of services often leads back into that of things.
There are some cases in which it is necessary to require the service for the advantage of him who commands it: such is the case of the master with relation to the servant.
There are some cases in which it is necessary to require the service for the advantage of him who obeys: such is the case of the guardian and ward. These two correlative states are the foundation of all others. The rights which belong to them are the elements of which all the other states are composed.
The father ought to be, in certain respects, the guardian—in others, the master of the child. The husband ought to be, in certain respects, the guardian—in others, the master of the wife.
These conditions are capable of a definite and indefinite duration, and form domestic society. The rights which it is proper should belong to them will be treated of separately. The public services of the magistrate and the citizen constitute other classes of obligations, the establishment of which belong to the constitutional code. But besides these constant relations, there are some transitory and occasional relations in which the law may require the services of an individual in favour of another.
The means of acquiring these services, or, in other words, the causes which determine the legislator to create these obligations, may be referred to three heads: 1. Superior need. 2. Former service. 3. Agreement or Contract. Let us consider these heads in detail.
That is to say, need of receiving the service, superior to the inconvenience of rendering it.
Every individual has for his constant occupation the care of his own welfare—an occupation no less legitimate than necessary: for suppose that it were possible to reverse this principle, and to give to the love of others a superiority over self-love, the results of this arrangement would be most ridiculous and disastrous. There are, however, many occasions, in which it is possible to make a considerable addition to the happiness of others, by a slight and almost imperceptible sacrifice of one’s own. To do, in certain circumstances, what depends upon us for preventing the evil ready to fall upon another, is a service which the law may require: and the omission of this service, in the cases in which the law has exacted it, would be a kind of offence which might be called a negative offence, in order to distinguish it from a positive offence, which consists in being one’s self the instrumental cause of an evil.
But to employ one’s efforts, however light they may be, may be an evil: to be constrained to employ them is certainly one, for all constraint is an evil. Hence, in order to exact from you some service in favour of me, the evil of not receiving it ought to be so great, and the evil of rendering it so small, that no one ought to fear to undergo the one, for the prevention of the other: there is no means of fixing the precise limits. Reference must be made to the circumstances of the parties interested, by leaving to the judge the care of pronouncing upon the cases of individuals as they present themselves.
The good Samaritan, by assisting the wounded traveller, saved his life. It was a noble action, a trait of virtue; we may say more, it was a moral duty. Ought it to have been made a political duty?—ought an action of this kind to be commanded by a general law? No; not, at least, unless tempered by exceptions more or less vague. It would be proper, for example, to establish a dispensation in this case in favour of a surgeon attending upon many wounded persons in extreme danger—or of an officer going to his post to repel the enemy—or of the father of a family going to the assistance of one of his children in danger.
This principle of superior need is the foundation of many obligations. The duties required of a father towards his children may be burthensome to him; but this evil is nothing, in comparison of the evil which would result from their neglect. The duty of defending the state may be still more burthensome; but if the state were not defended, it would not exist. When the taxes are not paid, the government is dissolved. When public functions are not discharged, the course is open for all kinds of misfortunes and all kinds of crimes.
It must be understood that the obligation of rendering the service falls upon a certain individual, in consequence of his particular situation, which gives him, more than any other one, the power or the inclination of discharging it. It is thus that a guardian for orphans is chosen from among their relations or friends, to whom this duty will be less burthensome than to a stranger.
Service rendered, in consideration of which there is required of him who received the benefit, an indemnity, an equivalent, in favour of him who has supported the burthen.
Here the object is more simple: it is only necessary to value a benefit already received, in order to assign an indemnification. Less latitude need be left to the discretion of the judge.
A surgeon has given his assistance to a sick person who had lost all feeling, and who was not in a condition to send for him. A depositary has employed his labour, or has made pecuniary advances necessary for the preservation of the deposit, without being required so to do. A man has exposed himself during a fire, to save valuable property, or to rescue persons in danger. The property of an individual has been thrown into the sea, to lighten the vessel and preserve the rest of the cargo. In all these cases, and in a thousand others which might be imagined, the laws ought to secure an indemnification as the price of the service.
This title is founded upon the best of reasons: Grant the indemnification; he who has supplied it will still be a gainer: refuse it, and you leave him who has rendered the service a loser.
This regulation would be less for the advantage of him who receives the indemnification, than for those who may stand in need of services: it would be a promise made beforehand, to every man who may have the opportunity of rendering a service burthensome to himself, for the purpose of preventing any opposition between his personal interest and his benevolence. Who shall say how many evils would be prevented by such a precaution? In how many cases has not prudence arrested the legitimate desires of benevolence? Would it not be wisdom on the part of the legislator, as much as possible to reconcile them? Ingratitude, it is said, was punished at Athens as a species of fraud which obstructed the communication of benefits, by weakening this kind of credit. I do not propose to punish, but to prevent it in many cases. If the man to whom you have rendered a service is ungrateful, it is of no consequence: the law, which does not reckon upon virtues, secures you an indemnity, and on essential occasions will make the indemnity rise to a reward.
Reward! this is the true means of obtaining services: in comparison with this, punishment is a feeble instrument. In order properly to punish the omission of a service, it is proper to be sure that the individual had the power of rendering it—that he had not an excuse for not rendering it. All this requires a difficult and doubtful procedure: besides, as it acts by means of the fear of punishment, that only will be done which is absolutely necessary for avoiding the punishment. But the hope of reward animates the hidden powers, triumphs over real obstacles, and gives birth to prodigies of zeal and ardour, in cases in which threats would have only produced repugnance and dejection.
In arranging the interest of the two parties, three precautions should be observed: first, to prevent a hypocritical generosity from converting itself into tyranny, and requiring the price of a service that would not have been received, if it had not been believed to be disinterested: the second is, not to allow a mercenary zeal to snatch a reward for services that might have been rendered by the party to himself, or obtained at a less expense: the third is, not to allow a man to be overwhelmed by a crowd of assistants, who can only be fully indemnified by exchanging for a loss all the advantage of the service.*
It is easily understood that former service forms a justifying base to many classes of obligations. It is upon this that the rights of parents over their children are founded: when, in the order of nature, the strength of adult age succeeds to the weakness of early years, the necessity of receiving ceases, and the duty of restitution begins. It is upon this that the rights of wives, during the period of the union, is equally founded, when time has effaced the attractions which were its first moving causes.
Establishments at the public expense for those who have served the state, repose upon the same principle. Reward for past services is an instrument for creating future services.
Agreement or Contract;
That is to say, the making a promise between two or more persons, upon the understanding that it is regarded as legally binding.
All that has been said relative to consent in the disposal of property, applies to consent in the disposal of services: The same reasons for sanctioning this disposal as for sanctioning the other—the same fundamental axiom—every alienation of service implies advantage: no one will bind himself except from a motive of utility.
The same reasons which annual consent in the one case, annul it in the other—undue concealment, fraud, coercion, subornation, erroneous supposition of legal obligation, erroneous supposition of value, interdiction, infancy, madness, pernicious tendency of the execution of the contract without fault of the contracting parties.*
We shall not dwell upon the following causes which produce the dissolution of a contract:—1. Accomplishment; 2. Compensation; 3. Express or tacit remission; 4. Lapse of time; 5. Physical impossibility; 6. Intervention of superior inconvenience. In all these cases, the reason which had sanctioned the service no longer exists; but the two last bear only upon the literal or specific accomplishment, and may leave occasion for an indemnity. If, in a reciprocal contract, one of the parties alone have performed his part, or if he have only done more than the other, compensation becomes necessary for the restoration of an equilibrium.
An exhibition of principles only, is here attempted, without attending to the details: arrangements must necessarily vary, to correspond with the diversity of circumstances. At all times, if a small number of rules are well understood, particular arrangements will not create much difficulty, and may be all directed by the same spirit. The following rules appear sufficiently simple, to allow their developments to be passed by:—
1. Avoid producing the pain of disappointment.
2. When a portion of this evil is inevitable, diminish it as much as possible, by dividing all loss among the parties interested, in proportion to their property.
3. Observe, in the distribution, to throw the greater part of the loss upon him who ought, by his attention, to have prevented the evil, in such manner as to punish his negligence.
4. Avoid especially the production of an accidental injury greater than the evil of the disappointment.
We have laid the foundation of the whole theory of obligations in utility: we have supported the whole of this vast edifice upon three principles: Superior Need, Former Service, Agreement or Contract. Who would believe that, to arrive at notions so simple, and even so familiar, it has been necessary to open a new route? Consult the masters of the science—Grotius, Puffendorf, Burlamqui, Vattel, even Montesquieu himself, Locke, Rousseau, and the crowd of commentators: do they wish to ascend to the principle of obligations? They speak of a natural right, of a law anterior to man, of the divine law, of conscience, of a social contract, of a tacit contract, &c. &c. I know that these terms are not incompatible with the true principle; because there is not one of them that may not be brought, by explanations more or less long, to signify some good or some evil. But this oblique and winding method announces uncertainty and embarrassment, and does not put an end to disputes.
They have not seen that a contract, speaking rigorously, is no reason in itself, and that it requires a foundation—a first and independent reason. A contract serves to prove the existence of the mutual advantage of the parties contracting. It is this reason of utility which gives it force: it is by this that the cases may be distinguished in which it ought to be confirmed, from those in which it ought to be annulled. If a contract constituted a reason in itself, it would always have the same effect; if its pernicious tendency render it void, it is then its useful tendency which renders it valid.
COMMUNITY OF GOODS—ITS INCONVENIENCES.
There is no arrangement more contrary to the principle of utility, than community of goods, especially that kind of indeterminate community in which the whole belongs to every one.
1. It is an inexhaustible source of discord: far from being a state of satisfaction and enjoyment, for all parties interested, it is one of discontent and disappointment.
2. This undivided property always loses a great part of its value to all the co-partners. Subject, on the one hand, to dilapidations of every kind, because it is not under the protection of personal interest; on the other hand, it receives no improvement. Why should I undertake an expense of which the burthen will be certain, and will fall altogether on myself, whilst the advantage will be precarious, and necessarily divided.
3. The apparent equality of this arrangement would only serve to hide a real inequality. The strongest would abuse his strength with impunity, the richest would enrich themselves at the expense of the poorest. Community of goods always recalls the idea of that kind of monster which is sometimes found to exist; that is, of twins attached by the back to one another—the stronger necessarily draws the weaker along.
Reference is not here made to the community of goods between husbands and wives: called to live together, to cultivate their own interests and those of their children together, they ought to enjoy together a fortune often acquired, and always preserved by their common cares. Besides, if their wills cross each other, the conflict will not be eternal, the law having confided to the man the right of decision.
Reference is also not made to this community between associates in commerce. This community has acquisition for its object, and does not extend to enjoyment. Now, when it refers to acquisition, the associates have only one and the same object, one and the same interest; when it refers to enjoyment and consumption, each becomes independent of the other: besides, the associates in commerce are few in number; they are freely chosen, and they can separate from each other. It is precisely otherwise in common property.
In England, one of the greatest and best understood improvements is the division of commons. When we pass over the lands which have undergone this happy change, we are enchanted as with the appearance of a new colony: harvests, flocks, and smiling habitations, have succeeded to the sadness and sterility of the desert. Happy conquests of peaceful industry! noble aggrandisements, which inspire no alarms and provoke no enemies! But who would believe it, that in this island, where agriculture is so well understood, and so much esteemed, that millions of acres of productive land are abandoned to this sad state of commonalty. It is not long since that the Government, desirous of knowing its territorial domains, has collected in each district all the facts which have made known this interesting truth, so well adapted to become fruitful.*
The inconveniences of community are not experienced in the case of servitudes; that is to say, in the partial rights of property exercised over immovables (as a right of way, or right of water,) except by accident. These rights are in general limited; the value lost by the land serving is not equal to the value acquired by the land served; or in other words, the inconvenience to the one is not so great as the advantage to the other.
In England, freehold land which is worth thirty years purchase, would not be worth more than twenty years purchase if it were copyhold. This arises from there being in the latter case a lord of the manor possessing certain rights, which establish a kind of community between him and the principal proprietor. But it must not be thought that what is lost by the vassal is gained by the lord: the greater part falls into the hands of the lawyers, and is consumed in useless formalities or vexatious triflings. These are remains of the feudal system.
“It is a beautiful sight,” says Montesquieu, of the feudal law; and he afterwards compares it to an old and majestic oak. We may the rather compare it to that fatal tree, the manchineel tree, whose juices are poisons to man, and whose shade is destructive to vegetation. This unfortunate system has infused into the laws confusion and complexity, from which it is difficult to deliver them. As it is every where interwoven with property, it requires much management to destroy the one without injuring the other.
