Front Page Titles (by Subject) PART III.: OF THE RIGHTS AND OBLIGATIONS ATTACHED TO DIFFERENT PRIVATE CONDITIONS. - The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law)
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PART III.: OF THE RIGHTS AND OBLIGATIONS ATTACHED TO DIFFERENT PRIVATE CONDITIONS. - 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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OF THE RIGHTS AND OBLIGATIONS ATTACHED TO DIFFERENT PRIVATE CONDITIONS.
We now proceed to consider in greater detail the rights and obligations which the law attaches to the different conditions which compose the domestic or private condition. These conditions may be divided into four—those of
If we were to follow the historical or the natural order of these relations, the last in the list would become the first: for the sake of avoiding repetitions, beginning with the most simple object has been preferred. The rights and obligations of a father and a husband are composed of the rights and obligations of a master and a guardian; these two first conditions are the elements of all the others.
OF MASTER AND SERVANT.
When the question of slavery is not considered, there is little to say respecting the condition of master and its correlative conditions, constituted by the different kinds of servants. All these conditions are the effects of contracts; these contracts the parties interested may arrange to suit themselves.
The condition of master, to which the condition of apprentice corresponds, is a mixed condition: the master of an apprentice is at the same time master and tutor; tutor for the art which he teaches, master as to the profit which he derives from him.
The work that the apprentice does, after the period at which the produce of his labour is worth more than what it costs to develope his talent, is the salary or reward of the master for his former pains and expenses.
This salary will naturally be greater or less according to the difficulty of the art. Some arts may be learnt in seven days; others may require seven years. The competition among the dealers regulates the price of these mutual services, as well as of all other objects of commerce: and here, as in other cases, industry finds its just reward.
The greater number of governments have not adopted this free system. They have sought to establish what they call order among the professions; that is, to substitute an artificial for a natural arrangement, that they might have the pleasure of regulating that, which would regulate itself. As they have meddled with what they did not understand, they have been most frequently led by an idea of uniformity in objects of very different natures. For example, the ministers of Elizabeth fixed the same term of apprenticeship, the term of seven years, for the most simple as well as for the most difficult arts.
The regulating mania disguised itself under a common pretext. It would perfect the arts; it would prevent there being any bad workmen; it would secure the credit and the honour of the national manufactures. For the accomplishment of this object, a natural and simple method presented itself: permission to every one to use his own judgment, to reject the bad, to choose the good, to determine his preferences by merit, and thus to excite emulation in all the artists by the liberty of competition. But no:—it determined that the public was not in a condition to judge of the quality of any work; but so soon as a workman had been employed upon a certain kind of labour a certain number of years, his work ought to be regarded as good. That the proper question to be asked respecting an artisan is not, does he work well? but how long has been his apprenticeship? for if it be necessary still to judge of work by its merit, so much the better would it be to allow every one liberty to work at his own peril and risk.
One might then be a master without having served an apprenticeship; another might remain all his life only an apprentice.
When the habit of serving forms a condition, and the obligation of continuing in this condition with respect to a certain individual, or to others who derive their titles from him, embraces the whole life of the servant, this condition is called slavery.
Slavery is susceptible of many modifications and alleviations, according to the greater or less certainty of the services which it is permitted to exact, and according to the means of coercion which it is permitted to employ. There was a great difference between the condition of a slave at Athens and Lacedemon; there is still more between that of a Russian serf and a negro in the southern states of America. But whatever may be the limits as to the modes of exercising authority, if the obligation of service be unlimited in point of duration, I always call it slavery. In drawing the line of separation between slavery and freedom, it is necessary to stop at some point, and this appears the most prominent and the most easily proved.
This characteristic mark drawn from its perpetuity, is so much the more essential, in as much as, wherever it is found, it weakens, it enervates, it renders more or less precarious the most prudent precautions for the initigation of authority. Unlimited power, in this sense, can with difficulty be limited in any other. If we consider, on the one hand, the facility which the master possesses of aggravating his yoke by degrees; of rigorously exacting the services which are due to him; of extending his pretensions under divers pretexts; of seeking out opportunities for tormenting an insolent subject, who has dared to refuse that which he did not owe: if we consider, on the other hand, how difficult it is for slaves to claim and obtain legal protection; how much more distressing their domestic condition becomes after a public struggle against their master; how much rather they are led to seek his favour by unlimited submission, than to irritate him by refusal;—we shall easily perceive that the project of mitigating slavery by law, is more easily formed than executed; that the fixation of services is a very feeble instrument in the mitigation of the lot of slavery; that under the empire of the best laws in this respect, their most flagrant infractions only will be punished, whilst the ordinary course of domestic rigour will mock all tribunals. I do not, therefore, say that slaves ought to be abandoned to the absolute power of the master; that they ought not to receive any protection from the laws, because this protection is insufficient. But it was necessary clearly to point out this circumstance, to show the evil inherent in the nature of slavery, namely, the impossibility of subjecting the authority of a master over his slaves to legal restraint, and of preventing the abuse of his power, if he be disposed to abuse it.
That slavery is agreeable to the masters, is not doubtful—since they could, in an instant, cause it to cease if they wished so to do; that it is disagreeable to the slaves, is a fact no less certain—since they are only retained in this condition by restraint. No one who is free is willing to become a slave; no one is a slave but he wishes to become free.
It is absurd to reason as to the happiness of men, otherwise than with a reference to their own desires and feelings. It is absurd to seek to prove by calculation, that a man ought to be happy when he finds himself miserable, and that a condition into which no one is willing to enter, and which every one desires to leave, is in itself a pleasant condition, and suited to human nature. I can easily believe that the difference between liberty and slavery is not so great as it appears to be to some ardent and prepossessed minds. Being accustomed to the evil, and much more, never having experienced the better condition, the interval which separates these two conditions, which at first sight appear so opposed, is greatly diminished. But all reasonings upon probabilities are superfluous, since we have proofs of the fact, that this condition is never embraced from choice, but, on the contrary, that it is always an object of aversion.
Slavery has been compared to the condition of a scholar prolonged during life; and how numerous are the persons, who have said that the time passed at school was the happiest period of their life?
The parallel is correct only in one respect. The circumstance common to the two conditions is subjection; but it is any thing rather than this circumstance which produces the happiness of the scholar. That which renders him happy, is the freshness of spirit, which gives to all his impressions the charm of novelty; it is the comparison of the noisy and active pleasures in which he engages with companions of his own age, with the solitude and the quiet of his father’s house. And after all, how many are the scholars who have sighed for the moment when this condition should cease? Who among them would resolve to remain a scholar always?
If it could be arranged in such a manner that slavery should be so established that there should be only one slave to one master, there might be ground for hesitation in pronouncing before-hand which would have the advantage, and which the disadvantage; and it might be possible, that, all things considered, the sum of good in this arrangement would be nearly equal to that of evil.
But things are not thus arranged. As soon as slavery is established, it becomes the lot of the greatest number. A master counts his slaves as his flocks, by hundreds, by thousands, by tens of thousands. The advantage is only on the side of a single person; the disadvantages are on the side of the multitude. If the evil of slavery were not great, its extent alone would suffice to make it considerable. Generally speaking, and every other consideration apart, there can, therefore, be no ground for hesitation between the loss which would result to the masters from enfranchisement, and the gain which would result from it to the slaves.
Another strong argument against slavery may be drawn from its influence upon the wealth and power of nations. A free man produces more than a slave. Set at liberty all the slaves which a master possesses, this master would, without doubt, lose a part of his property; but the slaves, taken together, would produce not only what he lost, but still more. But happiness cannot but be augmented with abundance, whilst public power increases in the same proportion.
Two circumstances concur in diminishing the produce of slaves: the absence of the stimulus of reward, and the insecurity of their condition.
It is easily perceived, that the fear of punishment is little likely to draw from a labourer all the industry of which he is capable, all the work that he can furnish. Fear leads him to hide his powers, rather than to show them; to remain below, rather than to surpass himself.
By a work of supererogation, he would prepare punishment for himself: he would only raise the measure of his ordinary duties by displaying superior capacity. His ambition is the reverse of that of a free man; and he seeks to descend in the scale of industry, rather than to ascend. Not only does he produce less; he consumes more, not in enjoyment, but lavishly, wastefully, and by bad economy. Of what importance to him are interests which are not his own? Every thing which saves his labour is a gain for him; every thing which he allows to be lost, is only the loss of his master. Why should he invent new methods of doing more or doing better? In making improvements, he must think; and thinking is a labour to which no one gives himself without a motive. Degraded to a beast of burden, a slave never raises himself above a blind routine, and one generation succeeds another without any progress in improvement.
It is true that a master, who understands his own interests, will not dispute with his slaves the little profits which their industry may furnish to them: he will not be ignorant that their prosperity is his own, and that to animate them to labour, he must offer them the allurement of an immediate reward. But this precarious favour, dependent on the character of the individual, is not sufficient to inspire in them that confidence which directs the views to the future, which shows in the savings of to-day the foundation of future wealth, and which leads to extended projects respecting the fortune of their children. They well understand, that the richer they are the more they are exposed to extortion, if not from their master, at least from his agents, and all their subordinates in authority, more greedy and more formidable than their master. There is, therefore, no to-morrow for the greater number of slaves. The enjoyments which are realized at the instant are those alone which can tempt them. They, therefore, become gluttons, idle, dissolute, without reckoning the other vices which result from their situation. If they have a longer foresight, they hide their little treasures. All the faults destructive of industry, and all the habits most mischievous to society, are nourished in them by the sad feeling of insecurity, without compensation and without remedy. This result is not the deduction of a vain theory, it is a result drawn from facts, in all times and all places.
But it is said, the free labourer in Europe is very nearly upon the same footing, with regard to labour, as the slave. He who is paid by the piece has reward for his motive, and each effort has its payment. He who is paid by the day has no other motive than punishment; whether he does little or much, he receives only his day’s wages, therefore he has no reward. If he does less than usual, he may be discharged, as the slave in the same case may be beaten; the one and the other are excited only by fear, and have no interest in the produce of their labour.
Three things may be replied:—1. It is not true that the day-labourer has not the motive of reward. The most skilful and the most active are better paid than others; those who distinguish themselves are more constantly employed, and are always preferred for the most lucrative employments: here, then, is a real reward which accompanies all their efforts.
