Front Page Titles (by Subject) PART I.—: OBJECTS OF THE CIVIL LAW. * - The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law)
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PART I.—: OBJECTS OF THE CIVIL LAW. * - 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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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.
[* ]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.