OF DISTRIBUTION OF LOSS.
Things form one branch of the objects of acquisition: Services form another. After having treated of the different methods of acquiring and losing (ceasing to possess) these two classes of objects, the analogy between gain and loss seems to indicate, as an ulterior labour, the different methods of distributing the losses to which these possessions are liable. This task will not be very long. An article comes to be destroyed, damaged, lost? The loss is already experienced. Is the proprietor known? upon him the weight of this loss rests. Is he not known? no one bears it: it is, as to every body, as null, and as if it had not happened. Ought the loss to be transferred to any other than the proprietor? that is to say, in other words, is there due to him a satisfaction, either from one cause or another? This is a subject which will be discussed in the Penal Code.
A single particular case will here suffice, as an indication of the principles.
When the buyer and seller of merchandise are at a distance from each other, it must necessarily pass through a number, more or less, of intermediate hands. It may be carried by land or by water: the merchandise becomes destroyed, damaged, or lost: it does not reach its destination in the condition in which it ought to be: upon whom shall the loss fall? upon the seller or the buyer? I say upon the seller, saving his recourse against the intermediate agents. He may by his care contribute to the security of the merchandise: it is for him to choose the moment and the manner of sending it, to take the necessary precautions: on him depends the proof. All this ought to be more easy to the merchant who sells, than to the particular individual who buys: whilst, as to him, it is only by accident that his cares can contribute in any manner to bring about the desired event.—Reason, Superior preventive faculty. Principle, Security.
Particular situations may indicate the necessity of departing from this general rule, by corresponding dispositions. For a much stronger reason, individuals may depart from it themselves, by agreements made among themselves. Indication can here only be made of the principles: their application would be out of place.
OF THE RIGHTS AND OBLIGATIONS ATTACHED TO DIFFERENT PRIVATE CONDITIONS.
We now proceed to consider in greater detail the rights and obligations which the law attaches to the different conditions which compose the domestic or private condition. These conditions may be divided into four—those of
If we were to follow the historical or the natural order of these relations, the last in the list would become the first: for the sake of avoiding repetitions, beginning with the most simple object has been preferred. The rights and obligations of a father and a husband are composed of the rights and obligations of a master and a guardian; these two first conditions are the elements of all the others.
OF MASTER AND SERVANT.
When the question of slavery is not considered, there is little to say respecting the condition of master and its correlative conditions, constituted by the different kinds of servants. All these conditions are the effects of contracts; these contracts the parties interested may arrange to suit themselves.
The condition of master, to which the condition of apprentice corresponds, is a mixed condition: the master of an apprentice is at the same time master and tutor; tutor for the art which he teaches, master as to the profit which he derives from him.
The work that the apprentice does, after the period at which the produce of his labour is worth more than what it costs to develope his talent, is the salary or reward of the master for his former pains and expenses.
This salary will naturally be greater or less according to the difficulty of the art. Some arts may be learnt in seven days; others may require seven years. The competition among the dealers regulates the price of these mutual services, as well as of all other objects of commerce: and here, as in other cases, industry finds its just reward.
The greater number of governments have not adopted this free system. They have sought to establish what they call order among the professions; that is, to substitute an artificial for a natural arrangement, that they might have the pleasure of regulating that, which would regulate itself. As they have meddled with what they did not understand, they have been most frequently led by an idea of uniformity in objects of very different natures. For example, the ministers of Elizabeth fixed the same term of apprenticeship, the term of seven years, for the most simple as well as for the most difficult arts.
The regulating mania disguised itself under a common pretext. It would perfect the arts; it would prevent there being any bad workmen; it would secure the credit and the honour of the national manufactures. For the accomplishment of this object, a natural and simple method presented itself: permission to every one to use his own judgment, to reject the bad, to choose the good, to determine his preferences by merit, and thus to excite emulation in all the artists by the liberty of competition. But no:—it determined that the public was not in a condition to judge of the quality of any work; but so soon as a workman had been employed upon a certain kind of labour a certain number of years, his work ought to be regarded as good. That the proper question to be asked respecting an artisan is not, does he work well? but how long has been his apprenticeship? for if it be necessary still to judge of work by its merit, so much the better would it be to allow every one liberty to work at his own peril and risk.
One might then be a master without having served an apprenticeship; another might remain all his life only an apprentice.
When the habit of serving forms a condition, and the obligation of continuing in this condition with respect to a certain individual, or to others who derive their titles from him, embraces the whole life of the servant, this condition is called slavery.
Slavery is susceptible of many modifications and alleviations, according to the greater or less certainty of the services which it is permitted to exact, and according to the means of coercion which it is permitted to employ. There was a great difference between the condition of a slave at Athens and Lacedemon; there is still more between that of a Russian serf and a negro in the southern states of America. But whatever may be the limits as to the modes of exercising authority, if the obligation of service be unlimited in point of duration, I always call it slavery. In drawing the line of separation between slavery and freedom, it is necessary to stop at some point, and this appears the most prominent and the most easily proved.
This characteristic mark drawn from its perpetuity, is so much the more essential, in as much as, wherever it is found, it weakens, it enervates, it renders more or less precarious the most prudent precautions for the initigation of authority. Unlimited power, in this sense, can with difficulty be limited in any other. If we consider, on the one hand, the facility which the master possesses of aggravating his yoke by degrees; of rigorously exacting the services which are due to him; of extending his pretensions under divers pretexts; of seeking out opportunities for tormenting an insolent subject, who has dared to refuse that which he did not owe: if we consider, on the other hand, how difficult it is for slaves to claim and obtain legal protection; how much more distressing their domestic condition becomes after a public struggle against their master; how much rather they are led to seek his favour by unlimited submission, than to irritate him by refusal;—we shall easily perceive that the project of mitigating slavery by law, is more easily formed than executed; that the fixation of services is a very feeble instrument in the mitigation of the lot of slavery; that under the empire of the best laws in this respect, their most flagrant infractions only will be punished, whilst the ordinary course of domestic rigour will mock all tribunals. I do not, therefore, say that slaves ought to be abandoned to the absolute power of the master; that they ought not to receive any protection from the laws, because this protection is insufficient. But it was necessary clearly to point out this circumstance, to show the evil inherent in the nature of slavery, namely, the impossibility of subjecting the authority of a master over his slaves to legal restraint, and of preventing the abuse of his power, if he be disposed to abuse it.
That slavery is agreeable to the masters, is not doubtful—since they could, in an instant, cause it to cease if they wished so to do; that it is disagreeable to the slaves, is a fact no less certain—since they are only retained in this condition by restraint. No one who is free is willing to become a slave; no one is a slave but he wishes to become free.
It is absurd to reason as to the happiness of men, otherwise than with a reference to their own desires and feelings. It is absurd to seek to prove by calculation, that a man ought to be happy when he finds himself miserable, and that a condition into which no one is willing to enter, and which every one desires to leave, is in itself a pleasant condition, and suited to human nature. I can easily believe that the difference between liberty and slavery is not so great as it appears to be to some ardent and prepossessed minds. Being accustomed to the evil, and much more, never having experienced the better condition, the interval which separates these two conditions, which at first sight appear so opposed, is greatly diminished. But all reasonings upon probabilities are superfluous, since we have proofs of the fact, that this condition is never embraced from choice, but, on the contrary, that it is always an object of aversion.
Slavery has been compared to the condition of a scholar prolonged during life; and how numerous are the persons, who have said that the time passed at school was the happiest period of their life?
The parallel is correct only in one respect. The circumstance common to the two conditions is subjection; but it is any thing rather than this circumstance which produces the happiness of the scholar. That which renders him happy, is the freshness of spirit, which gives to all his impressions the charm of novelty; it is the comparison of the noisy and active pleasures in which he engages with companions of his own age, with the solitude and the quiet of his father’s house. And after all, how many are the scholars who have sighed for the moment when this condition should cease? Who among them would resolve to remain a scholar always?
If it could be arranged in such a manner that slavery should be so established that there should be only one slave to one master, there might be ground for hesitation in pronouncing before-hand which would have the advantage, and which the disadvantage; and it might be possible, that, all things considered, the sum of good in this arrangement would be nearly equal to that of evil.
But things are not thus arranged. As soon as slavery is established, it becomes the lot of the greatest number. A master counts his slaves as his flocks, by hundreds, by thousands, by tens of thousands. The advantage is only on the side of a single person; the disadvantages are on the side of the multitude. If the evil of slavery were not great, its extent alone would suffice to make it considerable. Generally speaking, and every other consideration apart, there can, therefore, be no ground for hesitation between the loss which would result to the masters from enfranchisement, and the gain which would result from it to the slaves.
Another strong argument against slavery may be drawn from its influence upon the wealth and power of nations. A free man produces more than a slave. Set at liberty all the slaves which a master possesses, this master would, without doubt, lose a part of his property; but the slaves, taken together, would produce not only what he lost, but still more. But happiness cannot but be augmented with abundance, whilst public power increases in the same proportion.
Two circumstances concur in diminishing the produce of slaves: the absence of the stimulus of reward, and the insecurity of their condition.
It is easily perceived, that the fear of punishment is little likely to draw from a labourer all the industry of which he is capable, all the work that he can furnish. Fear leads him to hide his powers, rather than to show them; to remain below, rather than to surpass himself.
By a work of supererogation, he would prepare punishment for himself: he would only raise the measure of his ordinary duties by displaying superior capacity. His ambition is the reverse of that of a free man; and he seeks to descend in the scale of industry, rather than to ascend. Not only does he produce less; he consumes more, not in enjoyment, but lavishly, wastefully, and by bad economy. Of what importance to him are interests which are not his own? Every thing which saves his labour is a gain for him; every thing which he allows to be lost, is only the loss of his master. Why should he invent new methods of doing more or doing better? In making improvements, he must think; and thinking is a labour to which no one gives himself without a motive. Degraded to a beast of burden, a slave never raises himself above a blind routine, and one generation succeeds another without any progress in improvement.
It is true that a master, who understands his own interests, will not dispute with his slaves the little profits which their industry may furnish to them: he will not be ignorant that their prosperity is his own, and that to animate them to labour, he must offer them the allurement of an immediate reward. But this precarious favour, dependent on the character of the individual, is not sufficient to inspire in them that confidence which directs the views to the future, which shows in the savings of to-day the foundation of future wealth, and which leads to extended projects respecting the fortune of their children. They well understand, that the richer they are the more they are exposed to extortion, if not from their master, at least from his agents, and all their subordinates in authority, more greedy and more formidable than their master. There is, therefore, no to-morrow for the greater number of slaves. The enjoyments which are realized at the instant are those alone which can tempt them. They, therefore, become gluttons, idle, dissolute, without reckoning the other vices which result from their situation. If they have a longer foresight, they hide their little treasures. All the faults destructive of industry, and all the habits most mischievous to society, are nourished in them by the sad feeling of insecurity, without compensation and without remedy. This result is not the deduction of a vain theory, it is a result drawn from facts, in all times and all places.
But it is said, the free labourer in Europe is very nearly upon the same footing, with regard to labour, as the slave. He who is paid by the piece has reward for his motive, and each effort has its payment. He who is paid by the day has no other motive than punishment; whether he does little or much, he receives only his day’s wages, therefore he has no reward. If he does less than usual, he may be discharged, as the slave in the same case may be beaten; the one and the other are excited only by fear, and have no interest in the produce of their labour.
Three things may be replied:—1. It is not true that the day-labourer has not the motive of reward. The most skilful and the most active are better paid than others; those who distinguish themselves are more constantly employed, and are always preferred for the most lucrative employments: here, then, is a real reward which accompanies all their efforts.
2. If he were actuated by no other than penal motives, there would be still more hold upon the day-labourer than upon the slave. The free labourer has his point of honour as well as others. In a free country, shame attaches to the character of an idle or unskilful workman; and in this respect the eyes of his companions are so many helpers to those of the master: this punishment of the popular sanction is inflicted upon a multitude of occasions, by judges who have no interest in sparing it. Hence they exercise reciprocal inspection, and are sustained in their efforts by emulation. This motive has much less force upon slaves: the treatment to which they are subject renders them but little sensible of so delicate a punishment as that of shame; and as the injustice of labouring for the advantage of another, without indemnification, has not escaped their observation, slaves have no shame in acknowledging one to another a dislike to labour, which is common to them all.