2. If he were actuated by no other than penal motives, there would be still more hold upon the day-labourer than upon the slave. The free labourer has his point of honour as well as others. In a free country, shame attaches to the character of an idle or unskilful workman; and in this respect the eyes of his companions are so many helpers to those of the master: this punishment of the popular sanction is inflicted upon a multitude of occasions, by judges who have no interest in sparing it. Hence they exercise reciprocal inspection, and are sustained in their efforts by emulation. This motive has much less force upon slaves: the treatment to which they are subject renders them but little sensible of so delicate a punishment as that of shame; and as the injustice of labouring for the advantage of another, without indemnification, has not escaped their observation, slaves have no shame in acknowledging one to another a dislike to labour, which is common to them all.
3. Whatever appears to the day-labourer as a gain, is a certain gain; every thing which he acquires is his own, and no one else has a right to touch it: but we have seen that there is no real security for the slave. Exceptions in this respect may be cited. Some Russian nobleman, for example, may possess industrious slaves who possess many thousands of roubles, and who enjoy them as their master enjoys his property; but these are particular cases, which do not alter the ordinary rule. When a judgment is to be formed respecting a general arrangement, it is not necessary to stop at these singular and transient cases.
In this short exposition of the inconveniences of slavery, no attempt has been made to excite emotion, nothing has been addressed to the imagination, no odious character has been thrown upon masters in general: by generalizing particular abuses of power, nothing has been said of the terrible methods of rigour and constraint employed in their domestic government, without law, without process, without appeal, without publicity, and almost without restraint: since responsibility, as we have seen, can only exist in extraordinary cases. Every thing which belongs to feeling may be easily accused of exaggeration, but the simple evidence of reason cannot be gainsayed, and it is so strong there can be no need to employ any suspicious colours. The proprietors of slaves, whom personal interest has not made insensible to feeling and humanity, must acknowledge the advantages of liberty, and desire the abolition of slavery, if this abolition could take place without overturning their own condition and their fortunes, and without attacking their personal security. The injustice and the calamity which have accompanied precipitate attempts, form the greatest objection against projects of emancipation.
This operation need not be suddenly carried into effect by a violent revolution, which, by displeasing every body, destroying all property, and placing all persons in situations for which they were not fitted, might produce evils a thousand times greater than all the benefits that can be expected from it.
Instead of rendering emancipation burthensome to the master, it ought, as much as possible, to be rendered advantageous to him: and the first means which naturally offers itself for this purpose, is to fix a price at which every slave shall have the right to purchase his freedom. Unhappily this means is exposed to one strong objection: when the interest of the master is opposed to that of the slaves, he would prevent their obtaining the sum fixed for their ransom. To leave them in ignorance, to keep them in poverty, to clip their wings in proportion as they grew—such would be his policy. But there is this danger only in fixing the price: the liberty of purchasing his freedom by mutual consent has no such inconvenience. The interest of the slave will lead him to work well for himself, that he may have a large price to offer. The interest of the master will lead him to allow his slave rapidly to enrich himself, that he may derive the greater ransom from him.
A second method consists in limiting the right of making a will, in such manner, that in those cases where there is no successor in the direct line, emancipation should be of right. The hope of inheritance is always very weak in distant successions, and this hope would no longer exist when the law became known. There would be no injustice, when no expectation was disappointed.
It would be possible even to go a step further: at each change of ownership, even in the nearest successions, a small sacrifice might be made of property in favour of liberty: for example, a tenth part of the slaves might be set at liberty. An inheritance which has just devolved does not present to the heir a determinate value. The diminution of a tenth would be scarcely sensible. At this period this would be less a loss than a privation of gain. Upon nephews, who have, from another side, received an inheritance from their fathers, the tax in favour of liberty might be still heavier.
This offering to liberty ought to be determined by lot. Choice, under the pretext of honouring the most worthy, would be a source of cabals: it would cause more discontent and jealousy than happiness. The lot is impartial; it gives all an equal chance of happiness; it spreads the charm of hope among those whom it does not favour; and the dread of being deprived of this chance, on account of any crime committed, would be another bond to the fidelity of the slaves.*
Emancipation ought to take place by families, rather than by individuals. A father a slave, and a son free; a son a slave, and a father free. The contrast is sad and shocking!—a source of domestic grief.
There are other means of accelerating this desirable object; but they can only be discovered by studying the particular circumstances of each country.
However, the bonds of slavery, which the legislator cannot break by a single blow, time destroys by little and little; and the march of liberty, though slow, is not the less certain. All the progress of the human mind, of civilization, of morality, of public wealth, of commerce, hasten forward, by degrees, the restoration of individual liberty. England and France were once what Russia, the Polish provinces, and part of Germany, are at present.
Landowners need not be alarmed at this change. Those who possess the soil have a natural power over those who live by their labour. The fear that the emancipated bondsmen, once free, would remove, would abandon their native soil, and leave the earth uncultivated, is absolutely chimerical, especially if emancipation were effected in a gradual manner. Because the slave escapes when he can, it is not to be concluded that the free man will remove. The opposite conclusion would be more correct. The motive for flight no longer exists, and all the motives for remaining are strengthened.
In Poland, some landowners, enlightened as to their own interests, or animated by a love of glory, have effected a total and simultaneous emancipation in their vast seignories. Did this generosity cause their ruin? Altogether the contrary. The farmer, interested in his labour, has been in a condition to pay more than the slave; and their lands, cultivated by free hands, have received every year a new and increased value.
OF GUARDIAN AND WARD.
The weakness of infancy requires continual protection. Every thing must be done for the infant, which can do nothing for itself. The perfect development of its physical powers requires many years: the development of its intellectual faculties is more slow. At a certain age, it has already strength and passions, but it has not yet sufficient experience to regulate them. Too sensible of the present, and too little sensible of the future, it requires an authority more immediate than that of the laws; it requires to be governed by rewards and punishments, which do not act at long intervals, but continually, and which may be adapted to all the details of its conduct, during the progress of its education.
The choice of a situation in life, or of a profession for a child, also requires that he should be subject to a particular authority. This choice, founded upon personal circumstances, upon expectations, upon talents, or the inclinations of the young pupils; upon their facility of applying to one thing in preference to another—in a word, upon the probability of success; this choice is too complicated to be made by the public magistrate; each case requires particular consideration, and its decision such an acquaintance with particular details as a public magistrate cannot possess.
This power of protection and government, with respect to individuals considered incapable of protecting and governing themselves, constitutes Guardianship: a kind of domestic magistracy, founded upon the manifest wants of those who are subject to it, and which ought to comprehend all the powers necessary for attaining its end, without going beyond it.
The powers necessary for the education of a ward, are those of choosing his station, and fixing his habitation, together with the means of reprimanding and correcting him, without which authority would be inefficacious. These means may be the more easily reduced upon the side of severity, in proportion as their application is more certain, more immediate, and more easily varied, and because domestic government possesses an inexhaustible fund of rewards; since during the period in which every thing is received, there is no concession which may not be made to take the shape of reward.
With regard to the subsistence of the ward, it can only be derived from three sources; either his own property, or from gifts, or from his labour.
If the ward possess property, it is administered in his name and for his advantage by his guardian; and all that he does in this respect, according to prescribed forms, is ratified by the law.
If the ward have no property, he is supported either at the expense of the guardian, as is most commonly the case where the guardianship is exercised by the father or mother of the child; or at the expense of some charitable establishment; or, it may be, by his own labour, as in the case where his services are engaged in an apprenticeship, in such manner that the period of his non-value is compensated for by the subsequent period.
Guardianship being an office purely burthensome, this service is made to fall upon those who have the greatest inclination and facility for discharging it. The father and mother are eminently in this situation. Natural affection generally more strongly disposes them to it than the law; still, however, the law which imposes it on them is not useless. It is because children have been abandoned by the immediate authors of their being, that this abandonment has been constituted a crime.
If the dying father have appointed a guardian to his children, it is presumed that no person has known better than he, who had the means and inclination to supply his place in this respect. Hence his choice should be confirmed, unless there be strong reasons to the contrary.
If the father have not provided a guardian, this obligation should fall upon a relation, attached by interest to the preservation of the family property, and by affection or honour to the welfare and education of the children. In default of a relation, some friend of the orphans should be chosen, who will voluntarily discharge this office: or some public officer should be appointed for this purpose.
It is proper to pay attention to the circumstances which may render guardianship unnecessary:—Advanced age, a numerous family, infirmities, or reasons of prudence and delicacy, for example, complication of interests, &c.
The particular precautions against the abuse of this power belong to the penal laws against offences:—an abuse of authority against the person of the ward, is referable to the class of personal injuries; illicit gains derived from his fortune, to that of fraudulent acquisitions, &c. The only thing to be considered is the peculiar circumstance of the offence, the violation of confidence. But though this renders the offence more odious, it is not always a reason for augmenting its punishment; on the contrary, we shall see elsewhere that it is often a reason for diminishing it: the position of the delinquent being more particular, the detection of the offence is more easy, reparation is more certain, and the alarm is less. In the case of seduction, the character of guardian is an aggravation of the offence.
As regards general precautions, guardianship has often been subject to division, by giving the administration of the property to the next of kin who is entitled to succeed to it, who, in character of heir, will have the greatest interest in increasing its value; and the care of the person to some other relation, more interested in the preservation of his existence.
Some legislators have taken other precautions, such as forbidding guardians to purchase the property of their wards, or of permitting to these to re-enter upon their property sold within a certain number of years after attaining their majority. Of these two methods, the first does not appear subject to great inconveniences; the second can only affect the interests of the ward, by diminishing the price of his lands, in as much as the value is diminished to the purchaser himself, in proportion as his possession is rendered precarious, and he is afraid to undertake improvements which might prove disadvantageous to him, by furnishing an additional motive for re-entry. Both these methods appear useless, if the sale of the property be only permitted to be made publicly, and under the inspection of the magistrate.
The most simple method is to allow any person to act in legal matters as the friend of the infant against his guardians, either in cases of malversation as to his property, or of negligence or violence. The law would thus put these feeble beings, who are unable to protect themselves, under the protection of every generous individual.
