Front Page Titles (by Subject) PART III.: OF INDIRECT MEANS OF PREVENTING CRIMES. - 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 INDIRECT MEANS OF PREVENTING CRIMES. - 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 INDIRECT MEANS OF PREVENTING CRIMES.
In all sciences, there are some branches which have been cultivated more slowly than others, because they have required a longer train of observations, and more profound reflection. Thus, in mathematics, one part is called transcendental, or sublime, because, so to speak, it is a new science, beyond the ordinary science.
The same distinction might, at a certain point, be applied to legislation. Some actions are hurtful: what ought to be done to prevent them? The first reply which presents itself to all the world is—Prohibit such actions; punish them. This method of combating offences is the most simple, and the first adopted; and every other method of attaining the same end is a refinement in art, and, so to speak, its transcendental part.
This part consists in providing a train of legislative proceedings for the prevention of offences, by acting principally upon the inclinations of individuals, for the purpose of diverting them from evil, and impressing on them the direction most useful to themselves and others.
The first method of combating offences, by punishments, constitutes direct legislation.
The second method of combating them, by means which prevent them, constitutes what may be called the indirect branch of legislation.
Thus the sovereign acts directly against offences, when he prohibits each one separately, under pain of special punishment: he acts indirectly, when he takes precautions to prevent them.
In direct legislation, the evil is attacked in front: in indirect legislation, it is attacked by oblique methods. In the first case, the legislator declares open war with the enemy: he hoists his signals, he pursues, he fights hand to hand with him, and mounts his batteries in his presence, in open day. In the second case, he does not announce his designs: he opens his mines, he consults his spies; he seeks to prevent hostile designs, and to keep in alliance with himself those who might have secret intentions hostile to him.
Political speculators have perceived all this; but in speaking of this second branch of legislation, they have not clearly expressed their ideas: the former has long since been reduced to system; the second has never been analyzed: no one has thought of treating it methodically, of classifying it,—in a word, of considering it as a whole. It is still a new subject.
Writers who have formed political romances tolerate direct legislation: it is the last resource to which they apply, and of which they never speak with a very lively interest. On the contrary, when they speak of the means of preventing offences—of rendering men better—of improving their manners—their imagination kindles, their hopes brighten, they believe that they are about to effect a great work, and that the condition of the human race is about to receive a new form. This arises from the habit of thinking every thing magnificent in proportion as it is unknown, and because upon such vague subjects the imagination has greater scope than upon those which have long been submitted to the yoke of analysis. Major e longinquo reverentiâ. This saying is equally applicable to thoughts and persons. A detailed examination will reduce all these undefined hopes to their just dimensions of what is possible; but if we lose some fictitious treasures, we shall be well indemnified by ascertaining the real extent of our resources.
In order clearly to ascertain what belongs to these two branches, it is necessary to begin by forming a just idea of direct legislation.
We should proceed in the following manner:—
1. To determine what acts ought to be considered as crimes.
2. To describe each crime: as murder, theft, peculation, &c.
3. To exhibit the reasons for attributing to these acts the quality of crimes—reasons which ought to be deduced from a single principle, and consequently which should agree among themselves.
4. To set apart a sufficient punishment for each crime.
5. To exhibit the reasons which serve to justify this punishment.
This penal system, if it were the best possible, would be defective in many respects:
1. It would require that the evil had existed, before the remedy could be applied. The remedy consists in the application of punishment; and punishment can only be inflicted after the crime is committed. Each fresh instance of the infliction of punishment is another proof of its inefficiency, and allows a certain degree of danger and alarm to subsist.
2. The punishment itself is an evil, although necessary for the prevention of a greater evil. Penal justice, throughout the whole course of its operation, can only be a train of evils—evils in the threats and constraint of the law—evils in the pursuit of the accused, before the innocent can be distinguished from the guilty—evils in the infliction of judicial sentences—evils in the inevitable consequences which reverberate upon the innocent.
3. In short, the penal system has not sufficient hold upon many mischievous acts which escape from justice—sometimes from their frequency, sometimes from the facility with which they are concealed—sometimes from the difficulty of defining them—sometimes from a wrong direction in public opinion, which screens them. Penal law can only act within certain limits, and its power only extends to palpable acts, susceptible of manifest proofs.
This imperfection of the penal system has induced a search after new expedients for supplying what is wanting. These expedients have for their object the prevention of crimes,—sometimes by taking away even the knowledge of evil—sometimes by taking away the power or the will to do evil.
The most numerous class of these means is connected with the art of directing the inclinations, by weakening the seductive motives which excite to evil, and by fortifying the tutelary motives which excite to good.
Indirect methods, then, are those which, without having the characters of punishment, act either physically or morally upon the man, in order to dispose him to obey the laws—to remove from him temptations to crimes, and govern him by his inclinations and his knowledge.
These indirect methods have not only great advantage in point of gentleness; they also often succeed when direct methods fail. All modern historians have remarked how much the abuses of the Roman Catholic Church have been diminished since the establishment of Protestantism. What popes and councils could not effect by their decrees, a happy rivalry has effected without trouble: they have feared to give occasion of scandal, which should become a subject for triumph to their enemies. Hence, this indirect method, the free competition of religions, has had greater force in restraining and reforming them, than all their positive laws.
We may take another example from political economy. It has been considered desirable that the prices of merchandise, and especially that the interest of money, should be low. High prices, it is true, are only an evil, by comparison with the good of which they hinder the enjoyment; but such as it is, there has been a reason for seeking to diminish them. In what manner has it been attempted? a multitude of regulations have been established—a fixed rate—a legal interest; and what has happened? The regulations have been eluded—punishments have been increased—and the evil, instead of being diminished, has increased also. There is no efficacy but in an indirect method, of which few governments have had the wisdom to make use. To leave a free course for the competition of all merchants, of all capitalists—to trust, instead of making war upon them—to allow them to supplant each other—to invite the buyers to themselves by the most advantageous offers:—such is the method. Free competition is equivalent to a reward granted to those who furnish the best goods at the lowest price. It offers an immediate and natural reward, which a crowd of rivals flatter themselves that they shall obtain, and acts with greater efficacy than a distant punishment, from which each one may hope to escape.
Before entering upon an exhibition of these indirect methods, I ought to acknowledge that the manner of their classification is a little arbitrary, so that several might be ranged under different heads. In order invariably to distinguish them from each other, an exceedingly subtle and fatiguing metaphysical analysis would be required. It is sufficient for the object in view, if all the indirect methods may be placed under one or other of these heads, and if the attention of the legislator be awakened to the principal sources from which they may be drawn.
I only add one preliminary remark, but it is an essential one. In the variety of measures about to be exhibited, there is not one that can be recommended as suitable to each government in particular, and still less to all in general. The special advantage of each measure, considered by itself, will be indicated under its title, but each may have relative inconveniences, which it is impossible to determine, without a knowledge of particular circumstances. It ought, therefore, to be well understood, that the object in view is, not to propose the adoption of any given measure, but solely to exhibit it to the view, and recommend it to the attention, of those who may be able to judge of its fitness.
METHODS OF TAKING AWAY THE PHYSICAL POWER OF INJURING.
When the will, the knowledge, and the power, necessary for an act concur, this act is necessarily produced. Inclination, knowledge, power; these, then, are the three points to which the influence of the laws may be applied, in order to determine the conduct of individuals. These three words contain in abstract the sum and the substance of every thing which can be done by direct or indirect legislation.
I begin with power, because the means of influence in this respect are more limited and more simple, and because, in those cases in which the power to injure is taken away, every thing is done—success is secure.
Power may be distinguished into two kinds: 1. Internal power, which depends upon the intrinsic faculties of the individual: 2. External power, which depends upon the persons and things which are without him, and without which he cannot act.*
As to internal power, which depends upon the faculties of the individual, it is scarcely possible to deprive a man of this advantage: the power of doing evil is inseparable from the power of doing good. When the hands are cut off, a man can hardly steal; but also he can hardly work.
Besides, these privative means are so severe, that they can only be employed with regard to criminals already convicted. Imprisonment is the only one which can be justified in certain cases, in order to prevent an apprehended offence.†
There are some cases in which the power of injuring may be taken away, by excluding what Tacitus calls irritamenta malorum—the subjects, the instruments of the offence. Here the policy of the legislator may be compared to that of a governess: the bars of iron for the windows, the guards around the fire, care in removing all sharp and dangerous instruments out of the reach of the children, are steps of the same kind; with the prohibition of the sale and fabrication of dies for coining, of poisonous drugs, of concealed arms, of dice, and other instruments of prohibited games; the prohibition of making and having snares or other means of catching game.
Mahomet, not trusting to reason, has sought to put it out of the power of men to misuse strong liquors. If we regard the climate of hot countries, in which wine produces fury rather than stupidity, it will perhaps be found that its total prohibition is more gentle than its permitted use, which would have produced numerous offences, and consequently numerous punishments.
Taxes upon spirituous liquors, in part, accomplish the same end. In proportion as the price is raised above the reach of the most numerous class, the means of yielding to intemperance are taken from them.
Sumptuary laws, so far as they prohibit the introduction of certain articles which are the objects of the legislator’s jealousy, may be referred to this head. It is this which has rendered the legislation of Sparta so famous: the precious metals were banished; strangers were excluded; voyages were not permitted.
At Geneva, the wearing of diamonds was prohibited, and the number of horses was limited.‡
Under this head may be mentioned many English statutes relative to the sale of spirituous liquors: their open exposure to sale is prohibited; it is necessary to obtain a licence which costs much, &c. The prohibition to open certain places of amusement on the Sunday belongs to this head.
To the same head must be referred measures for the destruction of libels, seditious writings, and obscene figures exhibited in the streets, and for preventing their printing and publication.
The old police of Paris prohibited servants from carrying not only swords, but also canes and sticks. This might have been a simple distinction of rank—it might have been as a means of security.
When one class of the people is oppressed by the sovereign, prudence would direct that they should be forbidden to bear arms. The greater injury becomes a justifying reason for the commission of the lesser.
The Philistines obliged the Jews to resort to them, whenever they wanted to sharpen their hatchets and saws. In China, the manufacture and sale of arms is confined to the Chinese Tartars.
By a statute of George the Third, any individual is forbidden to have more than fifty pounds weight of gunpowder in his house; and the dealers in gunpowder are forbidden to have more than two hundred pounds weight at one time. The reason assigned is the danger of explosions.
In the statutes relating to the public roads and turnpikes, the number of horses to be used in a carriage is limited to eight; except in case of the removal of certain articles, and in what relates to the public service connected with the artillery and ammunition. The reason assigned is the preservation of the roads.
If these measures, and others like them, have, besides, a political object, it is what I do not pretend to say; but it is certain, that such expedients may be employed for taking away the means of revolt, or diminishing the facilities for smuggling.
Among the expedients which may be derived from this source, I know of none more happy nor more simple than that which is employed in England for rendering the stealing of bank-notes difficult, when it is intended to send them by the post: they may be cut into two parts, and each part sent separately. The stealing of one half of the note would be useless, and the difficulty of stealing both parts, the one after the other, is so great, that the offence is almost impossible.