3. Whatever appears to the day-labourer as a gain, is a certain gain; every thing which he acquires is his own, and no one else has a right to touch it: but we have seen that there is no real security for the slave. Exceptions in this respect may be cited. Some Russian nobleman, for example, may possess industrious slaves who possess many thousands of roubles, and who enjoy them as their master enjoys his property; but these are particular cases, which do not alter the ordinary rule. When a judgment is to be formed respecting a general arrangement, it is not necessary to stop at these singular and transient cases.
In this short exposition of the inconveniences of slavery, no attempt has been made to excite emotion, nothing has been addressed to the imagination, no odious character has been thrown upon masters in general: by generalizing particular abuses of power, nothing has been said of the terrible methods of rigour and constraint employed in their domestic government, without law, without process, without appeal, without publicity, and almost without restraint: since responsibility, as we have seen, can only exist in extraordinary cases. Every thing which belongs to feeling may be easily accused of exaggeration, but the simple evidence of reason cannot be gainsayed, and it is so strong there can be no need to employ any suspicious colours. The proprietors of slaves, whom personal interest has not made insensible to feeling and humanity, must acknowledge the advantages of liberty, and desire the abolition of slavery, if this abolition could take place without overturning their own condition and their fortunes, and without attacking their personal security. The injustice and the calamity which have accompanied precipitate attempts, form the greatest objection against projects of emancipation.
This operation need not be suddenly carried into effect by a violent revolution, which, by displeasing every body, destroying all property, and placing all persons in situations for which they were not fitted, might produce evils a thousand times greater than all the benefits that can be expected from it.
Instead of rendering emancipation burthensome to the master, it ought, as much as possible, to be rendered advantageous to him: and the first means which naturally offers itself for this purpose, is to fix a price at which every slave shall have the right to purchase his freedom. Unhappily this means is exposed to one strong objection: when the interest of the master is opposed to that of the slaves, he would prevent their obtaining the sum fixed for their ransom. To leave them in ignorance, to keep them in poverty, to clip their wings in proportion as they grew—such would be his policy. But there is this danger only in fixing the price: the liberty of purchasing his freedom by mutual consent has no such inconvenience. The interest of the slave will lead him to work well for himself, that he may have a large price to offer. The interest of the master will lead him to allow his slave rapidly to enrich himself, that he may derive the greater ransom from him.
A second method consists in limiting the right of making a will, in such manner, that in those cases where there is no successor in the direct line, emancipation should be of right. The hope of inheritance is always very weak in distant successions, and this hope would no longer exist when the law became known. There would be no injustice, when no expectation was disappointed.
It would be possible even to go a step further: at each change of ownership, even in the nearest successions, a small sacrifice might be made of property in favour of liberty: for example, a tenth part of the slaves might be set at liberty. An inheritance which has just devolved does not present to the heir a determinate value. The diminution of a tenth would be scarcely sensible. At this period this would be less a loss than a privation of gain. Upon nephews, who have, from another side, received an inheritance from their fathers, the tax in favour of liberty might be still heavier.
This offering to liberty ought to be determined by lot. Choice, under the pretext of honouring the most worthy, would be a source of cabals: it would cause more discontent and jealousy than happiness. The lot is impartial; it gives all an equal chance of happiness; it spreads the charm of hope among those whom it does not favour; and the dread of being deprived of this chance, on account of any crime committed, would be another bond to the fidelity of the slaves.*
Emancipation ought to take place by families, rather than by individuals. A father a slave, and a son free; a son a slave, and a father free. The contrast is sad and shocking!—a source of domestic grief.
There are other means of accelerating this desirable object; but they can only be discovered by studying the particular circumstances of each country.
However, the bonds of slavery, which the legislator cannot break by a single blow, time destroys by little and little; and the march of liberty, though slow, is not the less certain. All the progress of the human mind, of civilization, of morality, of public wealth, of commerce, hasten forward, by degrees, the restoration of individual liberty. England and France were once what Russia, the Polish provinces, and part of Germany, are at present.
Landowners need not be alarmed at this change. Those who possess the soil have a natural power over those who live by their labour. The fear that the emancipated bondsmen, once free, would remove, would abandon their native soil, and leave the earth uncultivated, is absolutely chimerical, especially if emancipation were effected in a gradual manner. Because the slave escapes when he can, it is not to be concluded that the free man will remove. The opposite conclusion would be more correct. The motive for flight no longer exists, and all the motives for remaining are strengthened.
In Poland, some landowners, enlightened as to their own interests, or animated by a love of glory, have effected a total and simultaneous emancipation in their vast seignories. Did this generosity cause their ruin? Altogether the contrary. The farmer, interested in his labour, has been in a condition to pay more than the slave; and their lands, cultivated by free hands, have received every year a new and increased value.
OF GUARDIAN AND WARD.
The weakness of infancy requires continual protection. Every thing must be done for the infant, which can do nothing for itself. The perfect development of its physical powers requires many years: the development of its intellectual faculties is more slow. At a certain age, it has already strength and passions, but it has not yet sufficient experience to regulate them. Too sensible of the present, and too little sensible of the future, it requires an authority more immediate than that of the laws; it requires to be governed by rewards and punishments, which do not act at long intervals, but continually, and which may be adapted to all the details of its conduct, during the progress of its education.
The choice of a situation in life, or of a profession for a child, also requires that he should be subject to a particular authority. This choice, founded upon personal circumstances, upon expectations, upon talents, or the inclinations of the young pupils; upon their facility of applying to one thing in preference to another—in a word, upon the probability of success; this choice is too complicated to be made by the public magistrate; each case requires particular consideration, and its decision such an acquaintance with particular details as a public magistrate cannot possess.
This power of protection and government, with respect to individuals considered incapable of protecting and governing themselves, constitutes Guardianship: a kind of domestic magistracy, founded upon the manifest wants of those who are subject to it, and which ought to comprehend all the powers necessary for attaining its end, without going beyond it.
The powers necessary for the education of a ward, are those of choosing his station, and fixing his habitation, together with the means of reprimanding and correcting him, without which authority would be inefficacious. These means may be the more easily reduced upon the side of severity, in proportion as their application is more certain, more immediate, and more easily varied, and because domestic government possesses an inexhaustible fund of rewards; since during the period in which every thing is received, there is no concession which may not be made to take the shape of reward.
With regard to the subsistence of the ward, it can only be derived from three sources; either his own property, or from gifts, or from his labour.
If the ward possess property, it is administered in his name and for his advantage by his guardian; and all that he does in this respect, according to prescribed forms, is ratified by the law.
If the ward have no property, he is supported either at the expense of the guardian, as is most commonly the case where the guardianship is exercised by the father or mother of the child; or at the expense of some charitable establishment; or, it may be, by his own labour, as in the case where his services are engaged in an apprenticeship, in such manner that the period of his non-value is compensated for by the subsequent period.
Guardianship being an office purely burthensome, this service is made to fall upon those who have the greatest inclination and facility for discharging it. The father and mother are eminently in this situation. Natural affection generally more strongly disposes them to it than the law; still, however, the law which imposes it on them is not useless. It is because children have been abandoned by the immediate authors of their being, that this abandonment has been constituted a crime.
If the dying father have appointed a guardian to his children, it is presumed that no person has known better than he, who had the means and inclination to supply his place in this respect. Hence his choice should be confirmed, unless there be strong reasons to the contrary.
If the father have not provided a guardian, this obligation should fall upon a relation, attached by interest to the preservation of the family property, and by affection or honour to the welfare and education of the children. In default of a relation, some friend of the orphans should be chosen, who will voluntarily discharge this office: or some public officer should be appointed for this purpose.
It is proper to pay attention to the circumstances which may render guardianship unnecessary:—Advanced age, a numerous family, infirmities, or reasons of prudence and delicacy, for example, complication of interests, &c.
The particular precautions against the abuse of this power belong to the penal laws against offences:—an abuse of authority against the person of the ward, is referable to the class of personal injuries; illicit gains derived from his fortune, to that of fraudulent acquisitions, &c. The only thing to be considered is the peculiar circumstance of the offence, the violation of confidence. But though this renders the offence more odious, it is not always a reason for augmenting its punishment; on the contrary, we shall see elsewhere that it is often a reason for diminishing it: the position of the delinquent being more particular, the detection of the offence is more easy, reparation is more certain, and the alarm is less. In the case of seduction, the character of guardian is an aggravation of the offence.
As regards general precautions, guardianship has often been subject to division, by giving the administration of the property to the next of kin who is entitled to succeed to it, who, in character of heir, will have the greatest interest in increasing its value; and the care of the person to some other relation, more interested in the preservation of his existence.
Some legislators have taken other precautions, such as forbidding guardians to purchase the property of their wards, or of permitting to these to re-enter upon their property sold within a certain number of years after attaining their majority. Of these two methods, the first does not appear subject to great inconveniences; the second can only affect the interests of the ward, by diminishing the price of his lands, in as much as the value is diminished to the purchaser himself, in proportion as his possession is rendered precarious, and he is afraid to undertake improvements which might prove disadvantageous to him, by furnishing an additional motive for re-entry. Both these methods appear useless, if the sale of the property be only permitted to be made publicly, and under the inspection of the magistrate.
The most simple method is to allow any person to act in legal matters as the friend of the infant against his guardians, either in cases of malversation as to his property, or of negligence or violence. The law would thus put these feeble beings, who are unable to protect themselves, under the protection of every generous individual.
Pupillage being a state of dependence, is an evil which ought to cease as soon as it is possible, without occasioning a greater evil. But at what age ought this emancipation to take place? This question can only be decided by general presumptions. The English law, which has fixed the epoch at the age of twenty-one years, seems much more reasonable than the Roman law, which has been followed in almost every country in Europe, and which fixed it at twenty-five years. At twenty-five years old, the faculties of the man are developed; he is sensible of all his powers; he yields to advice what he refuses to authority, and will be not longer content to be restrained by the bonds of childhood: hence the prolongation of domestic authority often produces a state of animosity and irritation, equally hurtful to both the parties interested. But there are some individuals who never reach maturity, or who reach it much later than others. Provision may be made for these cases by interdiction, which is only a prolongation of guardianship during a prolonged childhood.
OF PARENT AND CHILD.
We have already said, that in certain respects a parent is the master of his child, and in others the guardian.
In the character of a master, he will possess the right of imposing labour upon his children, and of employing their labour for his own advantage, until the age at which the law establishes their independence. This right which is given to parents, is an indemnity for the trouble and expense of the education of their children. It is desirable that parents should possess an interest, and take pleasure in the education of their children; whilst this advantage which they may find in rearing them, is not less a benefit for the one than the other.
In the character of guardian, a parent possesses all the rights and all the obligations of which mention has been made under that head.
Under the first relation, the advantage of the parent is considered; under the second, that of the child is considered. These two characters are easily reconciled in the hands of a parent, in consequence of the natural affection which leads him rather to make sacrifices for his children, than to make use of his rights for his own advantage.
It would seem at the first glance, that the legislator need not interfere between parents and children, and that he might rely upon the tenderness of the one, and the gratitude of the others. But this superficial view would be deceptive. It is absolutely necessary, on one side, to limit the parental power, and on the other, to support filial respect by the laws.
General Rule. It is not proper to give any power, from the exercise of which the child may lose more than the father would gain.
When, in Prussia, the right was given to the father, in imitation of the Romans, of preventing his son from marrying without limitation of age, this rule was not observed.
Political writers have fallen into opposite excesses with respect to the parental authority. Some have sought to render it despotic, as among the Romans; others have sought to annihilate it. Some philosophers have thought that children ought not to be subject to the caprice and ignorance of parents; that the state ought to educate them in common. The systems of Sparta, Crete, and the ancient Persians, are cited in support of this plan. It is forgotten that this public education was only provided for a small class of the citizens; because the mass of the people was composed of slaves.
In this artificial arrangement, beside the difficulty of apportioning the expense, and the evil of making those parents support the burthen who no longer stand in need of the service, and who would no longer be actuated by a feeling of tenderness for their children, who would have become almost strangers to them, there would also arise a greater inconvenience to the pupils: they would not be early prepared for the diversity of conditions which they would be called to occupy. The choice even of a profession or business depends upon so many circumstances, upon which parents alone can determine, that no one else can judge of what is suitable for them, nor of the expectations nor of the talents and inclinations of these young pupils. Besides, this plan, in which the reciprocal affection between parents and children is reckoned as nothing, would be productive of the worst effects; by destroying family feeling—by weakening the conjugal union—by depriving the fathers and mothers of those pleasures which they derive from beholding this new generation which springs up around them. They would not seek the future welfare of children, who would no longer be their property, with the same zeal. They would not feel towards them a regard which they could not hope to inspire. Industry, no longer excited by paternal affection, would not possess the same activity. Domestic enjoyments would take a course less advantageous to general prosperity.