Pupillage being a state of dependence, is an evil which ought to cease as soon as it is possible, without occasioning a greater evil. But at what age ought this emancipation to take place? This question can only be decided by general presumptions. The English law, which has fixed the epoch at the age of twenty-one years, seems much more reasonable than the Roman law, which has been followed in almost every country in Europe, and which fixed it at twenty-five years. At twenty-five years old, the faculties of the man are developed; he is sensible of all his powers; he yields to advice what he refuses to authority, and will be not longer content to be restrained by the bonds of childhood: hence the prolongation of domestic authority often produces a state of animosity and irritation, equally hurtful to both the parties interested. But there are some individuals who never reach maturity, or who reach it much later than others. Provision may be made for these cases by interdiction, which is only a prolongation of guardianship during a prolonged childhood.
OF PARENT AND CHILD.
We have already said, that in certain respects a parent is the master of his child, and in others the guardian.
In the character of a master, he will possess the right of imposing labour upon his children, and of employing their labour for his own advantage, until the age at which the law establishes their independence. This right which is given to parents, is an indemnity for the trouble and expense of the education of their children. It is desirable that parents should possess an interest, and take pleasure in the education of their children; whilst this advantage which they may find in rearing them, is not less a benefit for the one than the other.
In the character of guardian, a parent possesses all the rights and all the obligations of which mention has been made under that head.
Under the first relation, the advantage of the parent is considered; under the second, that of the child is considered. These two characters are easily reconciled in the hands of a parent, in consequence of the natural affection which leads him rather to make sacrifices for his children, than to make use of his rights for his own advantage.
It would seem at the first glance, that the legislator need not interfere between parents and children, and that he might rely upon the tenderness of the one, and the gratitude of the others. But this superficial view would be deceptive. It is absolutely necessary, on one side, to limit the parental power, and on the other, to support filial respect by the laws.
General Rule. It is not proper to give any power, from the exercise of which the child may lose more than the father would gain.
When, in Prussia, the right was given to the father, in imitation of the Romans, of preventing his son from marrying without limitation of age, this rule was not observed.
Political writers have fallen into opposite excesses with respect to the parental authority. Some have sought to render it despotic, as among the Romans; others have sought to annihilate it. Some philosophers have thought that children ought not to be subject to the caprice and ignorance of parents; that the state ought to educate them in common. The systems of Sparta, Crete, and the ancient Persians, are cited in support of this plan. It is forgotten that this public education was only provided for a small class of the citizens; because the mass of the people was composed of slaves.
In this artificial arrangement, beside the difficulty of apportioning the expense, and the evil of making those parents support the burthen who no longer stand in need of the service, and who would no longer be actuated by a feeling of tenderness for their children, who would have become almost strangers to them, there would also arise a greater inconvenience to the pupils: they would not be early prepared for the diversity of conditions which they would be called to occupy. The choice even of a profession or business depends upon so many circumstances, upon which parents alone can determine, that no one else can judge of what is suitable for them, nor of the expectations nor of the talents and inclinations of these young pupils. Besides, this plan, in which the reciprocal affection between parents and children is reckoned as nothing, would be productive of the worst effects; by destroying family feeling—by weakening the conjugal union—by depriving the fathers and mothers of those pleasures which they derive from beholding this new generation which springs up around them. They would not seek the future welfare of children, who would no longer be their property, with the same zeal. They would not feel towards them a regard which they could not hope to inspire. Industry, no longer excited by paternal affection, would not possess the same activity. Domestic enjoyments would take a course less advantageous to general prosperity.
As a last reason, it may be added, that the natural arrangement, leaving the choice, the manner, and the expense of education to the parents, may be compared to a series of experiments, having for their object the perfection of the general system. Every thing is advanced and developed by this emulation of individuals; by the difference of views and thoughts—in a word, by the variety of particular impulses. But if every thing were cast in the same mould, if instruction every where partook of the character of legal authority, errors would be perpetuated, and there would be no improvement.
This, perhaps, may be considered too long a dissertation respecting a chimera: but this Platonic notion has in our days led certain celebrated authors astray; and an error which has entangled Rousseau and Helvetius, may easily find other defenders.
Under whatever point of view the institution of marriage is considered, the utility of this noble contract is striking. It is the bond of society, the foundation of civilization.
Marriage, considered as a contract, has drawn women from the hardest and most humiliating servitude; it has distributed the mass of the community into distinct families; it has created a domestic magistracy; it has trained up citizens; it has extended the views of men to the future, through their affection for the rising generation; it has multiplied the social sympathies. In order to estimate all its benefits, it is only necessary to imagine, for a moment, what would be the condition of Man without this institution.
The questions relative to this contract may be reduced to seven:—1. Between what persons may it be permitted? 2. What shall be its duration? 3. Upon what conditions shall it be made? 4. At what age? 5. Who shall choose? 6. Between how many persons? 7. With what formalities?
Between what persons shall Marriage be permitted?
If we here follow the guidance of historical facts, we shall be greatly embarrassed, or rather, we shall be unable to deduce a single fixed rule from among the multitude of contradictory customs. Respectable examples are not wanting for authorising unions which we regard as most criminal, nor for prohibiting many which we consider altogether innocent. Every nation has pretended to follow, in this respect, what is called the law of nature, and has viewed with a kind of horror, as polluted and impure, every thing not conformed to its own matrimonial laws. Let us suppose ourselves ignorant of all these local institutions, and only consulting the principle of utility, let us examine between what persons it is proper to permit, and between whom to prohibit this union.
If we examine the interior of a family, composed of persons who differ among themselves in respect of age, sex, and relative duties, strong reasons will present themselves to our minds for prohibiting certain alliances between many individuals of this family.
I see one reason which directly pleads against allowing such marriages at all. A father, a grandfather, or an uncle holding the place of a father, might abuse his power in order to force a young girl to contract an alliance with him which might be hateful to her. The more necessary the authority of the parent is, the less temptation should be given to its abuse.
This inconvenience extends only to a small number of incestuous cases, and it is not the most weighty. It is in the corruption of manners, in the evils which would result from transitory connexions without marriage, that the true reasons for prohibiting certain alliances must be sought.
If there were not an insurmountable barrier against marriages between near relations, called to live together in the greatest intimacy, this close connexion, these continual opportunities, even friendship itself and its innocent caresses might kindle the most disastrous passions. Families, those retreats in which repose ought to be found in the bosom of order, and where the emotions of the soul, agitated in the scenes of the world, ought to sink to rest—families themselves would become the prey of all the inquietudes, the rivalries, and the fury of love. Suspicion would banish confidence; the gentlest feelings would be extinguished; and eternal enmities and revenges, of which the idea alone makes one tremble, would usurp their place. The opinion of the chastity of young women, so powerful an attraction to marriage, would not know upon what to repose, and the most dangerous snares in the education of youth would be found even in the asylum where they could be least avoided.
These inconveniences may be arranged under four heads:—
1. Evil of Rivalry.—Danger resulting from a real or suspected rivalry between a bridegroom and certain persons of the number of his relations or connexions.
2. Hindrance of Marriage.—Danger of depriving the daughters of the chance of forming a permanent and advantageous establishment by means of marriage, by diminishing the security of those who may desire to espouse them.
3. Relaxation of Domestic Discipline.—Danger of inverting the relations among those who ought to command, and those who ought to obey; or, at least, weakening the tutelary authority, which, for the interests of minors, ought to be exercised over them by the heads of the family, or those who hold their place.
4. Physical Injury.—Dangers which may result from premature indulgences, with respect to the development of the powers and the health of the individuals.
Shall a man be permitted to marry the sister of his deceased wife?
* There are reasons for and against. The condemnatory reason is the danger of rivalry during the life of the two sisters. The justifying reason is the advantage of the children. If the mother die, what a happiness for them to find a mother-in-law in their own aunt! What so likely to moderate the natural dislike to this connexion, as so near a relation? This last reason appears to me most weighty. But in order to obviate the danger of rivalry, power ought to be given to the wife to interdict her house to her sister. If the wife do not wish to have her own sister near her, what legitimate motive can the husband have for admitting this stranger near to him?
Shall a man be permitted to marry the widow of his brother?
There are reasons for and against, in this as in the preceding case. The condemnatory reason is still the danger of rivalry. The justifying reason is still the advantage of the children. These reasons appear to me to have little force on either side.
My brother has no more authority over my wife than a stranger, and can only see her with my permission. The danger of rivalry appears less great upon his part than that of any other. The opposing reason is reduced almost to nothing. On the other side, what the children have to fear from a father-in-law is trifling. If a mother-in-law be not the enemy of the children of another bed, it is a prodigy; but a father-in-law is commonly their friend, their second guardian. The difference of the condition of the two sexes, the legal subjection of the one, the legal empire of the other, expose them to opposite foibles, which produce contrary effects. The uncle is already the natural friend of his nephews and nieces. They have nothing to gain in this respect if he become the husband of their mother. If they find in a strange father-in-law an enemy, the protection of their uncle is their resource. Do they find in him a friend? They have acquired another protector which they would not have done if their uncle had become their father-in-law. The reasons for, and the reasons against, having little force on the one side or the other, it seems that the benefit of liberty ought to cause the balance to incline in favour of permitting these marriages.
Instead of the reasons that are given above for prohibiting marriages within a certain degree of relationship, ordinary morality ploughs its way, and decides upon all these points of legislation without the trouble of examination. “These marriages,” it says, “are repugnant to nature; therefore they ought to be proscribed.”
This argument alone does not furnish a justifying reason, in sound logic, for forbidding any one action whatsoever. In those cases in which the repugnance is real, the law is useless. To what good purpose prohibit what no one wishes to do? The natural repugnance is a sufficient prohibition. But in those cases where the repugnance does not exist, the reason ceases. Ordinary morality has nothing further to say respecting the prohibition of the act in question, since all its argument, founded upon natural distaste, is destroyed by the opposite supposition. If it be proper to conform to nature, that is to say, to the inclination of the desires, it is proper equally to conform to its decisions, whatever they may be. If it be proper to prohibit these marriages when they are disliked, it is proper to permit them when they are approved. Nature deserves not more regard when it hates, than when it loves and desires.