For the exercise of some professions, proofs of capacity are required. There are others which the laws render incompatible with each other. In England, many offices of justice are incompatible with the condition of an attorney: it is feared lest the right hand should secretly work for the benefit of the left.*
Contractors for the supply of provisions, &c. for the navy, are not allowed to sit in Parliament. The contractors may become delinquents, and subject to the judgment of the Parliament: it would not be proper that they should be members of it. But there are stronger reasons for this exclusion, to be drawn from the danger of increasing ministerial influence.
ANOTHER INDIRECT METHOD—HINDER THE ACQUISITION OF KNOWLEDGE WHICH MAY BE RENDERED INJURIOUS.†
I only mention this policy to proscribe it: it has produced the censorship of books; it has produecd the inquisition; it would produce the eternal degradation of the human race.
I intend to show—1st, That the diffusion of knowledge is not hurtful upon the whole; crimes of refinement being less hurtful than those of ignorance: 2d, That the most advantageous method of combating the evil which may result from a certain degree of knowledge, is to increase its quantity.
I say at once, that the diffusion of knowledge is not hurtful upon the whole. Some writers have thought, or appeared to think, that the less men knew, the better they would be; that the less they knew, the fewer objects would they be acquainted with, as motives to, or instruments for doing evil. That fanatics have held this opinion, would not be surprising, seeing there is a natural and constant rivalry between the knowledge of useful and intelligible things, and the knowledge of things imaginary, useless, and unintelligible. But this style of thinking, with respect to the danger of knowledge, is sufficiently common among the mass of mankind. They speak with regret of the golden age—of the age when nothing was known. In order to exhibit the mistake upon which this manner of thinking is founded, a more precise method of estimating the evil of an offence, than has hitherto been employed, is required.
That the crimes of refinement have been considered more hateful than the crimes of ignorance, is not surprising. In judging of the grandeur of offences, the principle of antipathy has been more followed than the principle of utility: antipathy looks more at the apparent degradation of character indicated by the offence, than at any other circumstance. This, in the eyes of passion, is the salient point in every action; in comparison with which, the strict examination required by the principle of utility will always appear cold. Now, the greater the knowledge and refinement indicated by a crime, the greater the reflection exhibited on the part of its author, the greater the depravation of moral dispositions indicated also: but the evil of a crime, the only object, according to the principle of utility, is not solely determined by the depravity of character exhibited—it depends immediately upon the sufferings of the persons who are affected by the crime, and the alarm which results from it to society in general; and into this sum of evil, the depravity which the criminal has manifested, enters as an aggravation, but not as an essential circumstance.
The greatest crimes are those for which the slightest degree of knowledge is sufficient; the most ignorant individual always knows how to commit them.
Inundation is a greater crime than incendiarism, incendiarism greater than murder, murder than robbery, robbery than cheating. This might be demonstrated by an arithmetical process, by an inventory of the items of evil on both sides, by a comparison of the extent of evil done to each person injured, and by the number of persons who would be enveloped in such evil. But how much knowledge must be possessed, that an individual may be qualified to commit such acts? The most atrocious of all only requires a degree of information which is found among the most barbarous and savage of men.
Rape is worse than seduction or adultery; but rape is more frequent in times of ignorance; seduction and adultery in times of civilization.
The dissemination of knowledge has not augmented the number of crimes, nor even the facility of committing them: it has only diversified the means of their accomplishment. And how has it diversified them? by gradually substituting those which are less hurtful.
Is a new method of cheating invented? the inventor profits for a time by his discovery; but soon his secret is discovered, and we are upon our guard. He must then have recourse to a new method, which, like the first, will last only for a time, and pass away. All this time it is only cheating, which is less mischievous than theft, which itself is a less evil than highway robbery.* For what reason? The confidence of every one in his own prudence, in his own sagacity, hinders him from being alarmed so much by a case of cheating as by a robbery.
Let us, however, acknowledge that the wicked abuse every thing,—that the more they know, the greater will be their means of doing evil: what follows?
If the good and the wicked compose two distinct races, as those of the blacks and the whites, the one might be enlightened whilst the other was held in ignorance. But since it is impossible to distinguish them, and since good and evil are so frequently mingled in the same individuals, one law must be established for all: general illumination or general blindness; there is no medium.
The remedy springs out of the evil itself. Knowledge confers no advantage upon the wicked, except they exclusively possess it: a snare, when recognised, is no longer a snare. The most ignorant nations have known how to poison the points of their arrows; but it is only those nations which are far advanced in civilization, which are acquainted with all poisons, and can oppose antidotes to each.
All men are qualified to commit crimes: it is only the enlightened who are qualified to frame laws for their prevention. The less instructed a man is, the more is he led to separate his interests from those of his fellows. The more enlightened he is, the more distinctly will he perceive the union of his personal with the general interest.
Examine the history of past times: the most barbarous ages will present an assemblage of all crimes, and even crimes of cheating, as well as those of violence. The grossness given to some vices does not exclude a single one. At what period were false titles and false dotations most multiplied? When the clergy alone knew how to read—when, from the superiority of their knowledge, they regarded other men nearly as we regard horses, which we could no longer render submissive to the bit and the bridle, if their intellectual faculties were augmented. Why, at the same time, had they recourse to judicial duels, to proofs by fire and water, to all those species of trials which they called judgments of God? It was because, in the infancy of reason, they had no principles upon which to discern between true and false testimony.
Compare the effects produced under those governments which have restrained the publication of thought, and those which have allowed it a free course. You have, on the one side, Spain, Portugal, Italy; you have, on the other side, England, Holland, and Northern America. Where are the most civilized manners and the greatest happiness? where are the most crimes committed? where is society most gentle and most secure?
Those institutions have been too much celebrated, in which their heads have monopolized all knowledge. Of this kind was the priesthood of ancient Egypt, the caste of the Bramins in Indostan, the societies of the Jesuits in Paraguay. Upon these institutions it is proper to make two observations: the first, that if their conduct have merited eulogium, it is with respect to the interest of those who have invented these forms of government, not with respect to the interest of those who have been subject to them. It may be admitted that the people have been tranquil and docile under these theocracies: have they been happy? This cannot be believed, if it be admitted that abject servitude, vain terrors, useless obligations and mortifications, painful privations and gloomy opinions, are obstacles to happiness.
The second observation is, that they have less completely obtained their design in maintaining natural ignorance than in spreading prejudices and propagating errors. The chiefs themselves have always finished by becoming the victims of this narrow and pusillanimous policy. Nations which have been retained in a state of constant inferiority by institutions which were opposed to all kinds of progress, have at length become the prey of other nations, who have obtained a comparative superiority. These nations, become old in their infancy, under tutors who prolonged their imbecility in order more easily to govern them, have always offered an easy conquest, and, once subjugated, have known no change but in the colour of their chains.
But it may be said, there is no question among us of leading men back to ignorance: all governments feel the necessity of illumination. What excites their fears, is the liberty of the press. They are not opposed to the publication of books of science; but have they not reason to oppose the publication of immoral and seditious writings, with regard to which there is no longer any opportunity of preventing their mischief, when once they are issued? To punish a guilty author may perhaps prevent the guilt of those who may be tempted to imitate him; but to prevent, by the institution of a censorship, the publication of evil books, is to stop the poison at its source.
The liberty of the press has its inconveniences, but the evil which may result from it is not to be compared with the evil of the censorship.
Where shall that rare genius, that superior intelligence, that mortal accessible to all truth and inaccessible to all passions, be found, to whom to confide this right of supreme dictation over all the productions of the human mind? Would a Locke, or a Leibnitz, or a Newton, have had the presumption to undertake it? And what is this power that you are obliged to confide to ordinary men? It is a power which, by a singular necessity, collects together in its exercise all the causes of prevarication, and all the characters of iniquity. Who is the censor? He is an interested judge—a sole, an arbitrary judge, who carries on a clandestine process, condemns without hearing, and decides without appeal. Secresy, the greatest of all its abuses, is essential to a censorship: publicly to plead the cause of any book would be to publish it, in order to determine whether it were fit for publication.
Whilst as to the evil which may result from it, it is impossible to estimate it, since it is impossible to say what it arrests. It is nothing less than the danger of arresting the progress of the human mind in every career. Every interesting and new truth must have many enemies, because it is interesting and new. Is it to be presumed that the censor will belong to that infinitely small number who rise above established prejudices? were he to possess this elevation of mind, would be possess boldness sufficient to compromise himself by discoveries of which he would not possess the glory? There is only one course of safety for him: it is to proscribe all but ordinary ideas—to pass his blasting scythe over every thing which rises above the ordinary level. He risks nothing by prohibition; he risks every thing by permission: by doubt he does not suffer; it is truth which is stifled.
If it had depended upon men invested with authority to regulate the progress of the human mind, where should we now have been? Religion, legislation, natural philosophy, morals, would still be all in darkness.
The proof of these well-known facts need not here be repeated.
The true censorship is that of an enlightened public, which will brand dangerous and false opinions, and will encourage useful discoveries. The boldness of a libel in a free country will not save it from general contempt; but, by a contradiction easily to be explained, the indulgence of the public in this respect is proportioned always to the rigour of the government.
OF INDIRECT MEANS OF PREVENTING THE WILL TO COMMIT OFFENCES.
We have seen that legislation can only operate by influencing the power, the knowledge, the will: we have spoken of the indirect means of taking away the power of injury: we have seen that the policy which would prevent men from acquiring information would be more hurtful than advantageous. All other indirect means which can be employed must therefore have reference to the direction of their inclinations; to the putting in practice the rules of a logic too little understood at present—the logic of the will—a logic which often appears in opposition to the logic of understanding, as it has been well expressed by the poet—
The methods we are about to present are of a nature to make this internal discord in many cases to cease; to diminish this contrariety among motives, which often exists only from the unskilfulness of the legislator—from an opposition which he has himself created between the natural and political sanctions—between the moral and religious sanctions. If he could make all these powers concur towards the same end, all the faculties of the man would be in harmony, and the inclination to injure would no longer exist. In those cases in which this object cannot be attained, it is proper that the power of the tutelary motives should be made to exceed that of the seductive motives.
I shall propose the indirect methods by which the will may be influenced in the form of political or moral problems, and I shall show their solution by different examples:—
Problem 1st, To divert the course of dangerous desires, and direct the inclination towards those amusements which are most conformed to the public interest.
2d, To make such arrangements, that a given desire may be satisfied without prejudice, or with the least possible prejudice.
3d, To avoid furnishing encouragements to crimes.
4th, To augment the responsibility of individuals, in proportion as they are more exposed to temptation.
5th, To diminish their sensibility with regard to temptation.
6th, To strengthen the impression of punishments upon the imagination.
7th, To facilitate the knowledge of the commission of crimes.
8th, To prevent crimes, by giving to many persons an immediate interest in preventing them.
9th, To facilitate the means of recognising and finding individuals.
10th, To increase the difficulty of escape to delinquents.
11th, To diminish the uncertainty of procedure and punishments.
12th, To prohibit accessory offences, in order to prevent their principals.