As a last reason, it may be added, that the natural arrangement, leaving the choice, the manner, and the expense of education to the parents, may be compared to a series of experiments, having for their object the perfection of the general system. Every thing is advanced and developed by this emulation of individuals; by the difference of views and thoughts—in a word, by the variety of particular impulses. But if every thing were cast in the same mould, if instruction every where partook of the character of legal authority, errors would be perpetuated, and there would be no improvement.
This, perhaps, may be considered too long a dissertation respecting a chimera: but this Platonic notion has in our days led certain celebrated authors astray; and an error which has entangled Rousseau and Helvetius, may easily find other defenders.
Under whatever point of view the institution of marriage is considered, the utility of this noble contract is striking. It is the bond of society, the foundation of civilization.
Marriage, considered as a contract, has drawn women from the hardest and most humiliating servitude; it has distributed the mass of the community into distinct families; it has created a domestic magistracy; it has trained up citizens; it has extended the views of men to the future, through their affection for the rising generation; it has multiplied the social sympathies. In order to estimate all its benefits, it is only necessary to imagine, for a moment, what would be the condition of Man without this institution.
The questions relative to this contract may be reduced to seven:—1. Between what persons may it be permitted? 2. What shall be its duration? 3. Upon what conditions shall it be made? 4. At what age? 5. Who shall choose? 6. Between how many persons? 7. With what formalities?
Between what persons shall Marriage be permitted?
If we here follow the guidance of historical facts, we shall be greatly embarrassed, or rather, we shall be unable to deduce a single fixed rule from among the multitude of contradictory customs. Respectable examples are not wanting for authorising unions which we regard as most criminal, nor for prohibiting many which we consider altogether innocent. Every nation has pretended to follow, in this respect, what is called the law of nature, and has viewed with a kind of horror, as polluted and impure, every thing not conformed to its own matrimonial laws. Let us suppose ourselves ignorant of all these local institutions, and only consulting the principle of utility, let us examine between what persons it is proper to permit, and between whom to prohibit this union.
If we examine the interior of a family, composed of persons who differ among themselves in respect of age, sex, and relative duties, strong reasons will present themselves to our minds for prohibiting certain alliances between many individuals of this family.
I see one reason which directly pleads against allowing such marriages at all. A father, a grandfather, or an uncle holding the place of a father, might abuse his power in order to force a young girl to contract an alliance with him which might be hateful to her. The more necessary the authority of the parent is, the less temptation should be given to its abuse.
This inconvenience extends only to a small number of incestuous cases, and it is not the most weighty. It is in the corruption of manners, in the evils which would result from transitory connexions without marriage, that the true reasons for prohibiting certain alliances must be sought.
If there were not an insurmountable barrier against marriages between near relations, called to live together in the greatest intimacy, this close connexion, these continual opportunities, even friendship itself and its innocent caresses might kindle the most disastrous passions. Families, those retreats in which repose ought to be found in the bosom of order, and where the emotions of the soul, agitated in the scenes of the world, ought to sink to rest—families themselves would become the prey of all the inquietudes, the rivalries, and the fury of love. Suspicion would banish confidence; the gentlest feelings would be extinguished; and eternal enmities and revenges, of which the idea alone makes one tremble, would usurp their place. The opinion of the chastity of young women, so powerful an attraction to marriage, would not know upon what to repose, and the most dangerous snares in the education of youth would be found even in the asylum where they could be least avoided.
These inconveniences may be arranged under four heads:—
1. Evil of Rivalry.—Danger resulting from a real or suspected rivalry between a bridegroom and certain persons of the number of his relations or connexions.
2. Hindrance of Marriage.—Danger of depriving the daughters of the chance of forming a permanent and advantageous establishment by means of marriage, by diminishing the security of those who may desire to espouse them.
3. Relaxation of Domestic Discipline.—Danger of inverting the relations among those who ought to command, and those who ought to obey; or, at least, weakening the tutelary authority, which, for the interests of minors, ought to be exercised over them by the heads of the family, or those who hold their place.
4. Physical Injury.—Dangers which may result from premature indulgences, with respect to the development of the powers and the health of the individuals.
Shall a man be permitted to marry the sister of his deceased wife?
* There are reasons for and against. The condemnatory reason is the danger of rivalry during the life of the two sisters. The justifying reason is the advantage of the children. If the mother die, what a happiness for them to find a mother-in-law in their own aunt! What so likely to moderate the natural dislike to this connexion, as so near a relation? This last reason appears to me most weighty. But in order to obviate the danger of rivalry, power ought to be given to the wife to interdict her house to her sister. If the wife do not wish to have her own sister near her, what legitimate motive can the husband have for admitting this stranger near to him?
Shall a man be permitted to marry the widow of his brother?
There are reasons for and against, in this as in the preceding case. The condemnatory reason is still the danger of rivalry. The justifying reason is still the advantage of the children. These reasons appear to me to have little force on either side.
My brother has no more authority over my wife than a stranger, and can only see her with my permission. The danger of rivalry appears less great upon his part than that of any other. The opposing reason is reduced almost to nothing. On the other side, what the children have to fear from a father-in-law is trifling. If a mother-in-law be not the enemy of the children of another bed, it is a prodigy; but a father-in-law is commonly their friend, their second guardian. The difference of the condition of the two sexes, the legal subjection of the one, the legal empire of the other, expose them to opposite foibles, which produce contrary effects. The uncle is already the natural friend of his nephews and nieces. They have nothing to gain in this respect if he become the husband of their mother. If they find in a strange father-in-law an enemy, the protection of their uncle is their resource. Do they find in him a friend? They have acquired another protector which they would not have done if their uncle had become their father-in-law. The reasons for, and the reasons against, having little force on the one side or the other, it seems that the benefit of liberty ought to cause the balance to incline in favour of permitting these marriages.
Instead of the reasons that are given above for prohibiting marriages within a certain degree of relationship, ordinary morality ploughs its way, and decides upon all these points of legislation without the trouble of examination. “These marriages,” it says, “are repugnant to nature; therefore they ought to be proscribed.”
This argument alone does not furnish a justifying reason, in sound logic, for forbidding any one action whatsoever. In those cases in which the repugnance is real, the law is useless. To what good purpose prohibit what no one wishes to do? The natural repugnance is a sufficient prohibition. But in those cases where the repugnance does not exist, the reason ceases. Ordinary morality has nothing further to say respecting the prohibition of the act in question, since all its argument, founded upon natural distaste, is destroyed by the opposite supposition. If it be proper to conform to nature, that is to say, to the inclination of the desires, it is proper equally to conform to its decisions, whatever they may be. If it be proper to prohibit these marriages when they are disliked, it is proper to permit them when they are approved. Nature deserves not more regard when it hates, than when it loves and desires.
It is very seldom that the passion of love developes itself within the circle of individuals among whom it ought properly to be prohibited: a certain degree of surprise seems necessary for exciting this sentiment, a sudden effect of novelty; and it is this which the poets have cleverly expressed by the ingenious allegory of the bow and arrows, and the blindfolding of Cupid. Individuals, accustomed to be seen and to be known from the age which is incapable of conceiving or inspiring desire, will be seen with the same eyes to the end of life—this inclination will find no determinate period for its commencement. The affections have taken another course; they are, so to speak, a river which has dug its own bed, and which cannot change it.
Nature therefore agrees sufficiently well with the principle of utility: still it is not proper to trust to it alone. There are circumstances which may give birth to the inclination, and in which the alliance might become an object of desire, if it were not prohibited by the laws, and branded by public opinion.
Among the Grecian dynasty of the Egyptian sovereigns, the heir to the throne commonly espoused one of his sisters. This was apparently to avoid the danger of an alliance with the family of a subject, or with the family of a stranger. In such a rank, such marriages may be exempt from the inconveniences attendant upon them in private life. Royal opulence admits a separation and a seclusion, which could not be maintained in a medium station.
Policy has produced some examples almost similar in modern times. In our days, the kingdom of Portugal has approximated to the Egyptian custom; the reigning queen has had for her husband her nephew and subject. But in order to efface the stain of incest, Catholic princes and nobles can apply to an experienced chemist, who changes at pleasure the colour of certain actions. Protestants, to whom this laboratory is shut, have not the faculty of marrying their aunts. The Lutherans have, however, given the example of an extension of privileges.
The inconveniences of these alliances are not felt by those who contract them: the evil is altogether in the example. A permission granted to one, makes every body else feel the prohibition as tyrannical. Where the yoke is not the same for all, it appears more weighty to those who bear it.
It has been said, that these marriages into the same blood cause the race to degenerate, and that there is a necessity of crossing the race among men, as well as among animals. This objection might have some value, if under the empire of liberty, marriages among relations should become the most common. But it is enough to refute bad reasons; and even this would be too much, if a good cause were not served when the feeble and fallacious arguments by which it is sought to support it are destroyed. Some well-intentioned persons think that they ought not to take from good morals any of its supports, even when they are founded in falsehood. This error is related to that of the devotees, who have thought to serve the cause of religion by pious frauds: instead of strengthening, they have weakened it, by exposing it to the derision of its adversaries. When a depraved mind has triumphed over a false argument, it reckons that it has triumphed over morality itself.
For what period? Examination of Divorce.
If the law had not determined any thing respecting the duration of the marriage contract; if individuals were permitted to form this engagement, like every other, for a longer or shorter term,—what would be the most common arrangement under the auspices of liberty? Would it be very different from the established rules?
The object of the man in this contract might be only to satisfy a transient passion, and this passion satisfied, he would have had all the advantage of the union without any of its inconveniences. It cannot be the same with the woman: this engagement has for her durable and burthensome consequences. After the inconveniences of pregnancy, after the perils of child-birth, she is charged with the cares of maternity. Hence the union, which confers upon the man pleasures only, is for the woman the commencement of a long circle of pains, whose inevitable termination would be death, if she were not beforehand assured of the cares and protection of a husband, both for herself and the germ which she ought to nourish in her bosom. “I give myself to you,” she says to him, “but you shall be the guardian of my condition of weakness, and you shall provide for the preservation of the fruit of our love.” Such is the beginning of a society which would be prolonged during many years, if we suppose the birth of only a single child; but other births would form other ties; in proportion as years advance, the engagement is prolonged; the limits which might have been first assigned will have disappeared, and a new career will have opened itself to the pleasures and reciprocal duties of the married persons.
When the mother can no longer hope for more children, when the father has provided for the support of the youngest of the family, will the engagement be dissolved? After a cohabitation of many years, will it be supposed that the married persons will separate? Habit will have entwined around their hearts a thousand and a thousand ties which death only could destroy. The children will form a new centre of union; they will create a new source of pleasures and hopes; they will render the father and mother necessary the one to the other, by the cares and charms of a common affection, which no one could share with them. The ordinary course of the conjugal union would therefore be for the duration of life; and if it is natural to suppose, in the woman, sufficient prudence thus to stipulate with respect to her dearest interests, ought less to be expected from a father or a guardian, who possesses more maturity of experience?
The woman has also a particular interest in the indefinite duration of the connexion: time, pregnancy, suckling, cohabitation itself,—all conspire to diminish the effect of her charms. She must expect to see her beauty decline, at a time when the strength of the man still goes on increasing: she knows, that after having spent her youth with one husband, she would with difficulty find a second; whilst the man would not experience a similar difficulty in finding a second wife. Hence this new clause, which foresight would dictate to her: “I give myself to you; you shall not leave me without my consent.” The man demands the same promise; and hence, on both sides, a legitimate contract is founded upon the happiness of the two parties.
Marriage for life is therefore the most natural marriage; the best suited to the wants and circumstances of families; the most favourable for individuals, and for the generality of the species. If there were no laws to ordain it, that is to say, no other laws than those which sanction contracts, this arrangement would be always the most common, because it is that which is most suitable to the reciprocal interests of the persons marrying. Love on the part of the man, love and foresight on the part of the woman, all concur with enlightened prudence and affection on the part of parents, in impressing the character of perpetuity upon the contract of this alliance.
But what should we think if the woman should add this clause: “It shall not be lawful for me to be separated from you, should we come to hate each other as much as we now love one another.” Such a condition would appear to be an act of madness. It is something contradictory and absurd, which shocks at the first glance: every body would agree to regard such a vow as rash, and to think that humanity ought to cause it to be abolished.