It is very seldom that the passion of love developes itself within the circle of individuals among whom it ought properly to be prohibited: a certain degree of surprise seems necessary for exciting this sentiment, a sudden effect of novelty; and it is this which the poets have cleverly expressed by the ingenious allegory of the bow and arrows, and the blindfolding of Cupid. Individuals, accustomed to be seen and to be known from the age which is incapable of conceiving or inspiring desire, will be seen with the same eyes to the end of life—this inclination will find no determinate period for its commencement. The affections have taken another course; they are, so to speak, a river which has dug its own bed, and which cannot change it.
Nature therefore agrees sufficiently well with the principle of utility: still it is not proper to trust to it alone. There are circumstances which may give birth to the inclination, and in which the alliance might become an object of desire, if it were not prohibited by the laws, and branded by public opinion.
Among the Grecian dynasty of the Egyptian sovereigns, the heir to the throne commonly espoused one of his sisters. This was apparently to avoid the danger of an alliance with the family of a subject, or with the family of a stranger. In such a rank, such marriages may be exempt from the inconveniences attendant upon them in private life. Royal opulence admits a separation and a seclusion, which could not be maintained in a medium station.
Policy has produced some examples almost similar in modern times. In our days, the kingdom of Portugal has approximated to the Egyptian custom; the reigning queen has had for her husband her nephew and subject. But in order to efface the stain of incest, Catholic princes and nobles can apply to an experienced chemist, who changes at pleasure the colour of certain actions. Protestants, to whom this laboratory is shut, have not the faculty of marrying their aunts. The Lutherans have, however, given the example of an extension of privileges.
The inconveniences of these alliances are not felt by those who contract them: the evil is altogether in the example. A permission granted to one, makes every body else feel the prohibition as tyrannical. Where the yoke is not the same for all, it appears more weighty to those who bear it.
It has been said, that these marriages into the same blood cause the race to degenerate, and that there is a necessity of crossing the race among men, as well as among animals. This objection might have some value, if under the empire of liberty, marriages among relations should become the most common. But it is enough to refute bad reasons; and even this would be too much, if a good cause were not served when the feeble and fallacious arguments by which it is sought to support it are destroyed. Some well-intentioned persons think that they ought not to take from good morals any of its supports, even when they are founded in falsehood. This error is related to that of the devotees, who have thought to serve the cause of religion by pious frauds: instead of strengthening, they have weakened it, by exposing it to the derision of its adversaries. When a depraved mind has triumphed over a false argument, it reckons that it has triumphed over morality itself.
For what period? Examination of Divorce.
If the law had not determined any thing respecting the duration of the marriage contract; if individuals were permitted to form this engagement, like every other, for a longer or shorter term,—what would be the most common arrangement under the auspices of liberty? Would it be very different from the established rules?
The object of the man in this contract might be only to satisfy a transient passion, and this passion satisfied, he would have had all the advantage of the union without any of its inconveniences. It cannot be the same with the woman: this engagement has for her durable and burthensome consequences. After the inconveniences of pregnancy, after the perils of child-birth, she is charged with the cares of maternity. Hence the union, which confers upon the man pleasures only, is for the woman the commencement of a long circle of pains, whose inevitable termination would be death, if she were not beforehand assured of the cares and protection of a husband, both for herself and the germ which she ought to nourish in her bosom. “I give myself to you,” she says to him, “but you shall be the guardian of my condition of weakness, and you shall provide for the preservation of the fruit of our love.” Such is the beginning of a society which would be prolonged during many years, if we suppose the birth of only a single child; but other births would form other ties; in proportion as years advance, the engagement is prolonged; the limits which might have been first assigned will have disappeared, and a new career will have opened itself to the pleasures and reciprocal duties of the married persons.
When the mother can no longer hope for more children, when the father has provided for the support of the youngest of the family, will the engagement be dissolved? After a cohabitation of many years, will it be supposed that the married persons will separate? Habit will have entwined around their hearts a thousand and a thousand ties which death only could destroy. The children will form a new centre of union; they will create a new source of pleasures and hopes; they will render the father and mother necessary the one to the other, by the cares and charms of a common affection, which no one could share with them. The ordinary course of the conjugal union would therefore be for the duration of life; and if it is natural to suppose, in the woman, sufficient prudence thus to stipulate with respect to her dearest interests, ought less to be expected from a father or a guardian, who possesses more maturity of experience?
The woman has also a particular interest in the indefinite duration of the connexion: time, pregnancy, suckling, cohabitation itself,—all conspire to diminish the effect of her charms. She must expect to see her beauty decline, at a time when the strength of the man still goes on increasing: she knows, that after having spent her youth with one husband, she would with difficulty find a second; whilst the man would not experience a similar difficulty in finding a second wife. Hence this new clause, which foresight would dictate to her: “I give myself to you; you shall not leave me without my consent.” The man demands the same promise; and hence, on both sides, a legitimate contract is founded upon the happiness of the two parties.
Marriage for life is therefore the most natural marriage; the best suited to the wants and circumstances of families; the most favourable for individuals, and for the generality of the species. If there were no laws to ordain it, that is to say, no other laws than those which sanction contracts, this arrangement would be always the most common, because it is that which is most suitable to the reciprocal interests of the persons marrying. Love on the part of the man, love and foresight on the part of the woman, all concur with enlightened prudence and affection on the part of parents, in impressing the character of perpetuity upon the contract of this alliance.
But what should we think if the woman should add this clause: “It shall not be lawful for me to be separated from you, should we come to hate each other as much as we now love one another.” Such a condition would appear to be an act of madness. It is something contradictory and absurd, which shocks at the first glance: every body would agree to regard such a vow as rash, and to think that humanity ought to cause it to be abolished.
But this cruel and absurd clause is not demanded by the woman, is not sought for by the man; it is imposed upon them both, as a condition from which they cannot escape. The law unexpectedly intervenes between the contracting parties: it surprises them in the transports of their youth, in the moments which open all the vistas of happiness. It says to them, “You unite yourselves in the hope of being happy, but I tell you that you enter into a prison, whose door will be closed against you. I shall be inexorable to the cries of your grief, and when you dash yourselves against your fetters, I shall not permit you to be delivered.”
To believe in the perfection of the beloved object, to believe in the eternity of the passion which is felt, and which is inspired—such are the illusions which may be pardoned to two children in the blindness of love. But aged lawyers, legislators whose heads are whitened by years, ought not to give place to this chimera. If they believe in this eternity of these passions, to what good purpose interdict a power which no one would ever wish to use? But no: they have foreseen inconstancy, they have foreseen hatred; they have foreseen that the most violent love may be succeeded by the most violent antipathy, and it is with all the coolness of indifference that they have pronounced the eternity of this vow, even when the sentiment which has dictated it shall be effaced by the contrary feeling. If there were a law which permitted an associate, a guardian, a superintendent, a companion, only on condition of never separating from them, every one would exclaim against such tyranny and such folly. A husband is a companion, a guardian, a superintendent, a partner, and still more, all at once; and yet it is only possible in the greatest number of civilized countries to have eternal husbands.
To live under the constant authority of a man that one detests, is already a species of slavery: to be constrained to receive his embraces, is a misery too great to be tolerated even in slavery itself. It has been said, the yoke is reciprocal:—the reciprocity only doubles the misery.
If marriage commonly present to men the only means of fully and peaceably satisfying the imperious desires of love, to deter them from it, is to deprive them of its sweets, is to produce an evil proportionably great. But what greater bugbear can there be than the indissolubility of this contract? Marriage, service, country, whatsoever condition there is a prohibition against quitting—there is a prohibition against entering.
In conclusion, when death is the only means of deliverance, what horrible temptations, what crimes, may not result from a position so terrible? The unknown instances are perhaps more numerous than those which are known; but that which will most frequently take place in this respect, is the negative offence. When the crime is easy, even to hearts which are not perverted—when nothing more is necessary for its accomplishment than inaction—if a detested wife and an adored mistress are exposed to the same danger—will the same efforts be made, as sincerely, as generously, for the first as for the second?
It is not proper to dissimulate: there are objections against the dissolubility of marriages. We shall endeavour to collect and to answer them.
First Objection.—“Permit divorce, neither of the parties will regard their lot as irrevocably fixed. The husband will cast his eyes around him to find a wife who would be more advantageous: the woman would make similar comparisons, and form projects for changing her husband. Hence perpetual and reciprocal insecurity would result with respect to this precious kind of property, with regard to which the whole plan of life is arranged.”
Answer 1.—This same inconvenience exists in part, under other names, when marriages are indissoluble. According to the supposition, reciprocal attachment is extinct. It is not a new wife that is sought, but a new mistress; it is not a second husband, but another lover. The duties of Hymen, and its prohibitions, too easily eluded, may perhaps serve to excite inconstancy rather than to prevent it. It is well known that prohibitions and constraint serve to stimulate the passions. It is a truth deduced from experience, that even obstacles, by occupying the imagination, by directing the mind to the same object, serve only to strengthen the desire of overcoming them. The reign of liberty produces less wandering fancies than that of conjugal captivity. Render marriages dissoluble, there will be more apparent, but there will be fewer real separations.
2. The inconveniences need not be considered alone: the advantages ought to be regarded also. Each one knowing what he was liable to lose, would cultivate those means of pleasing which originally produced the reciprocal affection. Each will more carefully study the other’s character, and the means of managing it. Each will feel the necessity of making some sacrifices of caprice and self-love. In a word, care, attention, complaisance, will be continued in the married state; and that which was done only to obtain love, will be done to preserve it.
3. Marriageable young persons would be less frequently sacrificed by the avarice and cupidity of their relations. It would be necessary properly to consult their inclinations, before forming bonds which would be broken by repugnancies. The real suitability upon which happiness reposes—the relations of age, education, and taste—would then enter into the calculations of prudence. It would be no longer possible to marry the property, as has been said, without marrying the person. Before an establishment were formed, there would be an examination whether it would be durable.
Second Objection.—“Each party regarding the connexion as transitory, would only espouse with indifference the interests, and especially the pecuniary interests of the other. Hence would arise profusion, negligence, and every species of bad management.”