After these means, whose object is special, we shall point out others of a more general nature, such as the cultivation of benevolence and honour, the employment of the motive of religion, and the use which may be made of the power of instruction and education.
The object of direct legislation is to combat pernicious desires, by prohibitions and punishments directed against the hurtful acts to which those desires may give birth. The object of indirect legislation is to countermine their influence, by augmenting the force of the less dangerous desires which may enter into competition with them.
There are two objects to be considered:—What are the desires which it would be desirable to weaken? By what means may we attain this end?
Pernicious desires may arise from three sources:—1st, The malevolent passions; 2d, The fondness for inebriating liquors; 3d, The love of idleness.
The methods of diminishing them may be reduced to three heads:—1. The encouraging kindly feelings; 2. The favouring the consumption of non-inebriating liquors, in preference to those which intoxicate; 3. The avoidance of forcing men into a state of idleness.
Some persons may be astonished that the catalogue of the sources of vicious inclinations is so limited; but they must be made to observe, that in the human heart there is no passion absolutely bad: there is no one which does not need direction—there is no one which ought to be destroyed. It is said, that when the angel Gabriel prepared the prophet Mahomet for his mission, he took out of his heart a black spot which contained the seed of evil. Unhappily this operation is not practicable in the hearts of ordinary men. The seeds of good and evil are inseparately mixed: inclinations are governed by motives. But motives are constituted by pains and pleasures; by all pains to be avoided, by all pleasures to be pursued. Hence all these motives may produce all sorts of effects, from the best to the worst.
They are trees, which bear excellent fruits, or poisons, according to the aspect in which they are found, according to the culture of the gardener, and even according to the wind which prevails, and the temperature of the day. The most pure benevolence, too confined in its object, or mistaking its means, will be productive of crimes: selfish affections, though they may occasionally become hurtful, are constantly most necessary; and notwithstanding their deformity, the malevolent passions are always at least useful—as means of defence, as securities against the invasions of personal interest. No one affection of the human heart ought therefore to be eradicated, since there is not one which does not act its part in the system of utility. All that is required, is to work upon these inclinations according to the direction which they take, and the effects which can be foreseen. It may be possible also to establish a useful balance among them, by fortifying those which are usually weak, and weakening those which are too strong. It is thus that a farmer directs the course of the waters, that he may not impoverish his meadows, and prevents their inundation by dykes. The art of constructing dykes consists in not directly opposing the violence of the current, which would carry away every obstacle placed directly in its front.
The desire for intoxicating liquors is, properly speaking, the only one which can be extirpated without producing any evil, since the irascible passions, as I have said, are a necessary stimulant in the cases in which individuals have to protect themselves from injuries, and to repel the attacks of their enemies. The love of repose is not hurtful in itself; indolence is, however, an evil, inasmuch as it favours the ascendancy of evil passions. At all times, these three desires may be considered as requiring to be equally resisted. It need scarcely be dreaded, lest we should be too successful in overcoming the inclination to idleness, or that it will be possible to reduce the vindictive passions below the point of their utility.
The first expedient, I have said, consists in encouraging innocent amusements. This is one branch of the very complicated but undefined science which consists in advancing civilization. The state of barbarism differs from that of civilization by two characteristics:—1. By the force of the irascible appetites; 2. By the small number of objects of enjoyment which offer themselves to the concupiscible appetites.*
The occupations of a savage, when he has procured the necessaries for his physical wants—the only wants he knows—are soon described: the pursuit of vengeance—the pleasures of intoxication, if he possess the means—sleep, or the most complete indolence: these are all his resources. Each of his inclinations is favourable to the developement and action of every other: resentment finds easy access to an empty mind; idleness is the door of drunkenness, and drunkenness produces quarrels which nourish and multiply quarrels. The pleasures of love not being complicated by the sentimental refinements which embellish and strengthen them, do not occupy a conspicuous part in the life of the savage, and do not go far in filling up the intervals of his labours.
Under a regular government, the necessity of revenge is suppressed by legal protection, and the pleasure of giving way to it is repressed by fear of punishment. The power of indolence is weakened, but the love of intoxicating liquors is not diminished. A nation of savages, and a nation of hunters, are convertible terms. The life of a hunter offers long intervals of leisure, as well as that of a fisherman, provided they understand the means of preserving the species of food which they obtain. But in a civilized state, the mass of the community is composed of labourers and artisans, who have no more leisure than is required for relaxation and sleep. The misfortune is, that the passion for strong drinks may be gratified in the midst of a life of labour, and they may be taken during the hours set apart for repose. Poverty restrains it among the inferior classes; but artisans, whose labour is better paid for, may make great sacrifices to this fatal desire; and the richer classes may devote to it all their time. Hence we see that, in the rude ages, the superior classes have divided their life between war—the chase, which is the image of war—the animal functions, and long repasts, of which drunkenness was the chief attraction. The detail of such scenes formed the whole history of a great proprietor, of a grand feudal Baron, in the Gothic ages. The privilege of this noble warrior, of this noble hunter, seems to have been to prolong, in a more civilized society, the occupations and the character of the savage.
This being the case, every innocent amusement that the human heart can invent is useful under a double point of view:—1st, For the pleasure itself, which results from it; 2d, From its tendency to weaken the dangerous inclinations which man derives from his nature. And when I speak of innocent amusements, I mean all those which cannot be shown to be hurtful. Their introduction being favourable to the happiness of society, it is the duty of the legislator to encourage them, or, at least, not to oppose any obstacle to them. I shall mention the sources of some, commencing with those which are regarded as most gross, and proceeding to those which are considered as more refined:—
1. The introduction of a variety of aliments, and the improvement of horticulture applied to the production of nutritive vegetables.
2. The introduction of non-intoxicating liquors, of which coffee and tea are the principal. These two articles, which some superficial minds would be surprised to find occupying a place in a catalogue of moral objects, are so much the more useful, since they come in direct competition with intoxicating liquors.†
3. The improvement of every thing which constitutes elegance, whether of dress or furniture, the embellishment of gardens, &c.
4. The invention of games for passing the time, whether athletic or sedentary, among which the game of chess holds a distinguished rank: I exclude only games of chance. These tranquil games have brought the sexes more nearly upon an equality, and have diminished ennui, the peculiar malady of the human race, and especially of the opulent and the aged.
5. The cultivation of music.
6. Theatres, assemblies, and public amusements.‡
7. The cultivation of the arts, sciences, and literature.
When we consider these different sources of enjoyment, as opposed to the necessary means of providing subsistence, they are called objects of luxury: if their tendency be such as has been suggested, how singular soever it may appear, luxury is rather a source of virtue than of vice.
This branch of policy has not been entirely neglected, but it has been cultivated in a political, rather than in a moral view. The object has rather been, to render the people tranquil and submissive to government, than to render the citizens more united among themselves, more happy, more industrious, more honest.
The games of the circus were one of the principal objects of attention among the Romans. It was not merely a method of conciliating the affections of the people, but also of diverting their attention from public affairs. The saying of Pylades to Augustus is well known.
Cromwell, whose ascetic principles did not allow him to use this resource, had no other means of occupying the minds of his countrymen, than engaging the nation in foreign wars.
At Venice, a government jealous to excess of its authority, showed the greatest indulgence to pleasures.
The processions and other religious festivals of Catholic countries partly accomplished the same object as the games of the circus.
All these institutions have been considered by political writers as so many means of softening the yoke of power—of turning the minds of men towards agreeable objects, and preventing them from occupying themselves with the affairs of government. This effect, without having been the object of their establishment, has caused them to obtain more favour when they have been established.
Peter I. had recourse to a greater and more generous policy.
The manners of the Russians, with the exception of sobriety, were more Asiatic than European. Peter I., desirous of moderating their grossness, and softening the ferocity of their manners, employed some expedients which were perhaps a little too direct. He employed every possible encouragement, and went so far as to use violence, in order to introduce the European dress, the amusements, the assemblies, the arts, of Europeans. To lead his subjects to the imitation of the other nations of Europe, was, in other terms, to civilize them. But he found the greatest resistance to all these innovations. Envy, jealousy, contempt, and a multitude of antisocial passions, rendered them disinclined to an assimilation to these rival strangers. These passions no longer recognised their object when the visible marks of distinction were effaced. By taking away that exterior which distinguished them, he took away from them, so to speak, the pretext and aliment of these hateful rivalries. He associated them with the great republic of Europe, and he gained every thing for them by this association.
The rigid compulsory observance of the Sabbath, as in Scotland, in some parts of Germany, and in England, is a violation of this policy, which has no foundation in the Gospels, and is even contrary to many texts and positive examples.
Happy the people who, rising above brutal and gross vices, study elegance of manners, the pleasures of society, the embellishments of their places of resort, the fine arts, the sciences, public amusements, and exercises of mind. The religions which inspire sadness—the governments which render men mistrustful, and separate them one from another, contain the germs of the greatest vices and of the most hurtful passions.
The desires of which we are about to speak, as well as others which we have not mentioned, may be satisfied in different manners, and on different conditions, through all the degrees of the scale of morality, from innocence to the highest crime. That these desires may be satisfied without prejudice—such is the first object to be accomplished; but if they cannot be regulated to this point, that their satisfaction may not produce so great an injury to the community as that which results from a violated law—such is the second object. If even this cannot be attained, to arrange every thing in such manner, that the individual, placed by his desires between two offences, may be led to choose the least hurtful—such is the third object. This last object appears humble enough; it is a species of composition with vice: a bargain is made with it, so to speak, and it is sought that the individual may be satisfied at the least possible expense.
Let us examine how it is possible to deal upon all these points with three classes of imperious desires—1. Revenge; 2. Poverty; 3. Love.
Section I. For the satisfaction of vindictive desires without prejudice, there are two means—1. To provide a legal redress for every species of injury; 2. To provide a competent redress for all injuries which affect honour; 3. For the satisfaction of these vindictive desires with the least possible prejudice, there is only one expedient: it is that of showing indulgence to duelling. Let us recapitulate these different heads.
To provide a Legal Redress for every species of injury.
The vices and the virtues of the human race depend much upon the circumstances of society. Hospitality, as has been observed, is most practised where it is most necessary. It is the same with revenge. In the state of nature, the fear of private vengeance is the only restraint of brute force—the only security against the violence of the passions: it corresponds to the fear of punishment in a state of political society. Each step in the administration of justice tends to diminish the force of the vindictive appetites, and to prevent acts of private animosity.
The interest principally in view, in legal redress, is that of the party injured. But the offender himself finds his profit in this arrangement. Leave a man to avenge himself, and his vengeance knows no limits. Grant to him what you, in cool blood, consider as a sufficient satisfaction, and prohibit his seeking for more: he will choose rather to accept what you give him, without running any hazard, than expose himself to the judgment of the law, by endeavouring to take a greater satisfaction by himself. Here, then, is an accessory benefit resulting from care to provide judicial redress. Reprisals are prevented: covered by the buckler of justice, the transgressor, after his offence, finds himself in a state of comparative security under the protection of the law.