But this cruel and absurd clause is not demanded by the woman, is not sought for by the man; it is imposed upon them both, as a condition from which they cannot escape. The law unexpectedly intervenes between the contracting parties: it surprises them in the transports of their youth, in the moments which open all the vistas of happiness. It says to them, “You unite yourselves in the hope of being happy, but I tell you that you enter into a prison, whose door will be closed against you. I shall be inexorable to the cries of your grief, and when you dash yourselves against your fetters, I shall not permit you to be delivered.”
To believe in the perfection of the beloved object, to believe in the eternity of the passion which is felt, and which is inspired—such are the illusions which may be pardoned to two children in the blindness of love. But aged lawyers, legislators whose heads are whitened by years, ought not to give place to this chimera. If they believe in this eternity of these passions, to what good purpose interdict a power which no one would ever wish to use? But no: they have foreseen inconstancy, they have foreseen hatred; they have foreseen that the most violent love may be succeeded by the most violent antipathy, and it is with all the coolness of indifference that they have pronounced the eternity of this vow, even when the sentiment which has dictated it shall be effaced by the contrary feeling. If there were a law which permitted an associate, a guardian, a superintendent, a companion, only on condition of never separating from them, every one would exclaim against such tyranny and such folly. A husband is a companion, a guardian, a superintendent, a partner, and still more, all at once; and yet it is only possible in the greatest number of civilized countries to have eternal husbands.
To live under the constant authority of a man that one detests, is already a species of slavery: to be constrained to receive his embraces, is a misery too great to be tolerated even in slavery itself. It has been said, the yoke is reciprocal:—the reciprocity only doubles the misery.
If marriage commonly present to men the only means of fully and peaceably satisfying the imperious desires of love, to deter them from it, is to deprive them of its sweets, is to produce an evil proportionably great. But what greater bugbear can there be than the indissolubility of this contract? Marriage, service, country, whatsoever condition there is a prohibition against quitting—there is a prohibition against entering.
In conclusion, when death is the only means of deliverance, what horrible temptations, what crimes, may not result from a position so terrible? The unknown instances are perhaps more numerous than those which are known; but that which will most frequently take place in this respect, is the negative offence. When the crime is easy, even to hearts which are not perverted—when nothing more is necessary for its accomplishment than inaction—if a detested wife and an adored mistress are exposed to the same danger—will the same efforts be made, as sincerely, as generously, for the first as for the second?
It is not proper to dissimulate: there are objections against the dissolubility of marriages. We shall endeavour to collect and to answer them.
First Objection.—“Permit divorce, neither of the parties will regard their lot as irrevocably fixed. The husband will cast his eyes around him to find a wife who would be more advantageous: the woman would make similar comparisons, and form projects for changing her husband. Hence perpetual and reciprocal insecurity would result with respect to this precious kind of property, with regard to which the whole plan of life is arranged.”
Answer 1.—This same inconvenience exists in part, under other names, when marriages are indissoluble. According to the supposition, reciprocal attachment is extinct. It is not a new wife that is sought, but a new mistress; it is not a second husband, but another lover. The duties of Hymen, and its prohibitions, too easily eluded, may perhaps serve to excite inconstancy rather than to prevent it. It is well known that prohibitions and constraint serve to stimulate the passions. It is a truth deduced from experience, that even obstacles, by occupying the imagination, by directing the mind to the same object, serve only to strengthen the desire of overcoming them. The reign of liberty produces less wandering fancies than that of conjugal captivity. Render marriages dissoluble, there will be more apparent, but there will be fewer real separations.
2. The inconveniences need not be considered alone: the advantages ought to be regarded also. Each one knowing what he was liable to lose, would cultivate those means of pleasing which originally produced the reciprocal affection. Each will more carefully study the other’s character, and the means of managing it. Each will feel the necessity of making some sacrifices of caprice and self-love. In a word, care, attention, complaisance, will be continued in the married state; and that which was done only to obtain love, will be done to preserve it.
3. Marriageable young persons would be less frequently sacrificed by the avarice and cupidity of their relations. It would be necessary properly to consult their inclinations, before forming bonds which would be broken by repugnancies. The real suitability upon which happiness reposes—the relations of age, education, and taste—would then enter into the calculations of prudence. It would be no longer possible to marry the property, as has been said, without marrying the person. Before an establishment were formed, there would be an examination whether it would be durable.
Second Objection.—“Each party regarding the connexion as transitory, would only espouse with indifference the interests, and especially the pecuniary interests of the other. Hence would arise profusion, negligence, and every species of bad management.”
Answer.—The same danger exists in commercial partnerships, and yet the danger is very rarely realized. A dissoluble marriage has a bond which these partnerships have not, the strongest, the most durable of all moral ties: affection for their common children, which cements the reciprocal affection of married persons. Among indissoluble marriages, is not this bad management more frequently found than in commercial partnerships? Why? It is an effect of the indifference and distaste which give to married persons, who are tired of each other, a continual desire to escape from themselves, and to seek for new distractions. The moral tie of their children is dissolved; their education, the care of their future welfare, is scarcely a secondary object; the charm of their common interest has vanished; each one, in the pursuit of his own pleasures, troubles himself but little with what will happen after him. Hence, a principle of disunion among married persons introduces negligence and disorder, by a thousand channels, into their domestic affairs; and the ruin of their fortune is often an immediate consequence of the estrangement of their hearts. Under the reign of liberty, this evil would not exist. Before there was a disunion of interests, disgust would have separated the persons.
The facility of divorce tends rather to prevent than to give birth to prodigality. It would produce a dread of giving so legitimate a reason for discontent to an associate whose esteem it is desirable to conciliate. Economy, appreciated at its full value by the interested prudence of both parties, would always have so much merit in their eyes as would cover many faults, and in its favour they would pardon many wrongs. It must also be perceived, that in case of a divorce, that one of the two parties who shall have the character of having behaved ill, and been extravagant, would have much less chance of forming other more advantageous connexions.
Third Objection.—“The dissolubility of marriage will give the stronger of the two parties an inclination to maltreat the feebler, for the purpose of constraining its consent to the divorce.”
Answer.—This objection is well founded; it deserves the greatest attention on the part of the legislator. A single precaution, however, is happily sufficient to diminish the danger: in case of maltreatment, liberty to the party maltreated and not to the other. In this case, the more a husband desired a divorce for the purpose of marrying again, the more he would avoid behaving ill towards his wife, for fear lest certain acts should be construed as acts of violence intended to constrain her consent. Gross and brutal methods being forbidden, there remain only gentle methods of engaging her to a separation.
Fourth Objection.—This is drawn from the interest of the children. “What will they do when the law has dissolved the union between the father and the mother?”
Answer.—That which they would have done if death had dissolved it. But in the case of divorce, their disadvantage is not so great: the children may continue to live with the parent whose cares are most necessary for them; for the law, consulting their interest, would not fail to entrust the boys to the father, and the daughters to the mother. The great danger to which children are exposed after the death of a parent, is that of passing under the government of a father or mother-in-law, who shall look upon them with the eyes of an enemy. Daughters especially are exposed to the most vexatious treatment under the habitual despotism of a stepmother. In the case of a divorce this danger does not exist. The boys will have their father for their governor, and the daughters will have their mother. Their education will suffer less than it would have suffered from their domestic strifes and quarrels. If, then, the interest of the children were a sufficient reason for prohibiting second marriages in case of a divorce, it is a still stronger reason for prohibiting them in case of death.
In conclusion, the dissolution of a marriage is an act sufficiently important to be submitted to some formalities, which would at least have the effect of preventing caprice, and allowing the two parties time for reflection. The intervention of a magistrate is necessary, not only for proving that there has been no violence on the part of the man in forcing the consent of the wife, but also for the purpose of interposing a greater or less delay between the demand for a divorce and the divorce itself.
This is one of those questions upon which opinions will be always divided. Every one will be led to approve or condemn divorce according to the good or evil which he has seen resulting from particular cases, or according to his particular interest.
In England, a marriage may be dissolved in case of adultery. But it is necessary to seek for a divorce through many tribunals; and an act of parliament upon this subject costs at least five hundred pounds sterling. Divorce is therefore accessible only to a very limited class.
In Scotland, adultery is a sufficient ground for a divorce. The law is mild in this respect, but it has a rigorous side: it does not permit the culpable party to contract another marriage with the accomplice of his guilt.
In Sweden, divorce is permitted for adultery on both sides: this amounts to the same as if it were permitted upon mutual consent; the man allows himself to be accused of adultery, and the marriage is dissolved. In Denmark, the law is the same, at least when collusion cannot be proved.
Under the Code Frederick, parties might separate by agreement, and afterwards be remarried, upon condition of remaining single a whole year. It would seem that this interval, or a part of this interval, would have been better employed in delay before granting the divorce.
At Geneva, adultery was a sufficient reason; but the separation might also be effected on account of simple incompatibility of character. A woman, by quitting the house of her husband, and retiring to that of her friends and relations, afforded grounds for a demand, which had always the legal effect of a divorce. Divorces were, however, rare; but as they were proclaimed in all the churches, this proclamation acted as a species of punishment or public censure, which was always dreaded.
When marriages were rendered dissoluble in France at the will of the parties, there were between five and six hundred divorces at Paris in two years; but these took place whilst the institution was new, and when, therefore, it would not be possible to judge of its usual operation.
Divorces are not common in those countries in which they have been long authorized. The same reasons which hinder legislators from permitting them, deter individuals from availing themselves of them when they are permitted. The government which interdicts them, takes upon itself to decide, that it understands the interests of individuals better than they do themselves. The effect of the law is evil or null.
In all civilized countries, the woman who has experienced ill-treatment on the part of her husband, has obtained from the tribunals what is called a separation. There does not result from this, permission to either of the parties to re-marry. The ascetic principle, the enemy of pleasure, has permitted the mitigation of punishment; but the injured wife and her tyrant are subjected to the same condition. This apparent equality covers great real inequality. Opinion allows great liberty to the stronger sex, but imposes great restraint upon the weaker one.
On what Conditions?
The only inquiry at present is, what are the matrimonial conditions which, according to the principle of utility, are suitable to the greatest number: for it ought to be lawful for the parties interested in these contracts, to make their own particular stipulations; in other words, the conditions ought to be left to their own will, saving the ordinary exceptions:—
First Condition.—“The wife should submit to the laws of the husband, saving recourse to justice.” Master of the wife as to what regards his own interests, he ought to be guardian of the wife as to what regards her interests. Between the wishes of two persons who pass their life together, there may at every moment be a contradiction. The benefit of peace renders it desirable that a pre-eminence should be established, which should prevent or terminate these contests. But why is the man to be the governor? Because he is the stronger. In his hands power sustains itself. Place the authority in the hands of the wife, every moment will be marked by revolt on the part of the husband. This is not the only reason: it is also probable that the husband, by the course of his life, possesses more experience, greater aptitude for business, greater powers of application. In these respects there are exceptions; but the question is, what ought to be the general law?
I have said, “saving recourse to justice;” for it is not proper to make the man a tyrant, and to reduce to a state of passive slavery the sex which, by its weakness and its gentleness, has the greatest need of protection. The interests of females have too often been neglected. At Rome, the laws of marriage were only the code of the strongest, and the shares were divided by the lion. But those who, from some vague notion of justice and of generosity, would bestow upon females an absolute equality, would only spread a dangerous snare for them. To set them free, as much as it is possible for the laws so to do, from the necessity of pleasing their husbands, would be, in a moral point of view, to weaken instead of strengthen their empire. The man, secure of his prerogative, has no uneasiness arising from his self-love, and derives enjoyment even from sacrificing it. Substitute to this relation a rivalry of powers, the pride of the strongest would be continually wounded, and would prove a dangerous antagonist for the more feeble; and placing a greater value upon what was taken, than upon what was still possessed, it would direct all its efforts to the re-establishment of its pre-eminence.
Second Condition.—“The administration should belong to the man alone.” This is a natural and immediate consequence of his empire. Besides, it is commonly by his labour that the property is acquired.
Third Condition.—“The right of enjoyment should be in common.” This condition is admitted; 1st, For the benefit of equality. 2d, In order to give to both parties the same degree of interest in the domestic prosperity: but this right is necessarily modified by the fundamental law, which subjects the wife to the authority of the husband.
The diversity of conditions, and the nature of property, would require many details on the part of the legislator. But this is not the place for stating them.