Answer.—The same danger exists in commercial partnerships, and yet the danger is very rarely realized. A dissoluble marriage has a bond which these partnerships have not, the strongest, the most durable of all moral ties: affection for their common children, which cements the reciprocal affection of married persons. Among indissoluble marriages, is not this bad management more frequently found than in commercial partnerships? Why? It is an effect of the indifference and distaste which give to married persons, who are tired of each other, a continual desire to escape from themselves, and to seek for new distractions. The moral tie of their children is dissolved; their education, the care of their future welfare, is scarcely a secondary object; the charm of their common interest has vanished; each one, in the pursuit of his own pleasures, troubles himself but little with what will happen after him. Hence, a principle of disunion among married persons introduces negligence and disorder, by a thousand channels, into their domestic affairs; and the ruin of their fortune is often an immediate consequence of the estrangement of their hearts. Under the reign of liberty, this evil would not exist. Before there was a disunion of interests, disgust would have separated the persons.
The facility of divorce tends rather to prevent than to give birth to prodigality. It would produce a dread of giving so legitimate a reason for discontent to an associate whose esteem it is desirable to conciliate. Economy, appreciated at its full value by the interested prudence of both parties, would always have so much merit in their eyes as would cover many faults, and in its favour they would pardon many wrongs. It must also be perceived, that in case of a divorce, that one of the two parties who shall have the character of having behaved ill, and been extravagant, would have much less chance of forming other more advantageous connexions.
Third Objection.—“The dissolubility of marriage will give the stronger of the two parties an inclination to maltreat the feebler, for the purpose of constraining its consent to the divorce.”
Answer.—This objection is well founded; it deserves the greatest attention on the part of the legislator. A single precaution, however, is happily sufficient to diminish the danger: in case of maltreatment, liberty to the party maltreated and not to the other. In this case, the more a husband desired a divorce for the purpose of marrying again, the more he would avoid behaving ill towards his wife, for fear lest certain acts should be construed as acts of violence intended to constrain her consent. Gross and brutal methods being forbidden, there remain only gentle methods of engaging her to a separation.
Fourth Objection.—This is drawn from the interest of the children. “What will they do when the law has dissolved the union between the father and the mother?”
Answer.—That which they would have done if death had dissolved it. But in the case of divorce, their disadvantage is not so great: the children may continue to live with the parent whose cares are most necessary for them; for the law, consulting their interest, would not fail to entrust the boys to the father, and the daughters to the mother. The great danger to which children are exposed after the death of a parent, is that of passing under the government of a father or mother-in-law, who shall look upon them with the eyes of an enemy. Daughters especially are exposed to the most vexatious treatment under the habitual despotism of a stepmother. In the case of a divorce this danger does not exist. The boys will have their father for their governor, and the daughters will have their mother. Their education will suffer less than it would have suffered from their domestic strifes and quarrels. If, then, the interest of the children were a sufficient reason for prohibiting second marriages in case of a divorce, it is a still stronger reason for prohibiting them in case of death.
In conclusion, the dissolution of a marriage is an act sufficiently important to be submitted to some formalities, which would at least have the effect of preventing caprice, and allowing the two parties time for reflection. The intervention of a magistrate is necessary, not only for proving that there has been no violence on the part of the man in forcing the consent of the wife, but also for the purpose of interposing a greater or less delay between the demand for a divorce and the divorce itself.
This is one of those questions upon which opinions will be always divided. Every one will be led to approve or condemn divorce according to the good or evil which he has seen resulting from particular cases, or according to his particular interest.
In England, a marriage may be dissolved in case of adultery. But it is necessary to seek for a divorce through many tribunals; and an act of parliament upon this subject costs at least five hundred pounds sterling. Divorce is therefore accessible only to a very limited class.
In Scotland, adultery is a sufficient ground for a divorce. The law is mild in this respect, but it has a rigorous side: it does not permit the culpable party to contract another marriage with the accomplice of his guilt.
In Sweden, divorce is permitted for adultery on both sides: this amounts to the same as if it were permitted upon mutual consent; the man allows himself to be accused of adultery, and the marriage is dissolved. In Denmark, the law is the same, at least when collusion cannot be proved.
Under the Code Frederick, parties might separate by agreement, and afterwards be remarried, upon condition of remaining single a whole year. It would seem that this interval, or a part of this interval, would have been better employed in delay before granting the divorce.
At Geneva, adultery was a sufficient reason; but the separation might also be effected on account of simple incompatibility of character. A woman, by quitting the house of her husband, and retiring to that of her friends and relations, afforded grounds for a demand, which had always the legal effect of a divorce. Divorces were, however, rare; but as they were proclaimed in all the churches, this proclamation acted as a species of punishment or public censure, which was always dreaded.
When marriages were rendered dissoluble in France at the will of the parties, there were between five and six hundred divorces at Paris in two years; but these took place whilst the institution was new, and when, therefore, it would not be possible to judge of its usual operation.
Divorces are not common in those countries in which they have been long authorized. The same reasons which hinder legislators from permitting them, deter individuals from availing themselves of them when they are permitted. The government which interdicts them, takes upon itself to decide, that it understands the interests of individuals better than they do themselves. The effect of the law is evil or null.
In all civilized countries, the woman who has experienced ill-treatment on the part of her husband, has obtained from the tribunals what is called a separation. There does not result from this, permission to either of the parties to re-marry. The ascetic principle, the enemy of pleasure, has permitted the mitigation of punishment; but the injured wife and her tyrant are subjected to the same condition. This apparent equality covers great real inequality. Opinion allows great liberty to the stronger sex, but imposes great restraint upon the weaker one.
On what Conditions?
The only inquiry at present is, what are the matrimonial conditions which, according to the principle of utility, are suitable to the greatest number: for it ought to be lawful for the parties interested in these contracts, to make their own particular stipulations; in other words, the conditions ought to be left to their own will, saving the ordinary exceptions:—
First Condition.—“The wife should submit to the laws of the husband, saving recourse to justice.” Master of the wife as to what regards his own interests, he ought to be guardian of the wife as to what regards her interests. Between the wishes of two persons who pass their life together, there may at every moment be a contradiction. The benefit of peace renders it desirable that a pre-eminence should be established, which should prevent or terminate these contests. But why is the man to be the governor? Because he is the stronger. In his hands power sustains itself. Place the authority in the hands of the wife, every moment will be marked by revolt on the part of the husband. This is not the only reason: it is also probable that the husband, by the course of his life, possesses more experience, greater aptitude for business, greater powers of application. In these respects there are exceptions; but the question is, what ought to be the general law?
I have said, “saving recourse to justice;” for it is not proper to make the man a tyrant, and to reduce to a state of passive slavery the sex which, by its weakness and its gentleness, has the greatest need of protection. The interests of females have too often been neglected. At Rome, the laws of marriage were only the code of the strongest, and the shares were divided by the lion. But those who, from some vague notion of justice and of generosity, would bestow upon females an absolute equality, would only spread a dangerous snare for them. To set them free, as much as it is possible for the laws so to do, from the necessity of pleasing their husbands, would be, in a moral point of view, to weaken instead of strengthen their empire. The man, secure of his prerogative, has no uneasiness arising from his self-love, and derives enjoyment even from sacrificing it. Substitute to this relation a rivalry of powers, the pride of the strongest would be continually wounded, and would prove a dangerous antagonist for the more feeble; and placing a greater value upon what was taken, than upon what was still possessed, it would direct all its efforts to the re-establishment of its pre-eminence.
Second Condition.—“The administration should belong to the man alone.” This is a natural and immediate consequence of his empire. Besides, it is commonly by his labour that the property is acquired.
Third Condition.—“The right of enjoyment should be in common.” This condition is admitted; 1st, For the benefit of equality. 2d, In order to give to both parties the same degree of interest in the domestic prosperity: but this right is necessarily modified by the fundamental law, which subjects the wife to the authority of the husband.
The diversity of conditions, and the nature of property, would require many details on the part of the legislator. But this is not the place for stating them.
Fourth Condition.—“The wife shall observe conjugal fidelity.” The reasons which direct that adultery should be considered as a crime, need not be exposed here; they belong properly to the penal code.
Fifth Condition.—“The husband shall observe similar conjugal fidelity.” The reasons for considering the adultery of the husband as criminal will also belong to the penal code: they have less weight, but there are still sufficient reasons for establishing this legal condition.
At what Age?
At what age should it be lawful to marry? It ought not to be before the age at which the contracting parties can be considered capable of understanding the value of this engagement; and more regard should be paid to this particular, in those countries in which marriages are considered indissoluble. How many are the precautions which ought to be taken, in order to prevent a rash engagement, when repentance would be useless! The right ought not, in this case, to have a period anterior to that at which the individual enters upon the administration of his property. It would be absurd that a man should be able to dispose of himself for ever, at an age at which it is not lawful for him to sell a field of the value of ten crowns.
Who shall choose?
Upon whom shall the choice of a husband or a wife depend? This question presents an apparent, if not a real absurdity; as if such a choice could belong to any other than the party interested.
The laws ought never to entrust this power to the parents;—they want two things requisite for its beneficial exercise, the requisite knowledge, and a will directed to the right end. The manner in which parents and children see and feel, is not the same; they have not the same interests. Love is the moving principle of youth; the old scarcely feel it. Fortune, in general, is a feeble consideration among children; it is an important one with parents. What the child wishes, is to be happy; what the parent wishes, is that he may also appear to be so. The child would sacrifice every thing for love; but the parents would often sacrifice this interest to every other.
To receive into their family a son-in-law, or a daughter-in-law, whom they dislike, is a disagreeable circumstance; but is it not much more cruel for the children to be deprived of the husband or the wife which would make them happy? Compare the sufferings on both sides. Is there any equality? Compare the probable duration of the life of the parent and the child: see if you ought to sacrifice that which is just commencing, to that which is drawing to a close. Thus much for the simple right to prevent. What shall be said if, under the mask of a parent, an unpitying tyrant should seek to abuse the gentleness and timidity of his child, in order to compel a union with a person that was detested?