It is sufficiently evident, that the more completely legal redress is provided, the more the motive will be diminished which might excite the party injured to procure it for himself. When every pain which a man is liable to suffer from the conduct of another, shall be followed immediately by what shall, in his eyes, be an equivalent pleasure, the irascible appetite will no longer exist. The supposition is evidently an exaggerated one; but, exaggerated as it is, it includes enough of truth to show, that each amelioration which is made in this branch of justice, tends to diminish the force of the vindictive passions.
Hume has observed, in speaking of the barbarous times of English history, that the great difficulty was to engage the injured party to receive satisfaction; and that the laws which related to satisfaction were as much intended to limit his resentment as to procure for him an enjoyment.
In addition to this, institute a legal punishment for an injury: you provide a place for generosity—you create a virtue. To pardon an injury, when the law offers a satisfaction, is to exercise a species of superiority over an adversary, by the obligation which results from it. No one can attribute the pardon to weakness: the motive is above suspicion.
To provide a competent Redress for injuries which attack the Point of Honour in particular.
This class of injuries demands so much the more particular attention, in as much as they have a more marked tendency to excite the vindictive passions. Enough has been already said upon this subject in Part I. Ch. xiv. to render a return to it unnecessary.
In this respect, the French jurisprudence has long been superior to all others.
English jurisprudence is eminently defective upon this point. It knows nothing of honour—it has no means of estimating a corporal insult but by the size of the wound. It does not suppose that there can be any other evil in the loss of reputation, than the loss of the money which may be the consequence of it. It considers money as a remedy for all evils—a palliation for all affronts. He who does not possess it, possesses nothing: he who possesses it, can want for nothing. It knows only pecuniary reparation. But the present generation ought not to be reproached with the rudeness of the ages of barbarism. These laws were established when sentiments of honour had not been developed. Questions of honour are now decided by the tribunal of public opinion, and its decrees are pronounced with a power altogether peculiar.
However, it cannot be doubted but that the silence of the law has had a bad effect. An Englishman cannot enter France without observing how much more the feeling of honour, and the contempt of money, descends, so to speak, among the inferior classes in France, than in England. This difference is especially remarkable in the army. The sentiment of glory—the pride of disinterestedness—are everywhere discovered among the common soldiers; and they would consider a noble action as tarnished by estimating its value in money: an honorary sword is the first of recompenses.
To show indulgence to Duelling
If the individual offended will not be contented with the satisfaction offered by the laws, it is proper to be indulgent to duelling. Poisoning and assassination are hardly heard of, where duelling is established. The light evil which results from it, is like a premium of assurance, whereby a nation guarantees itself against the greater evil of other offences. Duelling is a preservative of politeness and peace: the fear of being obliged to give or receive a challenge, destroys quarrels in their germ. The Greeks and Romans, it will be said, were acquainted with glory, and knew nothing of duelling. So much the worse for them: their sentiment of glory was not opposed either to poisoning or assassination. Among the political dissensions of the Athenians, one half of the citizens plotted the destruction of the other. Compare what passes in England and Ireland with the dissensions of Greece and Rome. Clodius and Milo, according to our customs, would have fought a duel: according to Roman customs, they reciprocally sought to assassinate each other, and he who killed his adversary only forestalled him.
In the island of Malta, duelling had become a species of madness, and, so to speak, of civil war. One of the Grand Masters made such severe laws against it, and executed them so rigorously, that duelling ceased: but it was to give place to a crime which unites cowardice with cruelty. Assassination, before unknown among the knights, became so common, that they soon regretted the loss of duelling, and at last expressly tolerated it, in a certain place, and at certain hours. The result was such as had been expected. So soon as a course of honourable revenge was opened, the clandestine methods were rendered infamous.
Duels are less common in Italy than in France and England: poisoning and assassinations are much more so.
In France, the laws against duelling were severe; but methods were found for eluding them. Upon an agreement to fight, a pretended quarrel was got up as a kind of prelude.
In England, the law confounds duelling and murder: but the juries do not confound them; they pardon it, or, what amounts to the same thing, find it manslaughter (involuntary homicide.) The people are better guided by their good sense, than the jurists have been by their science. Would it not be better to place the remedy among the laws, rather than in their subversion?
Section II. Let us turn to indigence: we have here to consider the interests of the poor themselves and those of the community.
A man deprived of the means of subsistence, is urged, by the most irresistible motives, to commit every crime by which he may provide for his wants. Where this stimulus exists, it is useless to combat it by the fear of punishment, because there is scarcely one punishment which can be greater, and no one, which, by reason of its uncertainty and its distance, can appear so great, as the dying of hunger. The effects of indigence can therefore only be guarded against, by providing necessaries for those who have them not.
The indigent may be distinguished in this respect, into four classes: 1. The industrious poor; those who are willing to work that they may live. 2. Idle mendicants; those who prefer rather to depend upon the precarious charity of passengers for subsistence, than to labour for their subsistence. 3. Suspected persons; those who, having been arrested on account of a crime, and set at liberty because of the insufficiency of proof, have remained with a stain upon their reputation, which hinders their obtaining employment. 4. Criminals who have been confined for a time in prison, and have been set at liberty. These different classes ought not to be treated in the same manner, and in establishments for the poor, particular care ought to be taken to separate the suspected from the innocent classes. “One scabby sheep,” says the proverb, “infects the flock.”
Every thing which the poor can be made to earn by their labour, is not only a profit for the community, but also for themselves. Their time ought to be occupied as their lives ought to be sustained. It is humanity which prescribes the finding occupations for the deaf, the blind, the dumb, the lame, the impotent. The wages of idleness are never so sweet as the reward of toil.
If a man have been apprehended and accused of a crime of indigence, even when he is acquitted, he ought to be required to render an account of his means of subsistence at least for the last six months. If he be honest, this inquiry can do him no harm; if he be not, it is proper to act accordingly.
Females, especially those a little above ordinary labour, have a peculiar disadvantage in finding occupation. Men having more activity, more liberty, and perhaps more dexterity, even take possession of those labours which belong more properly to the other sex, and which are almost indecent in the hands of men. Men are found selling toys for children, keeping shops for fashions, &c.; making shoes, stays, and dresses for women. Men are found filling the function of midwives. I have often doubted whether the injustice of the custom might not be redressed by the law, and whether women ought not to be put in possession of these means of subsistence, to the exclusion of men. It would be an indirect method of obviating prostitution, by providing females with suitable employments.
The practice of employing men as midwives, which has excited such lively reclamations, is not yet* generally adopted, except among the higher classes, where anxiety is greatest, and in those cases when the danger appears extreme. It would therefore be dangerous to establish a legal exclusion of men, at least until female pupils had been educated, capable of replacing them.
With respect to the treatment of the poor, no universal measure can be proposed: it must be determined by local and national circumstances. In Scotland, with the exception of some great towns, the government does not interfere with the care of the poor. In England, the tax raised for their support in 1831, exceeded £8,000,000. Their condition is, however, better in Scotland than in England: the object is better accomplished by the manners of the people, than by the laws. Notwithstanding the inconveniences of the English system, it cannot be given up all at once, otherwise the one half of the poor would perish, before the necessary habits of benevolence and frugality have taken root. In Scotland, the influence of the clergy is highly salutary: having only a moderate salary and no tithes, the clergymen are known and respected by their parishioners. In England, the clergy being rich and having tithes, the clergyman is often quarrelling with his flock, and knows little of them.
In Scotland, in Ireland, in France, the poor are moderate in their wants. At Naples, the climate saves the expense of fuel, of lodging, and almost of clothing. In the East Indies, clothing is hardly necessary, except for decency. In Scotland, domestic economy is good in all respects, except neatness. In Holland, it is also as good as it can be in every respect. In England, on the one hand, wants are greater than anywhere else, and economy is perhaps upon a worse footing than in any country in the world.
The most certain method of providing for the poor is, not to wait for indigence, but to prevent it. The greatest service which can be rendered to the working classes, is the institution of savings banks, in which, by the attractions of security and profit, the poor may be disposed to place their little savings.
Section III. We come now to that class of desires for which no neutral name is found,—no name which does not present some accessory idea of praise or of blame, but especially of blame; the reason of which is easily discovered. Asceticism has sought to brand and criminalize the desires to which nature has confided the perpetuity of the species. Poetry has protested against these usurpations, and has embellished the images of voluptousness and love. Its object is praiseworthy, when good manners and decency are respected. We may observe, however, that these inclinations have sufficient natural strength, and do not require the excitements of exaggerated and seductive representations.
Since this desire is satisfied in marriage, not only without prejudice to society, but in an advantageous manner, the first object of the legislator, in this respect, should be to facilitate marriage; that is to say, to place no obstacle which is not absolutely necessary in its way.
With the same view, he ought to authorize divorces under suitable restrictions. In place of a marriage broken in point of fact, and subsisting only in appearance, divorce naturally leads to a real marriage. Separations permitted in a country where marriages are indissoluble, have the inconvenience either of condemning the individuals to the privation of celibacy, or leading them to form illicit connexions.
But if we would speak upon this delicate subject honestly, and with a freedom more honest than an hypocritical reserve, we shall acknowledge at once, that there is an age at which man attains the developement of his powers, before his mind is ripe for the conduct of business and the government of a family. This is especially true with regard to the superior classes of society. Among the poor, necessary labour diverts the desires from love, and retards their developement. A frugal nourishment and simple kind of life maintains for a longer period a calm among the feelings and the imagination. Besides, the poor are unable to purchase the favours of the other sex, except by the sacrifice of liberty.
Independently of the youth who are not yet marriageable in a moral respect, how many men are there who are unable to undertake the charge of a wife and family! on the one hand, domestic servants, soldiers, sailors, living in a state of dependence, and often having no fixed residence; on the other hand, men of a more elevated rank, who expect a fortune or an establishment. Here is a very numerous class deprived of marriage, and reduced to a forced celibacy.
The first method which presents itself for mitigating this evil, would be the rendering legitimate contracts for a limited time. This method has great inconveniences; still concubinage really exists in all societies in which there is considerable disproportion in fortunes. In prohibiting these arrangements, they are not prevented; they are only rendered criminal and degraded. Those who dare to acknowledge them, proclaim their contempt for manners and laws; those who conceal them are exposed to suffer from the moral sanction, in proportion to their sensibility.
In the ordinary course of thinking, the idea of virtue is associated with this contract when its duration is indefinite, and the idea of vice when it is limited for a time. Legislators have followed this opinion: prohibition against making the contract for a year—permission to make it for life;—the same action, criminal in the first place, will be innocent in the other. What can be said for this difference? The duration of the engagement?—can it change black into white?
But if marriage for a limited time is innocent in itself, it does not follow that it is so honourable for the woman who contracts it: she can never obtain the same respect as a wife for life. The first idea which presents itself with respect to her is, “If this woman were of equal value with others, she would have obtained the same condition as others: this precarious arrangement is a sign of inferiority, either in her condition or in her merit.”