Fourth Condition.—“The wife shall observe conjugal fidelity.” The reasons which direct that adultery should be considered as a crime, need not be exposed here; they belong properly to the penal code.
Fifth Condition.—“The husband shall observe similar conjugal fidelity.” The reasons for considering the adultery of the husband as criminal will also belong to the penal code: they have less weight, but there are still sufficient reasons for establishing this legal condition.
At what Age?
At what age should it be lawful to marry? It ought not to be before the age at which the contracting parties can be considered capable of understanding the value of this engagement; and more regard should be paid to this particular, in those countries in which marriages are considered indissoluble. How many are the precautions which ought to be taken, in order to prevent a rash engagement, when repentance would be useless! The right ought not, in this case, to have a period anterior to that at which the individual enters upon the administration of his property. It would be absurd that a man should be able to dispose of himself for ever, at an age at which it is not lawful for him to sell a field of the value of ten crowns.
Who shall choose?
Upon whom shall the choice of a husband or a wife depend? This question presents an apparent, if not a real absurdity; as if such a choice could belong to any other than the party interested.
The laws ought never to entrust this power to the parents;—they want two things requisite for its beneficial exercise, the requisite knowledge, and a will directed to the right end. The manner in which parents and children see and feel, is not the same; they have not the same interests. Love is the moving principle of youth; the old scarcely feel it. Fortune, in general, is a feeble consideration among children; it is an important one with parents. What the child wishes, is to be happy; what the parent wishes, is that he may also appear to be so. The child would sacrifice every thing for love; but the parents would often sacrifice this interest to every other.
To receive into their family a son-in-law, or a daughter-in-law, whom they dislike, is a disagreeable circumstance; but is it not much more cruel for the children to be deprived of the husband or the wife which would make them happy? Compare the sufferings on both sides. Is there any equality? Compare the probable duration of the life of the parent and the child: see if you ought to sacrifice that which is just commencing, to that which is drawing to a close. Thus much for the simple right to prevent. What shall be said if, under the mask of a parent, an unpitying tyrant should seek to abuse the gentleness and timidity of his child, in order to compel a union with a person that was detested?
The connexions of children depend greatly upon those of their parents. This is partly true as respects the sons, and entirely as respects the daughters. If the parents neglect to use this right; if they do not strive to direct the inclinations of their family; if they leave the choice of their acquaintances to chance,—to whom are the imprudences of their youth to be ascribed? In conclusion, in taking from them the right to bind or to compel, it is not necessary to take from them that of modifying and retarding. Two periods may be distinguished in the marriageable age: During the first, want of consent on the part of the parents ought to suffice for annulling the marriage. During the second, they should still have the right to retard for some months the completion of the contract. This time should be given them, that they might make use of their advice.
There exists a custom sufficiently singular in one country in Europe renowned for the wisdom of its institutions: The consent of the parents is necessary to the marriage of minors, unless the lovers can travel a hundred leagues without being stopped. But if they have the good fortune to cross a small stream, ascend a slight hill, and reach a certain village, they may in a moment pronounce the nuptial vow before the first comer, though he ask them no question—and the marriage is valid, and the parental authority is overthrown. Is it for the encouragement of adventurers that a privilege of this kind is allowed to subsist? Is it from a secret desire to weaken the power of parents, or to favour what are otherwise called unequal matches?
How many contracting Parties?
Between how many persons ought this contract to subsist at one time?—in other words, ought polygamy to be tolerated?—Polygamy is either simple or double. It is simple where there is Polygynia, a multiplicity of wives; or Polyandria, a multiplicity of husbands.
Is polygynia useful or hurtful? Every thing which it has been possible to say in its favour, has only related to certain particular cases, to certain transitory circumstances: when a man, by the sickness of his wife, is deprived of the sweets of marriage, or when, by his profession, he is obliged to divide his time between two residences, as the commander of a vessel, &c.
That such an arrangement may sometimes be desirable to the man, is possible; but it never can be so to the wives. For every man there would always be two wives, whose interest would be sacrificed.
1. The effect of such a license would be to aggravate the inequality of conditions. The superiority of wealth has already too great an ascendancy, and this institution would make it still greater. A rich man, forming an alliance with a woman without fortune, would take advantage of her position to prevent his having a rival. Each of his wives would find herself in possession only of the moiety of a husband, whilst she might have constituted a source of happiness to another man, who, in consequence of this iniquitous arrangement, would be deprived of a companion.
2. What would become of the peace of families? The jealousies of the rival wives would spread among the children. They would form opposed parties, little armies, having each at their head an equally powerful protectrix, at least, with respect to her rights. What a scene of contentions! what fury! what animosity! From the relaxation of the fraternal bonds, there would result a similar relaxation of filial respect. Each child would behold in his father a protector of his enemy. All his actions of kindness or severity, being interpreted by opposite prejudices, would be attributed to unjust feelings of hatred or affection. The education of the children would be ruined in the midst of these hostile passions, under a system of favour or oppression, which would corrupt the one party by its rigours, and the other by its indulgences. In the East, polygamy and peace are found united, but it is slavery which prevents discord: one abuse palliates another; every thing is tranquil under the same yoke.
There results from it an increase of authority to the husband: what eagerness to satisfy him! what pleasure in supplanting a rival by an action which is likely to please him! Would this be an evil or a good? Those who, from a low opinion of women, imagine that they cannot be too submissive, ought to consider polygamy admirable. Those who think that the ascendancy of this sex is favourable to suavity of manners—that it augments the pleasures of society—that the gentle and persuasive authority of women is salutary in a family—ought to consider this institution as very mischievous.
There is no need of seriously discussing polyandria, nor double polygamy. Perhaps too much has been said upon this first subject, if it were not well to show the true foundations upon which manners are seated.
With what Formalities?
The formalities of this contract ought to refer to two objects: 1st, To ascertain the fact of the free consent of the two parties, and of the lawfulness of their union; 2dly, To notify and ascertain the celebration of the marriage for the future. It would also be proper to exhibit to both the contracting powers the rights they are about to acquire, and the obligations with which they will be chargeable according to law.
Most nations have attached a great solemnity to this act; and it is not to be doubted but that ceremonies which strike the imagination, serve to impress the mind with the importance and dignity of the contract.
In Scotland, the law, much too easy, does not require any formality. The reciprocal declaration of the man and the woman, in the presence of a witness, is sufficient to render a marriage valid. Hence it is to a village upon the frontier of Scotland, named Gretna Green, that minors, impatient of the yoke of their parents or guardians, hasten to emancipate themselves by an off-hand marriage.
In instituting these forms, two dangers ought to be avoided: 1st, The rendering them so embarrassing as to prevent a marriage, when neither freedom of consent nor the necessary knowledge are wanting; 2dly, The giving to the persons who ought to concur the power of abusing this right, and of employing it to a bad purpose.
In many countries, it is necessary to tarry long in the vestibule of the temple before advancing to the altar, under the title of affiances: the chains of the engagement are borne, without its advantages. What purpose does this work of supererogation answer, except the multiplication of embarrassments and snares? The Code Frederick is justly chargeable, in this respect, with useless restraints. The English law, on the contrary, has, on this occasion, chosen the part of simplicity and clearness: every one knows to what he is bound: a man is either married, or he is not.
OF THE LEVELLING SYSTEM.*
“All human creatures are born and remain,” says the Declaration of Rights, “equal in rights.” It has hence been argued, that they ought to be equal in property; and that all the distinctions which have grown up in society in this respect, should be swept away, and every individual placed on the same level in point of actual possessions.
Such a system would, however, be destructive both of security and wealth. It would be destructive of security. What a man has inherited from his ancestors—what he has himself earned, he hopes to keep; and this hope cannot be interrupted without producing a pain of disappointment. But if, of two persons, the one is to take from the other a portion of the property he possesses to-day, because he is the poorer; for the same reason, a third should take a portion of such property from both to-morrow, as being poorer than either; and so on, till all security in the possession of property—all hope of retaining it, were altogether abolished.
As no man could, at this rate, be secure of enjoying any thing for two moments together, no man would give himself the trouble to improve any thing by his labour: all men would live from hand to mouth.
While the levelling process is going on, it is destructive to security; when completed, it is destructive, and that for ever, of national opulence. The wealth of a nation is the sum of the fortunes of individuals; but the sum of the fortunes of individuals is reduced by the levelling system in an infinity of ways. Whatever be the quantum of wealth allowed of, to reduce fortunes to this standard the community must be emptied of all articles of wealth, which cannot exist but in a quantum superior to that standard.
The English nation is, for a nation of any considerable size, generally acknowledged to be the richest, in proportion to the number of the people, of any nation under the sun. But in this richest nation, those who have reckoned its wealth at the highest, have not set down the annual expenditure of its inhabitants, taking even the very richest into the account, at more than £20 a-year each. If, then, the whole wealth of the nation were divided with the most perfect equality among its inhabitants; and were all of it capable of being thus divided, it would scarcely be more than sufficient to enable every one of them, so long as the stock of it was kept up at the same level, to spend more than £20 a-year. But were such a distribution to be made, an immense multitude of articles—wealth to an immense amount—must necessarily be struck out, as being incapable of division, and thence incapable of entering into the distribution. At 30 years’ purchase, a perpetual income of £20 a-year corresponds to a capital or principal sum of £600. All articles, therefore, of a value superior to £600, must either be destroyed at once, or left to perish, sooner or later, for want of being kept up; that is, kept in repair, and properly taken care of.
The following, then, are the articles to the existence of which the system in question would be fatal; and that not only in the first instance, but for ever after during its continuance; and of which the aggregate value must therefore be struck out of the aggregate amount of the national wealth.
1. All buildings above the mark; that is, all that would now be thought to come under the name of considerable buildings—all considerable dwelling-houses, warehouses, manufactories.
2. All furniture, except what is now of the meanest kind—all furniture suitable to the circumstances of a family having more than £20 a-year a-head to live on.
3. All horses, except a few of those at present kept for husbandry. No one nor two in a family could afford to keep a horse, since the expense of that article alone would exceed the family income. All horses fit for military service; consequently, a great part of the manure which is supplied by that valuable species of cattle would be lost. In the earliest, and what are vulgarly called the purest times of the Roman Commonwealth, those whose wealth enabled them to serve on horseback formed an order of men, distinct from and superior to those who served on foot. A commonwealth that admitted of such distinctions, could never be tolerated under this system of equalisation.
4. All considerable libraries. All libraries the value of which depended upon their completeness in regard to any particular branch of literature, and of which the characteristic value would be destroyed by the degree of dispersion which the execution of the equalisation plan would necessitate.
5. All considerable collections of natural history; and hence all means of prosecuting that branch of study to advantage would cease.
6. All considerable laboratories and establishments for the prosecution of experimental inquiries with a view to the advancement of agriculture, manufactures, or arts. Hence all means of promoting the advancement, or even preventing the decay of experimental science, would cease.
7. All fortunes capable of affording funds sufficient for the purchase of the constant supply of publications relative to any branch of knowledge at the rate of abundance at which the literary market is supplied with these productions in the present state of things.
8. All fortunes capable of affording funds applicable to the improvement of land, mines, or fisheries, upon an extensive and advantageous scale.
9. All fortunes capable of affording, at an early period of life, a fund in store sufficient for the maintenance of the numbers of children of which the marriage union may in every instance, and in many instances will eventually be productive.
10. The whole value of the labours of those whose industry is at present employed in supplying the productions adapted to the demands of persons in easy circumstances—of all those at present employed as workmen in the different branches of the arts, and of the finer manufactures—all musicians, architects, painters, sculptors, engravers, carvers, gilders, embroiderers, weavers of fine stuffs, florists, and the like. All these, finding nobody rich enough to deal with them, must immediately betake themselves to husbandry or other coarse labour, which their habits of life have disqualified them from exercising to any advantage.
11. The whole of that property which consists in annuities payable by government out of the produce of taxes imposed on the fruits of industry. As those taxes are imposed almost exclusively on superfluities, and all superfluities will be expunged from the book of national wealth, national bankruptcy will be among the necessary and immediate consequences of such a change.