The connexions of children depend greatly upon those of their parents. This is partly true as respects the sons, and entirely as respects the daughters. If the parents neglect to use this right; if they do not strive to direct the inclinations of their family; if they leave the choice of their acquaintances to chance,—to whom are the imprudences of their youth to be ascribed? In conclusion, in taking from them the right to bind or to compel, it is not necessary to take from them that of modifying and retarding. Two periods may be distinguished in the marriageable age: During the first, want of consent on the part of the parents ought to suffice for annulling the marriage. During the second, they should still have the right to retard for some months the completion of the contract. This time should be given them, that they might make use of their advice.
There exists a custom sufficiently singular in one country in Europe renowned for the wisdom of its institutions: The consent of the parents is necessary to the marriage of minors, unless the lovers can travel a hundred leagues without being stopped. But if they have the good fortune to cross a small stream, ascend a slight hill, and reach a certain village, they may in a moment pronounce the nuptial vow before the first comer, though he ask them no question—and the marriage is valid, and the parental authority is overthrown. Is it for the encouragement of adventurers that a privilege of this kind is allowed to subsist? Is it from a secret desire to weaken the power of parents, or to favour what are otherwise called unequal matches?
How many contracting Parties?
Between how many persons ought this contract to subsist at one time?—in other words, ought polygamy to be tolerated?—Polygamy is either simple or double. It is simple where there is Polygynia, a multiplicity of wives; or Polyandria, a multiplicity of husbands.
Is polygynia useful or hurtful? Every thing which it has been possible to say in its favour, has only related to certain particular cases, to certain transitory circumstances: when a man, by the sickness of his wife, is deprived of the sweets of marriage, or when, by his profession, he is obliged to divide his time between two residences, as the commander of a vessel, &c.
That such an arrangement may sometimes be desirable to the man, is possible; but it never can be so to the wives. For every man there would always be two wives, whose interest would be sacrificed.
1. The effect of such a license would be to aggravate the inequality of conditions. The superiority of wealth has already too great an ascendancy, and this institution would make it still greater. A rich man, forming an alliance with a woman without fortune, would take advantage of her position to prevent his having a rival. Each of his wives would find herself in possession only of the moiety of a husband, whilst she might have constituted a source of happiness to another man, who, in consequence of this iniquitous arrangement, would be deprived of a companion.
2. What would become of the peace of families? The jealousies of the rival wives would spread among the children. They would form opposed parties, little armies, having each at their head an equally powerful protectrix, at least, with respect to her rights. What a scene of contentions! what fury! what animosity! From the relaxation of the fraternal bonds, there would result a similar relaxation of filial respect. Each child would behold in his father a protector of his enemy. All his actions of kindness or severity, being interpreted by opposite prejudices, would be attributed to unjust feelings of hatred or affection. The education of the children would be ruined in the midst of these hostile passions, under a system of favour or oppression, which would corrupt the one party by its rigours, and the other by its indulgences. In the East, polygamy and peace are found united, but it is slavery which prevents discord: one abuse palliates another; every thing is tranquil under the same yoke.
There results from it an increase of authority to the husband: what eagerness to satisfy him! what pleasure in supplanting a rival by an action which is likely to please him! Would this be an evil or a good? Those who, from a low opinion of women, imagine that they cannot be too submissive, ought to consider polygamy admirable. Those who think that the ascendancy of this sex is favourable to suavity of manners—that it augments the pleasures of society—that the gentle and persuasive authority of women is salutary in a family—ought to consider this institution as very mischievous.
There is no need of seriously discussing polyandria, nor double polygamy. Perhaps too much has been said upon this first subject, if it were not well to show the true foundations upon which manners are seated.
With what Formalities?
The formalities of this contract ought to refer to two objects: 1st, To ascertain the fact of the free consent of the two parties, and of the lawfulness of their union; 2dly, To notify and ascertain the celebration of the marriage for the future. It would also be proper to exhibit to both the contracting powers the rights they are about to acquire, and the obligations with which they will be chargeable according to law.
Most nations have attached a great solemnity to this act; and it is not to be doubted but that ceremonies which strike the imagination, serve to impress the mind with the importance and dignity of the contract.
In Scotland, the law, much too easy, does not require any formality. The reciprocal declaration of the man and the woman, in the presence of a witness, is sufficient to render a marriage valid. Hence it is to a village upon the frontier of Scotland, named Gretna Green, that minors, impatient of the yoke of their parents or guardians, hasten to emancipate themselves by an off-hand marriage.
In instituting these forms, two dangers ought to be avoided: 1st, The rendering them so embarrassing as to prevent a marriage, when neither freedom of consent nor the necessary knowledge are wanting; 2dly, The giving to the persons who ought to concur the power of abusing this right, and of employing it to a bad purpose.
In many countries, it is necessary to tarry long in the vestibule of the temple before advancing to the altar, under the title of affiances: the chains of the engagement are borne, without its advantages. What purpose does this work of supererogation answer, except the multiplication of embarrassments and snares? The Code Frederick is justly chargeable, in this respect, with useless restraints. The English law, on the contrary, has, on this occasion, chosen the part of simplicity and clearness: every one knows to what he is bound: a man is either married, or he is not.
OF THE LEVELLING SYSTEM.*
“All human creatures are born and remain,” says the Declaration of Rights, “equal in rights.” It has hence been argued, that they ought to be equal in property; and that all the distinctions which have grown up in society in this respect, should be swept away, and every individual placed on the same level in point of actual possessions.
Such a system would, however, be destructive both of security and wealth. It would be destructive of security. What a man has inherited from his ancestors—what he has himself earned, he hopes to keep; and this hope cannot be interrupted without producing a pain of disappointment. But if, of two persons, the one is to take from the other a portion of the property he possesses to-day, because he is the poorer; for the same reason, a third should take a portion of such property from both to-morrow, as being poorer than either; and so on, till all security in the possession of property—all hope of retaining it, were altogether abolished.
As no man could, at this rate, be secure of enjoying any thing for two moments together, no man would give himself the trouble to improve any thing by his labour: all men would live from hand to mouth.
While the levelling process is going on, it is destructive to security; when completed, it is destructive, and that for ever, of national opulence. The wealth of a nation is the sum of the fortunes of individuals; but the sum of the fortunes of individuals is reduced by the levelling system in an infinity of ways. Whatever be the quantum of wealth allowed of, to reduce fortunes to this standard the community must be emptied of all articles of wealth, which cannot exist but in a quantum superior to that standard.
The English nation is, for a nation of any considerable size, generally acknowledged to be the richest, in proportion to the number of the people, of any nation under the sun. But in this richest nation, those who have reckoned its wealth at the highest, have not set down the annual expenditure of its inhabitants, taking even the very richest into the account, at more than £20 a-year each. If, then, the whole wealth of the nation were divided with the most perfect equality among its inhabitants; and were all of it capable of being thus divided, it would scarcely be more than sufficient to enable every one of them, so long as the stock of it was kept up at the same level, to spend more than £20 a-year. But were such a distribution to be made, an immense multitude of articles—wealth to an immense amount—must necessarily be struck out, as being incapable of division, and thence incapable of entering into the distribution. At 30 years’ purchase, a perpetual income of £20 a-year corresponds to a capital or principal sum of £600. All articles, therefore, of a value superior to £600, must either be destroyed at once, or left to perish, sooner or later, for want of being kept up; that is, kept in repair, and properly taken care of.
The following, then, are the articles to the existence of which the system in question would be fatal; and that not only in the first instance, but for ever after during its continuance; and of which the aggregate value must therefore be struck out of the aggregate amount of the national wealth.
1. All buildings above the mark; that is, all that would now be thought to come under the name of considerable buildings—all considerable dwelling-houses, warehouses, manufactories.
2. All furniture, except what is now of the meanest kind—all furniture suitable to the circumstances of a family having more than £20 a-year a-head to live on.
3. All horses, except a few of those at present kept for husbandry. No one nor two in a family could afford to keep a horse, since the expense of that article alone would exceed the family income. All horses fit for military service; consequently, a great part of the manure which is supplied by that valuable species of cattle would be lost. In the earliest, and what are vulgarly called the purest times of the Roman Commonwealth, those whose wealth enabled them to serve on horseback formed an order of men, distinct from and superior to those who served on foot. A commonwealth that admitted of such distinctions, could never be tolerated under this system of equalisation.
4. All considerable libraries. All libraries the value of which depended upon their completeness in regard to any particular branch of literature, and of which the characteristic value would be destroyed by the degree of dispersion which the execution of the equalisation plan would necessitate.
5. All considerable collections of natural history; and hence all means of prosecuting that branch of study to advantage would cease.
6. All considerable laboratories and establishments for the prosecution of experimental inquiries with a view to the advancement of agriculture, manufactures, or arts. Hence all means of promoting the advancement, or even preventing the decay of experimental science, would cease.
7. All fortunes capable of affording funds sufficient for the purchase of the constant supply of publications relative to any branch of knowledge at the rate of abundance at which the literary market is supplied with these productions in the present state of things.
8. All fortunes capable of affording funds applicable to the improvement of land, mines, or fisheries, upon an extensive and advantageous scale.
9. All fortunes capable of affording, at an early period of life, a fund in store sufficient for the maintenance of the numbers of children of which the marriage union may in every instance, and in many instances will eventually be productive.
10. The whole value of the labours of those whose industry is at present employed in supplying the productions adapted to the demands of persons in easy circumstances—of all those at present employed as workmen in the different branches of the arts, and of the finer manufactures—all musicians, architects, painters, sculptors, engravers, carvers, gilders, embroiderers, weavers of fine stuffs, florists, and the like. All these, finding nobody rich enough to deal with them, must immediately betake themselves to husbandry or other coarse labour, which their habits of life have disqualified them from exercising to any advantage.
11. The whole of that property which consists in annuities payable by government out of the produce of taxes imposed on the fruits of industry. As those taxes are imposed almost exclusively on superfluities, and all superfluities will be expunged from the book of national wealth, national bankruptcy will be among the necessary and immediate consequences of such a change.