What, then, would be the advantage resulting from this kind of contract? The law which now forbids it would not be continually broken and despised. It would also protect the female, who lend herself to this arrangement, from a humiliation which, after having degraded her in her own eyes, almost always leads her to the lowest degree of debauchery. It would, in fine, prove the birth of the children, and secure to them paternal care. In Germany, marriages known under the name of left-handed marriages, were generally established. The object was to conciliate domestic happiness with family pride. The woman thus acquired some of the privileges of a wife, but neither she nor her children took the name nor the rank of her husband. In the code of Frederick they were prohibited; the king still reserving to himself the right to grant particular dispensations.
Whilst an idea so contrary to received opinions is proposed, it may be observed that it is not proposed as a good, but as an amelioration of an evil which exists. Where manners are sufficiently simple, where fortunes are sufficiently equal not to require this expedient, it would be absurd to introduce it. It is not proposed as a rule, but as a remedy.
Under a similar apology, a more weighty disorder may be spoken of. It is an evil which particularly exists in great towns, which also arises from the inequality of fortunes, and the concurrence of all the causes which increase celibacy. This evil is prostitution.
There are some countries where the laws tolerate it; there are others, as in England, where it is strictly forbidden: but though forbidden, it is as commonly and as publicly carried on as can be imagined, because the government dares not to punish it, and the public would not approve of this employment of authority. Prostitution, prohibited as it is, is not less extended than it there were no law; but it is much more mischievous.
The infamy of prostitution is not solely the work of the laws. There is always a degree of shame attached to this condition, even when the political sanction remains neuter. The condition of courtezans is a condition of dependence and servitude: their resources are always precarious; they are always on the borders of indigence and hunger. Their name connects them with those evils which afflict the imagination. They are justly considered as the causes of those disorders of which they are, at the same time, the victims. There is no need to mention the sentiments with which they are regarded by modest females: the most virtuous pity them; all agree in despising them. No one seeks to defend or to uphold them. It is therefore natural that they should be crushed by the weight of opinion. They have themselves never been able to form a society which could counterbalance this public contempt: when they shall wish to form it, they will be unable. If the interest of a common defence should unite them, rivalry and want would separate them. The person, as well as the name, of a prostitute, is an object of hatred and disdain to all her fellows. It is, perhaps, the only condition openly despised by the persons who publicly profess it. Self-love, by the most striking inconsistency, seeks to blind itself to its own misfortune: it appears to forget what is is, or to make an exception for itself, by severely treating its companions.
Kept mistresses very nearly partake the same infamy with open prostitutes. The reason for it is simple: they are not yet in that class, but they seem always ready to fall into it. However, the longer the same person has lived with the same man, the more she is removed from the degraded condition—the more she approaches to the condition of a modest woman. The greater the duration of the connexion, the more difficult it appears to be broken; the greater the hope it presents of perpetuity.
What is the result of these observations? It is, that the remedy, so far as a remedy can exist, is in the evil itself. The more this condition is naturally the object of contempt, the less necessary is it to add any legal disgrace. It carries with it its natural punishment—punishment which is already too heavy, when every thing which should lead to commiseration in favour of this unfortunate class has been considered—the victims of social inequality, and always so near to despair. How few of these females have embraced this condition, from choice, and knowing the consequences! How few would continue in it, if they could quit it—if they could leave this circle of ignominy and misfortune—if they were not repulsed from every career which they may try to open for themselves! How many have fallen into it from the error of a moment—from the inexperience of youth—from the corruption of their parents—by the crime of the seducer—from inexorable severity—directed against a first fault—almost all from neglect and misery. If opinion be unjust and tyrannical, ought the legislator to exasperate this injustice? ought he to employ this instrument of tyranny?
Besides, what is the effect of these laws? It is to increase the corruption of which these unhappy women are accused;—it is to precipitate them into intemperance and excess in the use of intoxicating liquors, that they may find in them a momentary oblivion of their misery;—it is to render them insensible to the restraint of shame, by directing against their misfortune that opprobrium which ought to be reserved for real crimes;—it is, in fine, to prevent the precautions which might soften the inconveniences of this disorder, if it were tolerated. All these evils, which the laws lavish without care, are a foolish price which the laws pay for an imaginary good, which is not, and can never be obtained.
The Empress-queen of Hungary undertook to extirpate this evil, and laboured with a perseverance praiseworthy in its principles, and deserving of a better cause. What followed? Corruption extended itself in public and private life: the conjugal bed was violated; the seat of justice was corrupted; adultery gained all that was lost by prostitution: the magistrates made a trade of their connivance; fraud, prevarication, oppression, extortion, spread themselves in the country, and the evil which it was sought to destroy, being obliged to hide itself, only became more dangerous.
Among the Greeks, this profession was tolerated, sometimes even encouraged; but it was not allowed to parents to traffic in the honour of their daughters. Among the Romans, in what are called the best times of their republic, the laws were silent upon the subject. The saying of Cato, to the young man whom he met on leaving a place of ill name is a proof of it: Cato was not a man to encourage the violation of the laws.
In the metropolis of the christian world, this vocation is openly exercised.* This was without doubt one of the reasons for the excessive rigour of the protestants.
At Venice, the profession of a courtezan was publicly authorized under the republic.
In the capital of Holland, houses of this nature receive a licence from the magistrate.
Retif de la Bretonne published an ingenious work, entitled Pornographe, in which he proposed to government to found an institution, subject to regulations, for the reception and government of prostitutes.
The toleration of this evil is useful in some respects in great towns: its prohibition is useless; it has even particular inconveniences.
The hospitals established in London for repentant girls are good institutions: but those who regard prostitution with absolute rigour are not consistent with themselves, when they approve of these charitable foundations. If they reform some, they encourage others. The hospital at Chelsea, is it not an encouragement for soldiers? and that at Greenwich, for sailors?
It would be desirable to institute annuities, commencing at a certain age: these annuities should be adapted to this sad condition, in which the period of harvest is necessarily short, but in which there are sometimes considerable profits.
The spirit of economy springs up with little encouragement, and always goes on increasing a sum too small to offer any resource, as actual capital may yield a considerable annuity at a distant period.
Upon points of morality, where there are contested questions, it is well to consult the laws of different nations. This is to the mind a species of travelling. In the course of this exercise, whilst the usages of other nations pass in review before us, we become disengaged from local and national prejudices.
To say that government ought not to reward crimes—that it ought not to weaken the moral sanction, or the religious sanction, in those cases in which they are useful, is a maxim which appears too simple to require proof. It is, however, often forgotten: striking examples of this forgetfulness will be given; but the more striking they are, the less will it be necessary to develope them: it will be more desirable to dwell upon those cases in which this maxim is violated in a less evident manner.
Unjust Detention of Property, &c.
If the law suffer a man who unjustly detains the property of another to make a profit by delaying the payment, it becomes an accomplice in the wrong. The cases in which the English law is defective in this respect are innumerable. In many cases, a debtor has only to refuse payment till he die, in order to free himself from the principal of his debt: in many others, he may by his delays free himself from the interest: in all, he may retain the capital, and obtain, so to speak, a forced loan at the ordinary rate of interest.
To put a stop to this source of iniquity, it would be sufficient to establish—1st, That in matters of civil responsibility with regard to lands, the death of one or other of the parties should make no alteration; 2d, That interest should be payable from the commencement of the obligation; 3d, That the obligation should commence, not at the ascertaining the amount of the damage, but at the time of the damage itself; 4th, That the interest arising from this obligation exceed the ordinary rate. These methods are extremely simple: how does it happen that they remain yet to be proposed? Those who thus inquire, know little of the effect of custom, indolence, indifference to the public welfare, and the bigotry of the law, without reckoning on the effect of personal interest and party spirit.
When a man insures his goods against any calamity, if the value for which he insure exceed the value of the effects insured, he has in a certain sense an interest in producing the event insured against—to set fire to his house, if he be insured against fire—to sink his vessel, if he be insured against sea risks. The law which authorizes these contracts may therefore be considered as furnishing a motive to the commission of these crimes. Does it follow that it ought to refuse them its sanction? By no means; but only that it ought to direct and suggest to the assurers the precautions most likely to prevent these abuses, without being so restrictive as to hinder their operations. The taking preliminary informations—requiring certificates of the real value of the goods insured—requiring, in cases of accident, the testimony of certain respectable persons, as to the character and probity of the party who has been insured—submitting the effects insured to examination, in every state of the cause, when the assurer has any doubts, &c. Such are a part of the measures to be taken.
If it be permitted to insure the vessels of enemies, a state may be exposed to two dangers:—1st, The commerce of an inimical nation, which is one of the sources of its power, is facilitated. 2d, The assurer, in order to guarantee himself against a loss, may give secret intelligence to the enemy as to the departure of the armaments and cruisers of his own nation. With respect to the first inconvenience, it is only an evil in case the enemy could not insure his vessels elsewhere, or that he could not employ his capital with the same profit in any other branch of trade. With respect to the second inconvenience, it is absolutely nothing, unless the assurer be able to give to the enemy information that he could not obtain in any other manner for money, and that the facility of giving this information was so great as to lead him to disregard the infamy and the risk of treason. Such is the state of things as to its inconveniences.
On the other hand, its advantages for the nation assuring is certain. In this species of traffic, it has been found that the balance of profit in a given time is on the side of the assurers; that is to say, in taking all the losses and gains together, he receives more in premiums than he pays in reimbursements. It is then a lucrative branch of commerce, and may be considered as a tax levied upon the enemy.
In making a bargain with architects and superintendents, it is common to give them a per-centage upon the amount of the expense. This mode of payment, which appears sufficiently natural, opens a door for peculation—for peculation of the most destructive kind, in which, in order that the peculator may make a small profit, it is necessary that his employer should suffer a large loss.
This danger is at its highest degree in public works, in which no individual has a particular interest in preventing profusion, and each may find his interest in conniving at it.
One of the means of remedying it is to fix a sum in accordance with an estimate made, and to say to the superintendent—Thus far you shall have so much per cent.; above this you shall have nothing. If you reduce the expense below the estimate, you shall have your profit as upon the whole sum.
Abuse of the Confidence of the Sovereign.
If a statesman who has the power of contributing to war or to peace, possess an employment of which the emoluments are larger in time of war than in time of peace, an interest is given to him to make use of his power in order to prolong or create a state of war. If his emoluments increase in proportion to the expense, an interest is given him to conduct such war with the greatest possible prodigality. The inverse reason would be much better.
Offences of every kind.
When a man lays a wager upon the affirmative side regarding a future event, he has an interest proportioned to the value of the wager in the happening of the event. If the event be among the number of those prohibited by the laws, he has an interest in committing an offence. He is even stimulated by a double force, one part of which possesses the nature of reward, the other possesses the nature of punishment: the reward, what he will receive if the event happen; the punishment, what he will have to pay in the contrary case. It is as if he were suborned by the promise of a sum of money on the one hand, and that he had made an engagement under an explicit punishment on the other.*
If, then, all wagers, without distinction, were recognised as valid without restriction, venality of every kind would receive the sanction of the laws, and liberty would be given to all the world to enrol accomplices for every kind of crime. On the other hand, if all wagers without restriction were annulled, the insurances so advantageous to commerce, so helpful against a multitude of calamities, would have no place; for these insurances are only a species of wager.