12. Whether it be of advantage or of detriment to the state, or a matter of indifference, that small farms should be laid into large ones, is a controverted point, upon which it is not necessary here to touch. But what can not admit of controversy is, that in a multitude of instances, farms, large or small, would suffer much in value by being broken down into smaller ones. A spring or pond, a convenient communication with the highway or bridge, serves at present for the whole of a farm: divide this farm among a number of proprietors, and only a small part of the original farm, or perhaps no part at all, will now derive any benefit from that conveniency, which before the division was enjoyed by the whole. A certain portion of land fit for one sort of culture, requires certain other portions of land fit for other sorts of culture, to be employed with most advantage;—to so much arable, so much wood, so much meadow land. Under the division, one man has wherewithal to buy the meadow land only, another the wood-land only, and the arable must be divided into several little plots, to come within the quantum of purchase-money which the equalisation plan allows. There are fields, each of them too large for any one purchaser, and which, without new inclosures correspondent to the number of the purchasers, must lose the benefit of inclosure. But the purchaser’s capital is all of it expended in the purchase: he has nothing, no fund left for the expenses of inclosure. One house, one set of outhouses, serves for the whole of the farm in its undivided state. Divide it into the £20 a-year portions, he who gets the dwelling-house is perhaps unable to get the outhouses; if he get the house and outhouses, he perhaps is unable to get any of the land; if he get a small scrap of the land, and it can be but a small one, none of the other fragments of farms carved out of the entire farm has any building belonging to it. But without buildings, they will be worth little or nothing; and as to erecting the buildings, it is impossible: what capital each man had, is expended in the purchase of the naked land. But as every man must have a house to live in, and every man who cultivates a farm must have outhouses of some kind or other to lodge the stock and produce of it, a fund for these articles of indispensable necessity must be provided in the first instance, and the fragments of farms must consequently be reduced to the miserable and unproductive pittance, the annual value of which corresponds to the small remnant of capital that remains to buy them. Thus great is the part of the existing mass of wealth which would therefore be destroyed by the division, as being in its own nature incapable of division. But of that which remained, as not being in its own nature incapable of division, a great part again would be consumed in the process. The whole mass of national property would have to come under the hammer; and every time either the sale of an estate or a division of the produce of the sale came to be made, every sale and every distribution would afford a fresh source of disputes between the plundered and the plundered, between plunderers and plunderers, and between plunderers and plundered, and a fresh demand for the labours, and a fresh harvest for the men of law. Auctioneers with their retainers are already, in the present system of things, in no small number; men of law in greater number than most people would wish to see. On the system in question, the populousness of these predatory professions would be multiplied beyond all measure. An effective tithe of the national property, not to speak of a nominal tithe like the present ecclesiastical one, would scarcely be sufficient for the payment of this enormous mass of unproductive and disastrous services.
Present time, it may be said, is but a point: it is as nothing in comparison with futurity. Admitting that the existing generation might, upon the whole, be losers by such a change, those whose ardent zeal would prompt them to attempt it, may still think, or affect to think, the change an advantageous one for the human species upon the whole. But futurity would have as little reason to rejoice in it as present time.
Opulence is valuable, not merely on its own account, but as a security for subsistence. The rich, were they to deserve proscription because of their riches, deserve to be saved from proscription in quality of bankers to the poor. Estates broken down to the scantling in question, or to any thing like that scantling, would afford no resource against scarcity, or any other calamity, such as fire, famine, or pestilence, that required a considerable treasure in store to be employed to alleviate the load of it. They would afford no fund for the expenses of a war, even of a defensive one.
Along with the whole stock of opulence, would go that branch of security which depends upon the means of national defence. In war, the measure of raising within the year supplies for the service of the year—desirable as such a measure would in the opinion of every one be, if it were practicable, has always been given up as attended with too much difficulty and even danger, to be attempted; and this even in the present state of opulence, when the number of those capable of contributing, and contributing largely, is so great. How would it be when those who were best able to contribute had but £20 a-year to live on? It is now looked upon as impracticable: then it would be beyond measure more so, even though every man had his £20 a-year; much more when that pittance is reduced to perhaps two-thirds, perhaps half, by the various causes of reduction which would be in operation. At the same time, to raise the supplies otherwise than within the year, would be still more palpably impracticable; it would be physically impossible. At present, if so many millions are raised with so much ease within the year by way of loan, it is because there are so many thousands of persons who have each so many thousands of pounds to lend, so many thousands more than they have need to employ otherwise. Upon the equalisation scheme, all these monied men would be no more: nobody would have any thing he could spare for any length of time, much less for ever; no man would have any thing but from hand to mouth.
As to the gainers—(I speak always of the immediate and momentary gainers, for ultimately, as we shall see, there would scarcely be a real gainer left in the nation)—as to the real gainers, if they were to be looked for any where, it would be in the class of the present day-labourers in husbandry. Their employment need not be changed: they would continue labourers in husbandry, with this comfortable difference, as it would be thought, of labouring upon, and for the benefit of their own property, instead of other people’s. But even these would for the most part gain nothing but ruin by the change. Their fragments of farms having no buildings on them, would be useless to them till buildings could be erected. A man might farm profitably, and live comfortably a year or two hence, if he were then alive: but in the meantime he would not be able to farm or live at all. The immense multitude of new created farms, all of them without buildings, would require an immense and instant multiplication of the number of workmen concerned in building. But this number, instead of being multiplied, or so much as increased, would be as immediately and permanently reduced: for they too would have their portions, as well as the labourers in husbandry: if they laboured any longer, it would be upon their own property, not upon other people’s. If they laboured at all, what inducement would they have to labour upon other people’s property, or indeed for other people? What would they get by it? an addition to their respective portions? But that, by the supposition is not to be suffered. No sooner was it become property, than it would come to be divided: no sooner had they got it, than it would be taken from them.
This supposes every body day-labourers and mechanics devoted to industry, disposed to frugality, proof against all temptation to excess, even in the midst of a sudden and unexpected influx of the momentary means of excess and dissipation. But even in the present system of things, this extraordinary degree of moderation is, under such circumstances, hardly to be expected from one in ten among those classes; and under the proposed new system, industry and frugality would be but folly, as we shall presently have occasion to observe.
Who would be the losers—I mean the immediate losers—by such a change? Those, and at first sight it might seem those only, whose present fortunes are above the mark. But these would be but a small part of the real and effective losers. To the list of present proprietors must be added that of all those sons of industry whose present annual earnings are to a certain amount superior in value to the intended common portion;—all professional men in any tolerable practice—physicians, surgeons, lawyers, artists, factors, and the like;—many handicrafts of the superior kind, such as mathematical-instrument makers, millwrights, shipwrights, musical-instrument makers, &c.; and even mere labourers, where the labour is severe, as coal-heavers, &c. earn from £50 to £200 a-year, which the greater part of them are in the habit of spending as it comes. What would be either their present feelings, or even their future advantage, on changing their £50 or £200 a-year for life into a perpetuity even of £20 a-year, supposing the common portion could amount to so much, instead of falling widely short of that mark, as it will soon be seen to do?
Equalisation laws, made at the expense of existing rights and expectations, are alike destructive to present security in respect to property, and to permanent security in respect of subsistence. The desire to establish such laws, or to cause them to be established—the love, the passion for equality, has its root, not in virtue, but in vice; not in benevolence, but in malevolence.
A law of this complexion is a mere act of robbery—but of robbery upon a large scale. In the nature and quality of its effects, it is undistinguishable from the crime that goes by that name; but in point of extent, the mischief of it is as much greater as the power of the government is greater than that of the private robber. The power of the ordinary robber goes not beyond a few moveables; and such moveables as may easily and speedily be conveyed away: the power of the legislating robber extends to immoveables—to every thing—to the future as well as to the present. The power of the ordinary robber extends not beyond the few whom chance may throw in his way: the power of the authorised robber extends over the whole territory of the state.
The passion for equality has no root in the benevolent affections: its root is either simply in the selfish affections, or in the selfish, combined with the malevolent. You being superior to me in wealth or power; my wish is that we may be equal. What is the object of that wish? in what possible way can it have its gratification? In one or other, and only in one or other of two ways: either by raising myself to your level, or by pulling you down to mine. If it be the first only that is in my thoughts, self-interest, and that only, is my ruling motive: if the first and the second, envy conjoined with selfishness are the passions that govern me. The man of benevolence is the man to whom the spectacle of another’s happiness is delightful. The lover of equality, in its most refined form, is the man to whose eyes the spectacle of another’s prosperity is intolerable. What is the envious man but the same? What, then, is this so much boasted passion for equality? It is a propensity which begins in vice and leads to ruin. In the scale of merit, it is as much below selfishness as selfishness is below the virtue of benevolence.
Equality, were it brought to the highest pitch of perfection to which the hearts of the most sanguine votaries of the equalisation plan could wish to carry it, would still be but the semblance of equality in effect. If equality in point of wealth be desirable, it can only be so in the quality of an efficient cause of equality in point of happiness: at least in as far as the quantum of happiness depends on that of wealth. But of equality in point of wealth, nothing like equality in point of happiness can be the result: not even in so far as happiness depends on wealth. Equality in point of wealth, is equality in point of means of happiness: but what does equality of means, in favour of happiness, where equality in point of wants is wanting? The allotments in point of wealth, to be productive of equality in point of happiness, must be not equal, but proportional; not equal to one another, but all of them proportioned to men’s respective wants. It is only from proportionality, not from equality in point of wealth, that equality in point of happiness can arise. Where is the equality between me and my robust and healthy neighbour, if I am dying for want of that relief in the way of medicine, sea-bathing, or change of air, which a portion of his allotment out of the estate that was all of it mine, but is now shared with him and others, would have enabled me to procure?
Inequality is the natural condition of mankind. Subjection is the natural state of man. It is the state into which he is born: it is the state in which he always has been born, and always will be, so long as man is man: it is the state in which he must continue for some of the first years of his life, on pain of perishing. Absolute equality is absolutely impossible. Absolute liberty is directly repugnant to the existence of every kind of government.
All human creatures are born and remain, says the declaration of rights, equal in rights. The child of two years old has as much right to govern the father, then, as the father has to govern the child.
Without the subjection of either the wife to her husband, or the husband to the wife, no domestic society as between man and wife could subsist. Without the subjection of the children to the parent, no domestic society, as between parent and child, could subsist: all children under a certain age must soon perish, and the species become extinct. But the persons thus placed under subjection by non-age, are at least half of the species, and those placed in a similar state by marriage not less than a third of the remaining half. Subjection, then, is the natural and unavoidable state of at least two-thirds of the species; and if it were possible that any thing like independence could subsist among any part of it, it could only be among the remaining third.
As the doctrine of universal independence is repugnant to possibility and the nature of things, so is the doctrine of universal equality absolutely repugnant to the existence of general independence, in as far as independence is possible. Those who are exempt from domestic subjection, can in no intelligible sense be said to be equal in point of rights to those who are under it. If universal equality, then, were the object that ought to be in view, universal subjection, as strict as domestic subjection, would be the only means of obtaining it. Universal equality by independence you cannot possibly have: equality as universal as you please, by subjection as universal as you please, you may have, if you desire to have it, with one exception only, that of the monarch.
The great point is to get any government at all: it is the most useful point, and the most difficult. When once you have got your government, and got it tolerably settled, then is the time to temper it.
But why combat shadows, it may be said, and expatiate upon a scheme of equalisation which you are representing as impracticable? It is only for equality, so far, and so far only as it is practicable, and practicable to advantage, that we contend: for the lopping off the superfluities of overgrown and excessive opulence, for alleviating the sufferings of excessive misery: for planting and maintaining the virtuous race of industrious proprietors; for planting and maintaining plenty without luxury, and independence without insolence. To push any system to an absurd excess, and then give the abuse of the system as the system itself—what can be more uncandid or more inconclusive? Your objections would be just enough if applied to the abuse of the system proposed, but have no force against a moderate and prudent application of it.
My answer is, that it admits not of any moderate or prudent application: that the principle admits not of your stopping anywhere in the application of it: that on pain of abandoning and passing condemnation on the principle, when once the process of forced equalisation is begun, it must go on and be pursued all lengths, even to the lengths that have been described: that the principles publicly avowed by the professed partisans of equality, go all these lengths in the very words, as well as according to the spirit of their most public and most boasted productions: that the doctrine of equal rights is laid down without reserve: that no line is drawn, or attempted to be drawn; that the words employed exclude the drawing of any such line; and that if any line had been drawn, or were to be attempted to be drawn, the attempt would not so much as palliate, much less remedy the evil: and that to the imputation of error it would only add the reproach of inconsistency and dereliction of principle.