12. Whether it be of advantage or of detriment to the state, or a matter of indifference, that small farms should be laid into large ones, is a controverted point, upon which it is not necessary here to touch. But what can not admit of controversy is, that in a multitude of instances, farms, large or small, would suffer much in value by being broken down into smaller ones. A spring or pond, a convenient communication with the highway or bridge, serves at present for the whole of a farm: divide this farm among a number of proprietors, and only a small part of the original farm, or perhaps no part at all, will now derive any benefit from that conveniency, which before the division was enjoyed by the whole. A certain portion of land fit for one sort of culture, requires certain other portions of land fit for other sorts of culture, to be employed with most advantage;—to so much arable, so much wood, so much meadow land. Under the division, one man has wherewithal to buy the meadow land only, another the wood-land only, and the arable must be divided into several little plots, to come within the quantum of purchase-money which the equalisation plan allows. There are fields, each of them too large for any one purchaser, and which, without new inclosures correspondent to the number of the purchasers, must lose the benefit of inclosure. But the purchaser’s capital is all of it expended in the purchase: he has nothing, no fund left for the expenses of inclosure. One house, one set of outhouses, serves for the whole of the farm in its undivided state. Divide it into the £20 a-year portions, he who gets the dwelling-house is perhaps unable to get the outhouses; if he get the house and outhouses, he perhaps is unable to get any of the land; if he get a small scrap of the land, and it can be but a small one, none of the other fragments of farms carved out of the entire farm has any building belonging to it. But without buildings, they will be worth little or nothing; and as to erecting the buildings, it is impossible: what capital each man had, is expended in the purchase of the naked land. But as every man must have a house to live in, and every man who cultivates a farm must have outhouses of some kind or other to lodge the stock and produce of it, a fund for these articles of indispensable necessity must be provided in the first instance, and the fragments of farms must consequently be reduced to the miserable and unproductive pittance, the annual value of which corresponds to the small remnant of capital that remains to buy them. Thus great is the part of the existing mass of wealth which would therefore be destroyed by the division, as being in its own nature incapable of division. But of that which remained, as not being in its own nature incapable of division, a great part again would be consumed in the process. The whole mass of national property would have to come under the hammer; and every time either the sale of an estate or a division of the produce of the sale came to be made, every sale and every distribution would afford a fresh source of disputes between the plundered and the plundered, between plunderers and plunderers, and between plunderers and plundered, and a fresh demand for the labours, and a fresh harvest for the men of law. Auctioneers with their retainers are already, in the present system of things, in no small number; men of law in greater number than most people would wish to see. On the system in question, the populousness of these predatory professions would be multiplied beyond all measure. An effective tithe of the national property, not to speak of a nominal tithe like the present ecclesiastical one, would scarcely be sufficient for the payment of this enormous mass of unproductive and disastrous services.
Present time, it may be said, is but a point: it is as nothing in comparison with futurity. Admitting that the existing generation might, upon the whole, be losers by such a change, those whose ardent zeal would prompt them to attempt it, may still think, or affect to think, the change an advantageous one for the human species upon the whole. But futurity would have as little reason to rejoice in it as present time.
Opulence is valuable, not merely on its own account, but as a security for subsistence. The rich, were they to deserve proscription because of their riches, deserve to be saved from proscription in quality of bankers to the poor. Estates broken down to the scantling in question, or to any thing like that scantling, would afford no resource against scarcity, or any other calamity, such as fire, famine, or pestilence, that required a considerable treasure in store to be employed to alleviate the load of it. They would afford no fund for the expenses of a war, even of a defensive one.
Along with the whole stock of opulence, would go that branch of security which depends upon the means of national defence. In war, the measure of raising within the year supplies for the service of the year—desirable as such a measure would in the opinion of every one be, if it were practicable, has always been given up as attended with too much difficulty and even danger, to be attempted; and this even in the present state of opulence, when the number of those capable of contributing, and contributing largely, is so great. How would it be when those who were best able to contribute had but £20 a-year to live on? It is now looked upon as impracticable: then it would be beyond measure more so, even though every man had his £20 a-year; much more when that pittance is reduced to perhaps two-thirds, perhaps half, by the various causes of reduction which would be in operation. At the same time, to raise the supplies otherwise than within the year, would be still more palpably impracticable; it would be physically impossible. At present, if so many millions are raised with so much ease within the year by way of loan, it is because there are so many thousands of persons who have each so many thousands of pounds to lend, so many thousands more than they have need to employ otherwise. Upon the equalisation scheme, all these monied men would be no more: nobody would have any thing he could spare for any length of time, much less for ever; no man would have any thing but from hand to mouth.
As to the gainers—(I speak always of the immediate and momentary gainers, for ultimately, as we shall see, there would scarcely be a real gainer left in the nation)—as to the real gainers, if they were to be looked for any where, it would be in the class of the present day-labourers in husbandry. Their employment need not be changed: they would continue labourers in husbandry, with this comfortable difference, as it would be thought, of labouring upon, and for the benefit of their own property, instead of other people’s. But even these would for the most part gain nothing but ruin by the change. Their fragments of farms having no buildings on them, would be useless to them till buildings could be erected. A man might farm profitably, and live comfortably a year or two hence, if he were then alive: but in the meantime he would not be able to farm or live at all. The immense multitude of new created farms, all of them without buildings, would require an immense and instant multiplication of the number of workmen concerned in building. But this number, instead of being multiplied, or so much as increased, would be as immediately and permanently reduced: for they too would have their portions, as well as the labourers in husbandry: if they laboured any longer, it would be upon their own property, not upon other people’s. If they laboured at all, what inducement would they have to labour upon other people’s property, or indeed for other people? What would they get by it? an addition to their respective portions? But that, by the supposition is not to be suffered. No sooner was it become property, than it would come to be divided: no sooner had they got it, than it would be taken from them.
This supposes every body day-labourers and mechanics devoted to industry, disposed to frugality, proof against all temptation to excess, even in the midst of a sudden and unexpected influx of the momentary means of excess and dissipation. But even in the present system of things, this extraordinary degree of moderation is, under such circumstances, hardly to be expected from one in ten among those classes; and under the proposed new system, industry and frugality would be but folly, as we shall presently have occasion to observe.
Who would be the losers—I mean the immediate losers—by such a change? Those, and at first sight it might seem those only, whose present fortunes are above the mark. But these would be but a small part of the real and effective losers. To the list of present proprietors must be added that of all those sons of industry whose present annual earnings are to a certain amount superior in value to the intended common portion;—all professional men in any tolerable practice—physicians, surgeons, lawyers, artists, factors, and the like;—many handicrafts of the superior kind, such as mathematical-instrument makers, millwrights, shipwrights, musical-instrument makers, &c.; and even mere labourers, where the labour is severe, as coal-heavers, &c. earn from £50 to £200 a-year, which the greater part of them are in the habit of spending as it comes. What would be either their present feelings, or even their future advantage, on changing their £50 or £200 a-year for life into a perpetuity even of £20 a-year, supposing the common portion could amount to so much, instead of falling widely short of that mark, as it will soon be seen to do?
Equalisation laws, made at the expense of existing rights and expectations, are alike destructive to present security in respect to property, and to permanent security in respect of subsistence. The desire to establish such laws, or to cause them to be established—the love, the passion for equality, has its root, not in virtue, but in vice; not in benevolence, but in malevolence.
A law of this complexion is a mere act of robbery—but of robbery upon a large scale. In the nature and quality of its effects, it is undistinguishable from the crime that goes by that name; but in point of extent, the mischief of it is as much greater as the power of the government is greater than that of the private robber. The power of the ordinary robber goes not beyond a few moveables; and such moveables as may easily and speedily be conveyed away: the power of the legislating robber extends to immoveables—to every thing—to the future as well as to the present. The power of the ordinary robber extends not beyond the few whom chance may throw in his way: the power of the authorised robber extends over the whole territory of the state.
The passion for equality has no root in the benevolent affections: its root is either simply in the selfish affections, or in the selfish, combined with the malevolent. You being superior to me in wealth or power; my wish is that we may be equal. What is the object of that wish? in what possible way can it have its gratification? In one or other, and only in one or other of two ways: either by raising myself to your level, or by pulling you down to mine. If it be the first only that is in my thoughts, self-interest, and that only, is my ruling motive: if the first and the second, envy conjoined with selfishness are the passions that govern me. The man of benevolence is the man to whom the spectacle of another’s happiness is delightful. The lover of equality, in its most refined form, is the man to whose eyes the spectacle of another’s prosperity is intolerable. What is the envious man but the same? What, then, is this so much boasted passion for equality? It is a propensity which begins in vice and leads to ruin. In the scale of merit, it is as much below selfishness as selfishness is below the virtue of benevolence.
Equality, were it brought to the highest pitch of perfection to which the hearts of the most sanguine votaries of the equalisation plan could wish to carry it, would still be but the semblance of equality in effect. If equality in point of wealth be desirable, it can only be so in the quality of an efficient cause of equality in point of happiness: at least in as far as the quantum of happiness depends on that of wealth. But of equality in point of wealth, nothing like equality in point of happiness can be the result: not even in so far as happiness depends on wealth. Equality in point of wealth, is equality in point of means of happiness: but what does equality of means, in favour of happiness, where equality in point of wants is wanting? The allotments in point of wealth, to be productive of equality in point of happiness, must be not equal, but proportional; not equal to one another, but all of them proportioned to men’s respective wants. It is only from proportionality, not from equality in point of wealth, that equality in point of happiness can arise. Where is the equality between me and my robust and healthy neighbour, if I am dying for want of that relief in the way of medicine, sea-bathing, or change of air, which a portion of his allotment out of the estate that was all of it mine, but is now shared with him and others, would have enabled me to procure?
Inequality is the natural condition of mankind. Subjection is the natural state of man. It is the state into which he is born: it is the state in which he always has been born, and always will be, so long as man is man: it is the state in which he must continue for some of the first years of his life, on pain of perishing. Absolute equality is absolutely impossible. Absolute liberty is directly repugnant to the existence of every kind of government.
All human creatures are born and remain, says the declaration of rights, equal in rights. The child of two years old has as much right to govern the father, then, as the father has to govern the child.
Without the subjection of either the wife to her husband, or the husband to the wife, no domestic society as between man and wife could subsist. Without the subjection of the children to the parent, no domestic society, as between parent and child, could subsist: all children under a certain age must soon perish, and the species become extinct. But the persons thus placed under subjection by non-age, are at least half of the species, and those placed in a similar state by marriage not less than a third of the remaining half. Subjection, then, is the natural and unavoidable state of at least two-thirds of the species; and if it were possible that any thing like independence could subsist among any part of it, it could only be among the remaining third.