The desirable medium seems to be this:—In all cases when the wager may become the instrument of mischief without answering any useful object, prohibit it absolutely: in those cases in which, as an insurance, it may become a means of help, admit it; but leave a discretion to the judge to make the necessary exceptions, when he finds that it has been made a cloak for subornation.
Reflective Offences, or Offences against One’s self.
When a lucrative place has been conferred upon a man, the possession of which depends upon his submission to certain rules of conduct, if these rules are such as to be hurtful to himself, without producing any benefit to any other person, the creation of such an office has the effect of a law diametrically opposed to the principle of utility—of a law which tends to augment the sum of pains, and to diminish that of pleasures.
Such institutions are monasteries in catholic countries; such also are the remains of the monastic spirit in the English universities.
But it may be said, since no one engages in such a condition without his own consent, the evil is only imaginary. This answer would be good, if the obligation ceased so soon as the consent ceased: the misfortune is, that the consent is the work of a moment, and the obligation is perpetual. There is another case, indeed, in which a transitory consent is admitted, as the ground of durable condition: it is that of military enlistment. But the utility of the rule, or, to speak more correctly, its necessity, is its justification. The state could not exist without its army; and the army could not exist, if all who compose it were at liberty to leave it whenever they pleased.
This rule principally regards the public servants. The more they have to lose in respect of fortune or honours, the more may be taken from them. Their salaries are a source of responsibility. In case of malversation, the loss of this salary is a punishment from which they cannot escape, even when they can escape from all others. This method is especially suitable in those employments which give the management of the public property. If you cannot otherwise secure the probity of a cashier, make the amount of his appointments a little exceed the interest of the greatest sum which is entrusted to him. This excess of salary may be considered as a premium paid for an insurance against his dishonesty: he has more to lose by becoming a rogue than by remaining an honest man.
Birth, honours, family connexions, religion, may also become so many sources of responsibility—so many pledges for the good conduct of individuals. There have been cases in which legislators would not trust bachelors: they have regarded a wife and children as hostages given by the citizen to his country.
The preceding chapter referred to precautions against the improbity of an individual: the present chapter treats of the means of preserving the probity of the honest man, by not exposing him to the overpowering influence of seductive motives.
We shall first speak of salaries. Money, according to the manner in which it is employed, may serve either as a poison or an antidote.
Without regard to the happiness of individuals, the interest of the public service requires that public officers should be raised above want, in all employments which present the means of acquiring money in a prejudicial manner. In Russia, the greatest abuses, in all the departments of government, have been found to arise from the insufficiency of salaries. When men, oppressed by want, become avaricious extortioners and thieves, the blame ought to be divided between them and the government which has spread the snare for their probity. Placed between the necessity of living, and the impossibility of living honestly, they are led to consider extortion as a lawful supplement, tacitly authorized by those who employ them.
Will the supply of what is physically nenecessary suffice to place them above want? No: if there be not a certain proportion between the dignity with which a man is invested and his means of sustaining it, he is in a state of suffering and privation, because be cannot comply with what is expected of him; and he is compelled to remain upon the verge of the class with whom he is called to associate. In a word, wants increase with honours, and relative necessity changes with condition. Place a man in an elevated rank, without giving him the means of maintaining it, what will be the result? His dignity will furnish a motive for evil-doing, and his power will furnish him with the means of evil-doing.
Charles II., when restricted by the economy of his parliament, sold himself to Louis XIV., who offered to supply his profusion. The hope of relieving the embarrassments in which he was plunged, led him, like an individual overwhelmed with debts, to the employment of criminal resources. This miserable economy cost the English two wars, and a more disastrous peace. It is true, that it is difficult to discover what sum would have operated as an antiseptic with a prince thus corrupted; but this example is sufficient to show, that the civil list of the kings of England, which appears exorbitant in the eyes of common calculators, is in the eyes of a statesman a measure of general security. Besides, from the intimate connexion which exists between wealth and power, every thing which increases the splendour of dignity increases its power; and royal pomp may, in this respect, be compared to those ornaments of architecture, which serve, at the same time, to support and bind the building together.
This great rule of diminishing, as much as possible, sensibility to temptation, has been singularly violated in the Catholic Church. Imposing celibacy upon the priests, and confiding to them the most delicate functions—the examination of consciences, and the direction of families—was placing them in a trying situation, between the unhappiness of observing a useless law, and the opprobrium of its violation.
When Gregory VII. directed, in a council at Rome, that the married clergy, or those who had concubines, should not say mass, he excited their cries of indignation: they accused him of heresy, saying, according to the historian of the times, “If he persist, we would rather renounce the priesthood than our wives: he must seek for angels to govern the churches.”—(Histoire de France par l’Abbe Millot, tom i. Regne de Henri I.)
In our days it has been proposed to allow the French priests to marry; but there were no men found among them, they were all angels.
It is the real punishment which produces all the evil: it is the apparent punishment which produces all the good. It is proper to diminish the first, and to augment the second, as much as possible. Humanity consists in the appearance of cruelty.
Speak to the eyes, if you would move the heart. This precept is as old as the age of Horace, and the experience which dictated it, as old as the first man:—every one has felt its force and endeavoured to profit by it; the actor, the rogue, the orator, the priest, all know its prevailing power. Render, therefore, your punishments exemplary; give to the ceremonies which accompany them a mournful pomp; call to your assistance all the imitative arts; and let the representation of these important operations be among the first objects which strike the eyes of childhood.
A scaffold painted black, the livery of grief—the officers of justice dressed in crape—the executioner covered with a mask, which would serve at once to augment the terror of his appearance, and to shield him from ill-founded indignation—emblems of his crime placed above the head of the criminal, to the end that the witnesses of his sufferings may know for what crimes he undergoes them: these might form a part of the principal decorations of these legal tragedies; whilst all the actors in this terrible drama might move in solemn procession—serious and religious music preparing the hearts of the spectators for the important lesson they were about to receive. The judges need not consider it beneath their dignity to preside over this public scene, and its sombre dignity should be consecrated by the presence of the ministers of religion.
Instruction should not be rejected when it is offered, even by the most cruel enemy. The Vehemic Council, the Inquisition, the Star-Chamber, may all be consulted, all their methods examined and compared. A diamond is worth preserving, though covered with mud. If assassins employ pistols for the commission of murder, is this a reason why I should not use them in self-defence?
The emblematic dresses of the inquisition might be usefully employed in criminal justice: an incendiary under his cloak, painted with flames, would present to all eyes the image of his crime, and the indignation of the spectator would be fixed upon the idea of his crime.
A system of punishments, accompanied with emblems appropriated as much as possible to each crime, would possess an additional advantage: it would furnish allusions for poetry,* for eloquence, for dramatic authors, for ordinary conversation. The ideas derived from them would, so to speak, be reverberated by a thousand objects, and disseminated on all sides.
The Catholic priests have known how to derive from this source the greatest assistance for augmenting the efficacy of their religious opinions. I recollect having seen, at Gravelines, a striking exhibition: a priest showed to the people a picture, in which was represented a miserable multitude in the midst of flames, and one of them was making a sign that he wanted a drop of water, by showing his burning tongue. It was a day appointed for public prayers, for drawing souls out of purgatory. It is evident, that such an exhibition would tend less to inspire a horror for crimes, than a horror of the poverty which did not allow him to be redeemed. The necessary consequence is, that money for the purchase of masses must be obtained at any rate; for where every thing is to be expiated by money, misery alone is the greatest of all crimes, the only one which has no resource.*
The ancients have not been more happy than the moderns in the choice of punishments: no design, no intention, no natural connexion between punishments and crimes, can be discovered; every thing is the work of caprice.
I shall not dwell upon a point which has for a long time been familiar to all who are capable of reflection. The modes of punishment in England form a perfect contrast with every thing which inspires respect: A capital execution has no solemnity. The pillory is sometimes a scene of buffoonery; sometimes a scene of popular cruelty—a game of chance, in which the sufferer is exposed to the caprices of the multitude and the accidents of the day. The severity of a whipping depends upon the money given to the executioner. Burning in the hand, according as the criminal and the executioner can agree, is performed either with a cold or a red-hot iron; and if it be with a hot iron, it is only a slice of ham which is burnt: to complete the farce, the criminal screams, whilst it is only the fat which smokes and burns, and the knowing spectators only laugh at this parody of justice.
But it may be said, that every question has two sides—that these real representations, these terrible scenes of penal justice, will spread dismay among the people, and make dangerous impressions. I do not believe it. If they present to dishonest persons the idea of danger, they offer only an idea of security to those who are honest. The threat of terrible and eternal punishment for undefined and indefinite crimes, working upon an active imagination, may have sometimes produced madness. But here no undefined threatenings are supposed: on the contrary, here is a manifest crime proved—a crime which no one need commit; and consequently the dread of punishment can never rise to a dangerous height. It would, however, always be desirable to guard against producing false and hateful ideas.
In the first edition of the Code Theresa, the portrait of the empress was surrounded with medallions, representing gibbets, racks, fetters, and other instruments of punishment. What a blunder, to present the image of the sovereign surrounded by these hideous emblems! This scandalous frontispiece was suppressed; but the print, representing all the instruments of torture, was allowed to remain. A sad picture, which could not be considered without each one saying to himself, Such are the evils to which I am exposed, although innocent! But if an abridgment of the penal code were accompanied with prints representing the characteristic punishments set apart for each crime, it would form an imposing commentary—a sensible and speaking image of the law. Each one might say, That is what I shall suffer, if I become guilty. It is thus that, in matters of legislation, a slight difference sometimes separates what is good from what is bad.
In penal matters, the judge must be acquainted with two things before he can exercise his office: the fact of the offence, and the person of the offender. These two things being known, his knowledge is complete. According to the difference of cases, obscurity spreads itself over these two points in different proportions. Sometimes it is greatest upon the first, sometimes upon the second. We shall treat, in the following articles, of what relates to the fact of the offence, and of the means by which its discovery may be facilitated.
Require written Title-Deeds.
It is only by writing, that evidence can be rendered permanent and authentic. Verbal transactions, at least when not of the simplest kind, are subject to interminable disputes. Litera scripta manet. Mahomet himself has recommended his followers to observe this precaution. It is almost the only passage of the Koran which has a grain of common sense. (Chapter of the Cow.)
Cause the Names of the Witnesses to be attested upon the head of Title-Deeds.
It is one thing to require that there should be witnesses to the execution of a deed: it is another point to require that their presence be notified, attested, enregistered at the head of the deed. A third circumstance is, to add to it those circumstances by which the witnesses, if necessary, may be easily found.