To stop at any one point in the career of forced equalisation, would neither afford security to such of the rich as it left unplundered, nor satisfaction to the poor whom it left unenriched. An object being avowed, which can never be attained so long as I have a penny more than the beggar that plies before my door, what assurance can I give myself any day (says the rich man, who hath as yet been spared), that it may not be my turn the next? Will the vagabonds that have as yet got no share, be satisfied with the plunder that has fallen to the lot of their brother vagabonds that are consuming theirs? Where is the justice, where the equality of this pretended equalisation plan? cries the expectant beggar, whom the division has not yet reached. Why have my wants been so long neglected, while those of my neighbour have been so long satisfied? Am I less a citizen than he? is my happiness less a part of the happiness of the community than his? So far from gaining by the change, I am as yet a loser by it. Till now, only the few, now the many, are above me. Till now, my superiors were out of my sight; now they are incessantly at my elbow. Till now, my superiors were all strangers to me; now my equals, my familiars, swell the list. Not a step can I stir without falling in with an acquaintance, revelling in enjoyments, of which, it seems, I am destined never to partake.
As these discontents will arise at every step made in the progress, so will they at every other that can be made, and always with equal reason—or rather with superior and accumulating reason. Every preceding step will have afforded a precedent, and the commencement of a justification of the succeeding ones: what at first was theory, will have been settled into practice: what at first was innovation, will have become establishment: till at length the original race of proprietors having been reduced to nothing, and all hope or possibility of repairing an injustice done to them being annihilated, the opposition made by justice will have ceased: justice will have become indifferent, and as it were neutral: the injustice of going on will not be exceeded by the injustice of stopping. Name who can the point at which the line of stoppage can be drawn. No such line hath as yet been drawn by any man; no such line attempted to be drawn by any man. Let arbitrary power have decreed (and what but power the most arbitrary could decree) that a line of this sort shall be drawn; that bounds of this sort shall be set to the process of equalisation,—what but caprice can draw it? what but corruption will be said or will be thought to have set them?
The argument that turns on the difficulty of stopping is a common one: it is become commonplace: it is open to abuse, and few have been more abused: it has been employed against salutary measures: and the more frequently and the more eagerly employed, as it is one of those general arguments which may be produced against measures which admit of no particular objections. It is more to the taste of the ignorant fool, and of the cowardly, than of the knowing or the brave: it is more apt to be employed in the defence of old abuses, than in the combating of novelties really pernicious.
It is one of those objections that is much better calculated to confirm partisans already gained, than to gain new ones; still more than to make proselytes from partisans engaged on the other side. To say to me (after admitting that as yet I am in a right track,) to say to me, you will find it impossible or difficult to stop, is to say to me, either prudence or fortune will be wanting to you: it is to say to me, that will happen which you are persuaded will not happen. It is to gall, in a multitude of tender points at once, the irritable frame of human vanity. It is to turn a disbelieving ear to my pretensions of present judgment and present forecast; it is to prophesy to me and my friends, a future deficiency in point of prudence and good fortune.
In the present instance, the argument wears a very different complexion, and strikes with a very different degree of force. It is—not that you will find it difficult to stop at a proper place, but that you ought not to stop anywhere: it is—not that you may be drawn on into the road to ruin, but that you can not, in the nature of things, so long as you pursue your intent, stop anywhere short of ruin: it is—not that you may be led on by heat of temper or untoward accidents beyond the bounds which the principle you set out upon has prescribed to you, but that you can not stop anywhere short of ruin without the dereliction of your principle; without a confession by action, more humiliating than any confession by words, that your whole system was from the first, on the whole, and in every part of it, a pernicious one, and the most pernicious of all political systems that ever were or can be devised. Not only the good expected from such a change would be too expensive, but were it ever so desirable, it would be altogether unattainable—at least unmaintainable for two instants together. Past equality does not answer the intention—present equality is the object; and whatever reason there may be for aiming at it at any one period of time, the same reason will there be for maintaining it at every other period of time. A fresh division must therefore be made upon every division that happened in the number of the sharers: a fresh division upon every birth, and upon every death a fresh division; or the inutility and folly of the original division must stand confessed.
Of this perpetual necessity of fresh divisions, what would be the result? Nobody would have any thing he could call his own: all property would in effect be destroyed—all present property, and all prospect of security in respect of property in future: all idea of subsistence except from hand to mouth: all incentive to labour beyond the satisfaction of the necessities of the day; for why should I bestow my labour to-day in the improvement of that property, which may be torn from me to-morrow?
A fresh division would again require to take place every time a person became helpless to such a degree as to be unable to make his own little property (his £15, his £10 a-year, or whatever the original portion of £20 was redued to) suffice for his own maintenance—a fresh division, or some other arrangement capable of answering the same purpose. Every birth adds, during the age of helplessness, to the sum of burthens; every death, by taking from the sum of burthens, adds relatively to the sum of benefits. But the addition made to the sum of burthens by infirmity happening to a grown person, is much greater than that made by the birth of an infant: the adult requires many times as much as the infant for his sustenance. The portion of the adult, now become helpless, was too small to afford him subsistence without the benefit of his labour to improve it. Being now incapable of all labour, he must either perish, or, to keep him alive, the portion of other people must be laid under contribution to make up the difference. Here, then, comes the necessity of a system to answer the purpose of the present poor-laws, with this difference—that for maintaining the growing increase of the poor, there remain none but what are poor already. The dispensations of equality have brought back the age of virtue—be it so: but virtue, however it may diminish disease, will not destroy it; virtue will not extirpate the smallpox nor the contagious fever; virtue will not prevent legs nor arms from breaking; virtue will not give robustness nor agility to the extremity of old age.
Equality amongst the members of a community—equality, whatever be the standard portion—includes two points: that no member shall have more than that portion; and that no one shall have less. The first of these points is attainable by the equalisation system to great perfection: the latter not. To the latter, this pure and exalted system is not more competent than the present abusive and corrupt one: it is even much less so. To industry it affords no new encouragement; on the contrary, it takes from it whatever encouragement it has at present. To what purpose should I earn more than the poorest of my fellow-citizens, when so much as I earn more than them, so much will be taken from me. Neither to idleness or to dissipation does it administer any new discouragement; on the contrary, it gives to both of these dispositions encouragement, and that the greatest they can receive. Putting idleness upon a footing of equality in point of future advantage with industry, and dissipation with frugality, it gives to each the portion of present pleasure with which it is attended, clear. Why, so long as I have a penny left, should I refuse the most expensive desire its gratification—when, whatever I dissipate of my own present stock, must be made up to me from that of other people? To what purpose, while I have a penny left, should I plague myself with working—when, so long as I have any thing to pay, others will work for me with pay, and when I have no longer pay to give them, they must work for me without it?
Here, then, is a perpetual race between dissipation and idleness on the one hand, and that plan of division, whatever it be, by which the law of equalisation is carried into execution, on the other: dissipation and idleness continually widening the gap; division of property using its best endeavours to fill it up. But the pace of dissipation is the pace of the racer; the pace of legal division that of the tortoise.
All this while, the members of the community are divided into two classes: the industrious and frugal, slaves toiling for others: the idle and prodigal, lords and masters, enjoying for themselves. Such would be the fruit of the equalisation system, while the execution of it was going on, until a certain portion of the national wealth having been destroyed in a variety of ways, and a certain portion of the national population destroyed by a mixture of famine and excess, the miserable would awaken from their delirium, curse the system and its inventors, and join their endeavours to bring back the former state of things.
[* ]The following work is edited from the Traités de Legislation, as published by Dumont, and the original MSS. of Bentham.
[† ]It is necessary to except those laws by which restrictive laws are repealed: those laws which permit what other laws have forbidden.
[* ]To create an offence, is to convert an act into an offence—to give, by a prohibition, the quality of an offence to an act.
[† ]When the law confers a right, it is by giving the quality of offences to the different actions by which the enjoyment of this right may be interrupted or opposed.
[‡ ]Equality may be considered with regard to all the advantages derived from the laws: Political Equality, or Equality in point of Political Rights—Civil Equality, or Equality in point of Civil Rights. But when the word is employed alone, it is usually understood as referring to the distribution of property.
[* ]It is to this head that the evil of gambling may be referred. Though the chances, as they respect money, may be equal, the chances, as they respect happiness, are always unfavourable. I possess £1000: the stake is £500: if I lose, my fortune is diminished one half; if I gain, it is is only increased one third. Suppose the stake to be £1000: if I gain, my happiness is not doubled with my fortune; if I lose, my happiness is destroyed—I am reduced to poverty.
[* ]It does not follow that the sum of evil is greater than that of good. Not only is evil more rare, but it is accidental: it does not arise, like good, from constant and necessary causes. Up to a certain point, also, it is in our power to repulse evil from, and attract good to, ourselves. There is also in human nature a feeling of confidence in happiness, which prevails over the fear of its loss: this is evidenced by the success of lotteries.
[* ]A general right of property in any thing, is possessed, when it may be used every way, with the exception of certain uses which are forbidden by special reasons. These reasons may be referred to three heads:—
[* ]If this deduction were established upon a fixed footing, each proprietor, knowing beforehand what he would have to give, the pain of disappointment would disappear, and make way for another pain, a little different in its nature, and less in its degree.
[† ]In 1797, Mr. Bentham addressed a letter on pauper management to Mr. Arthur Young, editor of the Annals of Agriculture, which was inserted in that work, and afterwards translated and published in Paris, an. X. under the title of “Esquisse d’un ouvrage en faveur des Pauvres.”
[* ]This was once not an imaginary case: it was the case of Ireland.
[† ]I do not mean that there is a real opposition between the useful and the agreeable: every thing which gives pleasure is useful; but in ordinary language, that is exclusively called useful which possesses a distant utility; that agreeable, which has an immediate utility, or is limited to present pleasure. Very many things, whose utility is contested, have therefore a more certain utility than those to which this denomination is appropriated.
[* ]It appears, that of all the establishments of Lycurgus, this division of lands was that which experienced the least resistance. This singular phenomenon can only be explained by supposing, that during a long anarchy, property had almost lost its value. Even the rich might gain by this operation, because ten acres secure are worth more than a thousand insecure.
[* ]See this word Title, in the Essay entitled “A general view of a body of law.” This subject is only glanced at here.
[* ]Thus much for the theory: as to execution, it would require many details, otherwise this conversion would resemble the division of the new world which the Pope made between the Spaniards and Portuguese. The waters quit a bay: there are many proprietors upon its borders. Shall the distribution be regulated by the quantity of land belonging to each proprietor, or by the extent which he occupies along its sides? Lines of demarcation are necessary; but it is not necessary to wait to trace these lines till the event happens, and the value of the derelict lands is known; for all will then entertain hopes which can be realized only by some individuals. Before this period, expectation not being yet formed, easily follows the finger of the legislator.
[* ]See the chapter Of Collative and Ablative Events with regard to Property. The explanation of the word Title will be found there. I have here avoided reference to questions of method and nomenclature.
[* ]The greater number of states, without perhaps thinking of it, have obviated this danger by a general law which interdicts the acquisition of landed property by strangers. But they have gone too far. The reason of this prohibition does not extend beyond the particular case which I have mentioned. The foreigner who wishes to buy an immoveable in my country, gives the least equivocal proof of his affection for it, and the most certain pledge of his good conduct. The state can only gain in this case, even under the simple head of finance.
[* ]This may be applied to the situation of a King re-established on the throne of his ancestors, as Henry IV. or Charles II., at the expense of his faithful servants—an unfortunate situation, in which discontent is still increased, unless the kingdom itself, reconquered by their efforts, be distributed among them in detail.
[* ]It is to this head that the English law may be referred, which declares every marriage void, contracted by persons of the royal family without the consent of the king.
[* ]There may be some circumstances not included in ordinary rules: the citizens of the smaller Swiss Cantons, for example, possess in common the greater portion of their lands, that is to say, the High Alps. It is possible that this arrangement may alone be suitable for pastures which are only accessible for part of the year. It is possible that this manner of holding their lands forms the base of a purely democratic constitution, suited to a people shut up in the bosom of their mountains.
[* ]This method might give the slaves a temptation to employ murder to accelerate their emancipation. This is a very weighty objection against this lottery. It must, however, be observed, that even its uncertainty would weaken its danger. Few would be led to commit a crime of which they were not sure to reap the profit. But this temptation would vanish, if emancipation were not allowed to take place when the master had been poisoned or assassinated, either by one of his slaves, or by a person unknown. This means of liberation would thus become a source of security to the master.
[* ]The table of alliances to be prohibited to the woman would be necessary, in the text of the law, for greater clearness. It is omitted here as a useless repetition.
[* ]The following Essay is edited from the MSS. of Bentham.