As the doctrine of universal independence is repugnant to possibility and the nature of things, so is the doctrine of universal equality absolutely repugnant to the existence of general independence, in as far as independence is possible. Those who are exempt from domestic subjection, can in no intelligible sense be said to be equal in point of rights to those who are under it. If universal equality, then, were the object that ought to be in view, universal subjection, as strict as domestic subjection, would be the only means of obtaining it. Universal equality by independence you cannot possibly have: equality as universal as you please, by subjection as universal as you please, you may have, if you desire to have it, with one exception only, that of the monarch.
The great point is to get any government at all: it is the most useful point, and the most difficult. When once you have got your government, and got it tolerably settled, then is the time to temper it.
But why combat shadows, it may be said, and expatiate upon a scheme of equalisation which you are representing as impracticable? It is only for equality, so far, and so far only as it is practicable, and practicable to advantage, that we contend: for the lopping off the superfluities of overgrown and excessive opulence, for alleviating the sufferings of excessive misery: for planting and maintaining the virtuous race of industrious proprietors; for planting and maintaining plenty without luxury, and independence without insolence. To push any system to an absurd excess, and then give the abuse of the system as the system itself—what can be more uncandid or more inconclusive? Your objections would be just enough if applied to the abuse of the system proposed, but have no force against a moderate and prudent application of it.
My answer is, that it admits not of any moderate or prudent application: that the principle admits not of your stopping anywhere in the application of it: that on pain of abandoning and passing condemnation on the principle, when once the process of forced equalisation is begun, it must go on and be pursued all lengths, even to the lengths that have been described: that the principles publicly avowed by the professed partisans of equality, go all these lengths in the very words, as well as according to the spirit of their most public and most boasted productions: that the doctrine of equal rights is laid down without reserve: that no line is drawn, or attempted to be drawn; that the words employed exclude the drawing of any such line; and that if any line had been drawn, or were to be attempted to be drawn, the attempt would not so much as palliate, much less remedy the evil: and that to the imputation of error it would only add the reproach of inconsistency and dereliction of principle.
To stop at any one point in the career of forced equalisation, would neither afford security to such of the rich as it left unplundered, nor satisfaction to the poor whom it left unenriched. An object being avowed, which can never be attained so long as I have a penny more than the beggar that plies before my door, what assurance can I give myself any day (says the rich man, who hath as yet been spared), that it may not be my turn the next? Will the vagabonds that have as yet got no share, be satisfied with the plunder that has fallen to the lot of their brother vagabonds that are consuming theirs? Where is the justice, where the equality of this pretended equalisation plan? cries the expectant beggar, whom the division has not yet reached. Why have my wants been so long neglected, while those of my neighbour have been so long satisfied? Am I less a citizen than he? is my happiness less a part of the happiness of the community than his? So far from gaining by the change, I am as yet a loser by it. Till now, only the few, now the many, are above me. Till now, my superiors were out of my sight; now they are incessantly at my elbow. Till now, my superiors were all strangers to me; now my equals, my familiars, swell the list. Not a step can I stir without falling in with an acquaintance, revelling in enjoyments, of which, it seems, I am destined never to partake.
As these discontents will arise at every step made in the progress, so will they at every other that can be made, and always with equal reason—or rather with superior and accumulating reason. Every preceding step will have afforded a precedent, and the commencement of a justification of the succeeding ones: what at first was theory, will have been settled into practice: what at first was innovation, will have become establishment: till at length the original race of proprietors having been reduced to nothing, and all hope or possibility of repairing an injustice done to them being annihilated, the opposition made by justice will have ceased: justice will have become indifferent, and as it were neutral: the injustice of going on will not be exceeded by the injustice of stopping. Name who can the point at which the line of stoppage can be drawn. No such line hath as yet been drawn by any man; no such line attempted to be drawn by any man. Let arbitrary power have decreed (and what but power the most arbitrary could decree) that a line of this sort shall be drawn; that bounds of this sort shall be set to the process of equalisation,—what but caprice can draw it? what but corruption will be said or will be thought to have set them?
The argument that turns on the difficulty of stopping is a common one: it is become commonplace: it is open to abuse, and few have been more abused: it has been employed against salutary measures: and the more frequently and the more eagerly employed, as it is one of those general arguments which may be produced against measures which admit of no particular objections. It is more to the taste of the ignorant fool, and of the cowardly, than of the knowing or the brave: it is more apt to be employed in the defence of old abuses, than in the combating of novelties really pernicious.
It is one of those objections that is much better calculated to confirm partisans already gained, than to gain new ones; still more than to make proselytes from partisans engaged on the other side. To say to me (after admitting that as yet I am in a right track,) to say to me, you will find it impossible or difficult to stop, is to say to me, either prudence or fortune will be wanting to you: it is to say to me, that will happen which you are persuaded will not happen. It is to gall, in a multitude of tender points at once, the irritable frame of human vanity. It is to turn a disbelieving ear to my pretensions of present judgment and present forecast; it is to prophesy to me and my friends, a future deficiency in point of prudence and good fortune.
In the present instance, the argument wears a very different complexion, and strikes with a very different degree of force. It is—not that you will find it difficult to stop at a proper place, but that you ought not to stop anywhere: it is—not that you may be drawn on into the road to ruin, but that you can not, in the nature of things, so long as you pursue your intent, stop anywhere short of ruin: it is—not that you may be led on by heat of temper or untoward accidents beyond the bounds which the principle you set out upon has prescribed to you, but that you can not stop anywhere short of ruin without the dereliction of your principle; without a confession by action, more humiliating than any confession by words, that your whole system was from the first, on the whole, and in every part of it, a pernicious one, and the most pernicious of all political systems that ever were or can be devised. Not only the good expected from such a change would be too expensive, but were it ever so desirable, it would be altogether unattainable—at least unmaintainable for two instants together. Past equality does not answer the intention—present equality is the object; and whatever reason there may be for aiming at it at any one period of time, the same reason will there be for maintaining it at every other period of time. A fresh division must therefore be made upon every division that happened in the number of the sharers: a fresh division upon every birth, and upon every death a fresh division; or the inutility and folly of the original division must stand confessed.
Of this perpetual necessity of fresh divisions, what would be the result? Nobody would have any thing he could call his own: all property would in effect be destroyed—all present property, and all prospect of security in respect of property in future: all idea of subsistence except from hand to mouth: all incentive to labour beyond the satisfaction of the necessities of the day; for why should I bestow my labour to-day in the improvement of that property, which may be torn from me to-morrow?
A fresh division would again require to take place every time a person became helpless to such a degree as to be unable to make his own little property (his £15, his £10 a-year, or whatever the original portion of £20 was redued to) suffice for his own maintenance—a fresh division, or some other arrangement capable of answering the same purpose. Every birth adds, during the age of helplessness, to the sum of burthens; every death, by taking from the sum of burthens, adds relatively to the sum of benefits. But the addition made to the sum of burthens by infirmity happening to a grown person, is much greater than that made by the birth of an infant: the adult requires many times as much as the infant for his sustenance. The portion of the adult, now become helpless, was too small to afford him subsistence without the benefit of his labour to improve it. Being now incapable of all labour, he must either perish, or, to keep him alive, the portion of other people must be laid under contribution to make up the difference. Here, then, comes the necessity of a system to answer the purpose of the present poor-laws, with this difference—that for maintaining the growing increase of the poor, there remain none but what are poor already. The dispensations of equality have brought back the age of virtue—be it so: but virtue, however it may diminish disease, will not destroy it; virtue will not extirpate the smallpox nor the contagious fever; virtue will not prevent legs nor arms from breaking; virtue will not give robustness nor agility to the extremity of old age.
Equality amongst the members of a community—equality, whatever be the standard portion—includes two points: that no member shall have more than that portion; and that no one shall have less. The first of these points is attainable by the equalisation system to great perfection: the latter not. To the latter, this pure and exalted system is not more competent than the present abusive and corrupt one: it is even much less so. To industry it affords no new encouragement; on the contrary, it takes from it whatever encouragement it has at present. To what purpose should I earn more than the poorest of my fellow-citizens, when so much as I earn more than them, so much will be taken from me. Neither to idleness or to dissipation does it administer any new discouragement; on the contrary, it gives to both of these dispositions encouragement, and that the greatest they can receive. Putting idleness upon a footing of equality in point of future advantage with industry, and dissipation with frugality, it gives to each the portion of present pleasure with which it is attended, clear. Why, so long as I have a penny left, should I refuse the most expensive desire its gratification—when, whatever I dissipate of my own present stock, must be made up to me from that of other people? To what purpose, while I have a penny left, should I plague myself with working—when, so long as I have any thing to pay, others will work for me with pay, and when I have no longer pay to give them, they must work for me without it?
Here, then, is a perpetual race between dissipation and idleness on the one hand, and that plan of division, whatever it be, by which the law of equalisation is carried into execution, on the other: dissipation and idleness continually widening the gap; division of property using its best endeavours to fill it up. But the pace of dissipation is the pace of the racer; the pace of legal division that of the tortoise.
All this while, the members of the community are divided into two classes: the industrious and frugal, slaves toiling for others: the idle and prodigal, lords and masters, enjoying for themselves. Such would be the fruit of the equalisation system, while the execution of it was going on, until a certain portion of the national wealth having been destroyed in a variety of ways, and a certain portion of the national population destroyed by a mixture of famine and excess, the miserable would awaken from their delirium, curse the system and its inventors, and join their endeavours to bring back the former state of things.
PRINCIPLES OF PENAL LAW.
[* ]This method might give the slaves a temptation to employ murder to accelerate their emancipation. This is a very weighty objection against this lottery. It must, however, be observed, that even its uncertainty would weaken its danger. Few would be led to commit a crime of which they were not sure to reap the profit. But this temptation would vanish, if emancipation were not allowed to take place when the master had been poisoned or assassinated, either by one of his slaves, or by a person unknown. This means of liberation would thus become a source of security to the master.
[* ]The table of alliances to be prohibited to the woman would be necessary, in the text of the law, for greater clearness. It is omitted here as a useless repetition.
[* ]The following Essay is edited from the MSS. of Bentham.