In the attestation of deeds, it would be useful to observe the following precautions:—
1. Prefer a great number of witnesses to a small number. This diminishes the danger of prevarication, and increases the chance of finding them, if necessary. 2. Prefer married to single persons; heads of families to servants; persons of public character to individuals less distinguished; young men in the flower of their age to old and infirm persons; persons who are known, to those who are unknown. 3. When a deed is composed of many sheets or pieces, each piece ought to be signed by the witnesses. If there be corrections or erasures, a list of these should be made and attested; the lines ought to be counted, and the number in each page indicated. 4. Each witness should add to his Christian and surname, if it be required, his quality, his residence, his age, his condition, whether single or married. 5. The time and place of the execution of the deed should be minutely specified; the time not only by the day, the month, the year, but also by the hour; the place by the district, the parish, even by the house, and by the name of him who occupies it at the time. This circumstance is an excellent preservative against forgery. A man will fear to embark in such an enterprise, when it is necessary to be acquainted with so many details before he affixes a supposititious date to a deed; and if he do attempt it, it will be more easily discovered. 6. Numbers ought to be written in words at length, especially dates and sums; except in matters of account, in which case it is sufficient to state the total in words at length; except also when the same date or the same sum frequently recurs in the same deed. The reason of this precaution is, that figures, if they are not very carefully written, are liable to be taken the one for the other; and besides that, they are easily altered, and the slightest alteration may have considerable effects: 100 is easily converted into 1000. 7. The forms to be observed in the execution of a deed ought to be printed upon the margin of the sheets of paper or parchment on which it is written.
Ought these forms to be left to the discretion of individuals as a means of security required by prudence, or ought they to be rendered obligatory? Some ought to be made obligatory; others ought not. As to those which ought to be made obligatory, it will be proper to allow the judges latitude, that they may distinguish the cases in which it was not possible to attend to them. It may be that a deed has been executed in a place where the prescribed paper could not be obtained; where a sufficient number of witnesses could not be found, &c. The deed might be provisionally declared valid, until it had been possible to attend to the forms required.
Greater latitude ought to be allowed in wills, than in deeds between living parties. Death waits neither for lawyers nor witnesses, and men are accustomed to defer making them to a time when they have neither leisure nor time to correct and review. On the other hand, these sorts of deeds are those which require the most precaution, because they are most subject to imposture. In the case of a deed between living parties, the party to whom it may be wished to attribute an engagement may chance to be living to contradict it. In the case of a will, this chance no longer exists.
It would require many details to point out the points to be established and the exceptions to be made. I only observe, that great latitude must be left; that no formality can be found so simple, that its omission ought to render a deed absolutely invalid.
When such instructions as these shall have been published by government, even without being rendered necessary, every body will seek to observe them, because each one will seek, in a deed honestly executed, to obtain for himself all possible security. The omission of these forms, therefore, would form a strong ground of suspicion of fraud, unless such omission could clearly be attributed to the ignorance of the parties, or to circumstances which rendered such omission unavoidable.
Institute Registers for the Preservation of Titles.
Why ought deeds to be registered? What deeds ought to be registered? Ought the registers to be secret or public? Ought registration to be optional, or ought its omission to be liable to punishment?
Registers would be useful as guards—1st, against the fabrication of forged deeds; 2d, against forgery by falsification; 3d, against accidents—the loss or destruction of the original; 4th, against double alienation of the same property to different persons.
For the first and last of these objects, a simple memorial would be sufficient; for the second, an exact copy would be required; for the third, an extract would be sufficient, but a copy would be better.
Against forgery by fabrication, registration would only be useful if it were obligatory; nullity in cases of omission, with latitude for accidental cases. The advantage which would result is, that after the period for registration was expired, the fabrication of a deed which, according to its apparent date, ought to be registered, would fail of itself. The period in which a fraud of this kind could be committed with probability of success would be limited to a short space, and that so near a time to that of the supposed deed, that the proofs of fraud could scarcely be wanting.
It would also be necessary that registration should be obligatory under pain of nullity, if it be designed to prevent double alienations, such as mortgages or marriage contracts. Without this obligatory clause, registration would scarcely take place, because neither party would have any interest in it. He who alienates, has even a contrary interest: an honest man may dislike to have it known that he has sold or mortgaged his property; a rogue would desire the power of receiving its value twice over.
Wills are the kind of deeds most liable to be fabricated. The most certain protection against a fraud of this nature is to require their registration, under pain of nullity, during the life of the testator. It may be objected, that this would make him dependent on the mercy of those who surround him in his last moments, since he would no longer be able to reward or punish them; but this inconvenience might be obviated by allowing a testator to dispose of a tenth of his property by a codicil.
What deeds ought to be registered? All those in which a third person is interested, and whose importance is sufficiently great to justify this precaution.
Of what deeds ought the registration to be secret? and of what public?
Deeds between living persons, in which third persons are interested—mortgages, marriage-contracts, ought to be public. Wills, during the life of the testator, ought to be inviolably secret. Promissory deeds, apprentice indentures, marriage-contracts which do not bind landed property, might be kept secret, reserving the right of communicating them to persons who could present a special title to examine them.
The office ought then to be divided into secret and public departments, free or obligatory. Free registrations would be frequent, if the charge were moderate. Prudence directs the preservation of copies against accidents; but where could copies be better preserved than in a depot of this kind?
The necessity of registering deeds by which territorial property is charged, by way of mortgage, would be a species of restraint upon prodigality. A man could hardly, without some degree of shame, borrow upon his possessions to spend in pleasure. This consideration, which ought to operate in favour of this measure, has been urged as an objection against it, and has prevented its establishment.
The jurisprudence of many countries has adopted more or less of this mode of registration. That of France appears to have hit the happy medium.
In England, the law varies. In Middlesex and the county of York, register-offices were established in the reign of Queen Anne, whose principal object has been to prevent double alienations; and the good effects have been such, that the value of land is higher in these two counties than elsewhere.
Ireland enjoys this benefit, but registration is left to the free choice of individuals. It has been established in Scotland: wills ought there to be registered before the death. In the county of Middlesex, registration is only obligatory after the death of the testator.
Method of preventing Forged Deeds.
There is one expedient which might have place as a species of registration. A particular kind of paper or parchment should be required for the deed in question: those who sold it by retail should be prohibited from selling it without indorsing the day and year of the sale, and the names of the seller and buyer. The distribution of this kind of paper might be limited to a certain number of persons, of whom a list should be kept. Their books being required to be correct registers, should, after their death, be deposited in an office. This precaution would hinder the fabrication of all kinds of deeds pretending to a distant date.
It would be a further restraint if the paper ought to be of the same date with the deed itself. The date of the paper might be marked in the paper itself, in the same manner as the maker’s name. In this case, no forged deed could be made without the concurrence of a paper-maker.
Institute Registers for Events which serve to establish Titles.
Much need not be said upon the evident necessity of proving births and burials. Prohibition to inter the dead, without the previous inspection of some officer of police, is a general precaution against assassination. It is singular, that, in England, marriages, instead of being by writing, were for a long time left to the simple notoriety of a transitory ceremony. The only reason which can be given for it, is the simplicity of this contract, which is the same for all, except in particular arrangements relative to fortunes.
Happily, under the reign of William III., these events, which serve as the foundation of so many titles, presented themselves as suitable objects for taxation; they were required to be registered. The tax has been suppressed, but the advantage remains.
Even at the present time, the security given to the rights which depend upon these events is neither so certain nor so universal as it ought to be. There exists only one copy: the register of each parish ought to be transcribed in a more general office. In the marriage-act under George II., the advantage of this regulation is refused to Quakers and Jews, either from intolerance or inadvertency.
Put the People on their guard against different Offences.
Give instructions with regard to the different poisonous substances, the methods of detecting them, and their antidotes. If such instructions were indiscriminately spread among the multitude, they might do more hurt than good. This is one of those cases in which knowledge is more dangerous than useful. The methods of employing poison are more certain than the means of cure. The suitable medium lies in limiting the circulation of these instructions to the class of persons who can make a good use of them, whilst their situation, their character, and their education, would be guarantees against their abuse. Such are the parochial clergy, and medical practitioners: with this view, the instructions might be in Latin, which these parties are reputed to understand.
But as to the knowledge of those poisons which present themselves without being sought, and which ignorance may innocently administer, this ought to be rendered as familiar as possible. There must be a strange deprivation in the character of a nation, if hemlock, which is so easily confounded with parsley, and verdigris, which so speedily collects in copper vessels when the tinning is worn off, were not more often administered by mistake than by design. In this case, there is more to be hoped for than feared from the communication of knowledge, how dangerous soever it may be.
Against False Weights and Measures.
Give instructions as to false weights, false measures, false standards of quality, and the methods of deception which may be used when just weights and measures are employed. To this head would be referred scales with unequal arms, measures with double bottoms, &c. Knowledge on these subjects cannot be too widely extended. Every shop should have such instructions openly exhibited, as a proof that there is no wish to deceive.
Against Frauds with respect to Money.
Give instructions showing how good may be distinguished from bad money. If a particular kind of false coin appear, government ought to give notice of this circumstance in a particular manner. At Vienna, the mint does not fail to notify the kinds of counterfeits it discovers; but the coinage is upon so good a footing, that attempts of this kind are rare.
Against Cheating at Play.
Give instructions with regard to false dice, as to methods of cheating in dealing cards, by making signs to associates, by having accomplices among the spectators, &c. These instructions might be suspended in all places of public resort, and presented in such a manner as to put youth upon its guard, and to exhibit vice as both ridiculous and hateful. It would be proper also to offer a reward to those who detect the artifices of sharpers, in proportion as they invent new schemes.
Against the Impostures of Beggars.
Some, though in perfect health, counterfeit sickness; others cause a slight wound to assume the most disgusting appearances; others relate false histories of shipwrecks and fires; others borrow or steal children, that they may employ them as instruments, of their trade. It would be proper to accompany the instructions respecting these artifices with an advertisement, for fear that the knowledge of so many impostures should harden the heart, and render it indifferent to real misery. In a country under a well regulated police, an individual who presents himself under so unfortunate an aspect ought neither to be neglected nor left to himself: the duty of the first person who meets him should be to consign him to the hands of public charity. Instructions of this kind would form homilies for the people, more amusing than controversial discourses.
6. Against Theft, Cheating, and other means of obtaining Money under false pretences.
Give instructions which should develope all the methods employed by thieves and cheats. There are many books upon this subject, of which the materials have been furnished by penitent malefactors, in the hopes of deserving pardon. These compilations are generally very bad, but useful extracts might be taken from them. One of the best is, The Discoveries and Revelations of Poulter, otherwise Baxter, which passed through sixteen editions in the space of twenty-six years. This shows how wide a circulation an authentic book of this kind, published and recommended by government, would have. The tone which might be given to these works would make them excellent lessons in morality, as well as books of amusement.*
Against Religious Impostures.
Give instructions with regard to crimes committed by means of superstitions, relating to the malice of spiritual agents. These crimes are too numerous; but they are a light matter, in comparison with the legal persecutions which have taken their rise in the same errors. There is scarcely a Christian nation which has not to reproach itself with bloody tragedies occasioned by a belief in sorcery.
The histories of the first class would furnish an instructive subject for homilies, which might be read in the churches; but there is no need to give a sad publicity to the second. The suffrages of so many respectable and upright judges, who have been the miserable dupes of this superstition, would rather serve to confirm the populace in their error, than to cure them.
The English statutes were the first which had the honour of expressly rejecting from the penal code the pretended crime of sorcery. In the Code Theresa, though compiled in 1773, it occupies a considerable space.
Publish the price of Merchandise, in opposition to Mercantile Extortion.
If the exaction of an exorbitant price cannot properly be treated as an offence, and subjected to punishment, it may at least be looked upon as an evil, which it would be advantageous to suppress, if it could be done without causing greater evils.
Direct punishments being inadmissible, indirect methods must be employed. Happily, this is a species of offence of which the evil is diminished, rather than increased, by the number of offenders. What should the law do? increase their number as much as possible. Is an article sold too dear? is the profit gained by it exorbitant? spread this information: the dealers in it will assemble from all quarters, and by the effect of their competition alone, will lower the price.
Usury may be ranked under the head of mercantile extortion. To lend money, is to sell present money for future money: the time of payment may be either determinate or indeterminate; dependent, or not, upon certain events; the amount returnable all at once, or by instalments, &c. Prohibit usury: by rendering the transaction secret, you increase the price.
Publish an Account of Official Rights.
Almost everywhere, certain rights are annexed to the services of government offices: these rights form part of the pay of the persons employed. As an artisan sells his manufacture, a public officer sells his labour as dear as possible. Competition, the facility of going to another market, retains this disposition within due bounds as respects ordinary labour; but by the establishment of an office, all competition is taken away; the right to sell this particular kind of service becomes a monopoly in the hands of the person employed.
Leave the price to the discretion of the seller, and there will be no other limits than those prescribed by the wants of the buyer. The rights of officers ought therefore to be exactly determined by law, otherwise the extortion which may take place, ought to be imputed to the negligence of the legislator, rather than the rapacity of the person employed.
Publish all Accounts in which the Nation is interested.
When accounts are rendered in a limited time, before a limited number of auditors, and these auditors, perhaps chosen or influenced by the accountant himself, and no one is afterwards called upon to controul them, the greatest errors may be passed without being perceived, or without being noticed; but when accounts are published, there can be no want of witnesses, nor commentators, nor judges.
Each item is examined. Was this article necessary? did it arise from want, or was it suggested for the purpose of creating expense? Is not the public more dearly served than individuals? has not a preference been given to a contractor at the public expense? Has not a secret advantage been given to a favourite? has nothing been granted to him upon false pretences? Have no manœuvres been practised to prevent competition? Is there nothing concealed in the accounts? There are a hundred questions of the same kind, upon which it is impossible to secure complete explanations, if accounts are not rendered public. In a particular committee, some may want integrity, others knowledge; a mind slow in its operations will pass over what it does not understand, for fear of discovering its inaptitude; a lively spirit will not trouble itself with details; each will leave to others the fatigue of examination. But every thing which is wanting in a small body, will be found in the assembled public: in this heterogeneous and discordant mass, the worst principles will lead to the desired end, as well as the best; envy, hatred, malice, will assume the mask of public spirit; and these passions, because they are more active and persevering, will scrutinize all the parties better, and make even a more scrupulous examination. Hence those who have no other restraint than the desire of human applause, will be retained in the discharge of their duty by the pride of integrity and the fear of shame.
In seeking for exceptions, I have only found two: the first regards the expenses of this publication; the other regards the nature of those services which ought to remain secret. It might be useless to publish the accounts of a small parish, because the books are accessible to all who are interested in their examination; and the publication of the sums destined to secret service, could only be thought of, under the pain of losing all the information you might otherwise obtain respecting the designs of your enemies.
Establish Standards of Quantity, Weights, and Measures.
Weights indicate the quantity of matter; measures, the quantity of space. Their utility consists—first, in satisfying each individual as to the quantity of any thing which he wants; secondly, in terminating disputes; thirdly, in preventing frauds.
To establish uniformity in the same state has been the object of many sovereigns. To find a common and universal measure for all people, has been the object of research with many philosophers, and latterly of the French Government—a service truly honourable, since there is hardly any thing more rare and noble, than to see a government labouring upon one of the essential bases of union among mankind.
Uniformity of weights and measures, under the same government, and among a people who, in other respects, have the same language, is a point upon which it would seem that there is no need of much reasoning to show its utility. A measure of which an individual does not know the contents, is useless. If the measures of two towns are not the same, either in name or quantity, the trade between the individuals cannot but be exposed to great mistakes or great difficulties. These two places, in this respect, are strangers one to another. If the nominal price of the goods measured be the same, and the measures are different, the real price is different: continual attention is requisite, and distrust mingles with the course of affairs; errors glide into honest transactions, and fraud hides itself under deceptive denominations.
For the introduction of uniformity, there are two methods:—The first, to make standards, which should have public authority; to send them into every district, and to forbid the use of every other: the second, to make standards, and leave to general convenience the case of their adoption. The first method has been employed in England; the second was practised with success by the Archduke Leopold, in Tuscany.
When a public standard has been provided, a punishment may be imposed upon those who make weights and measures not in conformity to the standards; and then all bargains, which have not been made according to these standards, might be declared null and void. But this last measure would hardly be necessary; the two former would be sufficient.
In different nations, the want of uniformity in this respect cannot produce so many mistakes—the difference of language alone, putting every one upon their guard. Much embarrassment, however, results from it to commerce; and fraud, favoured by mystery, may often avail itself of the ignorance of purchasers.
An inconvenience of less extent, but which is not less important, is felt in medicine. If the weights are not exactly the same, especially with regard to substances of which small quantities are important, the pharmacopœia of one country can with difficulty be employed in another, and may lead to fatal errors. It is also a considerable obstacle to the free communication of the sciences; and the same inconvenience is found in relation to those arts, in which success depends upon the most delicate proportions.
Establish Standards of Quality.
It would require many details to state all that government would have to do, in order to establish the most suitable criteria of the quality and value of a multitude of objects which are susceptible of different proofs. The touchstone is an imperfect proof of the quality and value of metallic compositions mingled with gold and silver: the hydrometer is an unfailing proof, in so far as identity of quality results from the identity of specific gravity.
The adulterations most important to be known, are those which are hurtful to health; such as the mixture of chalk and burnt bones with flour, in the making of bread; the use of lead in taking off the acidity of wine, or of arsenic in refining it. Chemistry presents the means of discovering all these adulterations; but knowledge is required for their application.
The intervention of government in this regard, may be limited to three points:—1st, The encouragement of the discovery of the means of proof, in those cases in which they are still wanting; 2d, The dissemination of this knowledge among the people; 3d, The prescription of their use by officers appointed for the purpose.
Institute Stamps or Marks, to attest the Quantity or Quality of Articles which ought to be made according to a certain Standard.
Such marks are declarations or certificates in an abridged form. There are five points to be considered in these documents: 1st, Their end; 2d, The person whose attestation they bear; 3d, The extent and the details of the information they contain; 4th, The visibility, the intelligibility of the mark; 5th, Its permanence, its indestructibility.
The utility of authentic attestations is not doubtful. They are successfully employed for the following objects:—
1. To secure the rights of property. It may be left to the prudence of individuals to use this precaution in what concerns them; but with respect to public property, and objects in deposit, the employment of such marks ought to be regulated by law. It is thus that, in England, stores for the use of the royal navy bear a particular mark, which it is unlawful to employ in the merchant service. In the royal arsenals, an arrow is marked upon the timber used in building; a white thread runs through the cordage, which private persons are forbidden to use.
2. To secure the quality or quantity of commercial articles for the benefit of purchasers. Thus, by statute law in England, marks are placed upon many articles; upon blocks of wood exposed to sale, upon leather, bread, pewter, plate, money, woollen goods, stockings, &c.
3. To secure the payment of taxes. If the article liable to the tax has not the mark in question, it is a proof that the tax has not been paid. The examples are numberless.*
4. To secure obedience to the laws which prohibit importation.
I am about to cite an example, which might have been referred to the preceding head as well as to this, for it has prevented the offence—it may be, by increasing the difficulty of hiding it—it may be, by giving to more persons an immediate interest in preventing it.
The carriage of post letters in England had always wanted diligence and exactness; the couriers would stop for their pleasure, or their profit: the innkeepers would not urge them forward. All these circumstances were so many little offences or violations of the established rules. What ought the legislature to do to remedy them? Superintendence was fatiguing; punishment was gradually relaxed; informations, always regarded as odious or embarrassing, became rare, and the abuse, suspended for a moment, soon returned to its ordinary course.
A very simple mode was hit upon, which required neither law, nor punishment, nor information, but which was better than all.
This mode consisted in combining two establishments, which had till that time been distinct: the carriage of letters and the conveyance of passengers. The success was complete: the celerity of the post has been doubled, and travellers have been better served. This deserves the trouble of an analysis.
The travellers who accompany the post-office servants, become so many inspectors of their conduct; they cannot escape from their observation. At the same time that they are excited by their praises, and by the reward which they expect from them, they cannot be ignorant that if they lose their time, these travellers have a natural interest in complaining, and that they may become informers, without being paid for the service, or fearing the odium attached to the character. Such are the advantages of this little combination. Evidence secured respecting the slightest faults—the motive of reward substituted for that of punishment—informations and examinations spared—occasions for punishment rendered extremely rare, and the two services rendered by their union more commodious, more prompt, and more economical.
This happy idea of Mr. Palmer is a study in legislation. It is well to reflect on what he has successfully done in this respect, that we may learn to overcome other difficulties. In seeking to develope the cause of this success, we shall rise from particulars to general principles.
The greater number of offences would not be committed, if the delinquents did not hope to remain unknown. Every thing which increases the facility of recognising and finding individuals, adds to the general security.
This is one reason why less is to be feared from those who have a fixed habitation, property, or a family. The danger arises from those who, from their indigence or their independence of all ties, can easily conceal their movements from the eye of justice.
Tables of population, in which are inscribed the dwelling-place, the age, the sex, the profession, the marriage or celibacy of individuals, are the first materials of a good police.
It is proper that the magistrate should be able to demand an account from every suspected person as to his means of living, and consign those to a place of security who have neither an independent revenue, nor other means of support.
There are two things to be observed with regard to this object: That the police ought not to be so minute or vexatious as to expose the subjects to find themselves in fault, or vexed by numerous and difficult regulations. Precautions, which are necessary at certain periods of danger and trouble, ought not to be continued in a period of quietness; as the regimen suited to disease ought not to be followed in a state of health. The second observation is, that care should be taken not to shock the national spirit. One nation would not bear what is borne by another. In the capital of Japan, every one is obliged to have his name upon his dress. This measure might appear useful, indifferent, or tyrannical, according to the current of public prejudices.
Characteristic dresses have a relation to this end. Those which distinguish the different sexes are a means of police as gentle as salutary. Those which serve to distinguish the army, the navy, the clergy, have more than one object; but the principal one is subordination. In the English universities, the pupils wear a particular dress, which restrains them only when they wish to go beyond the prescribed bounds. In charity schools, the scholars wear not only a uniform dress, but even a numbered plate.
It is to be regretted that the proper names of individuals are upon so irregular a footing. Those distinctions, invented in the infancy of society, to provide for the wants of a hamlet, only imperfectly accomplish their object in a great nation. There are many inconveniences attached to this nominal confusion. The greatest of all is, that the indication arising from a name is vague; suspicion is divided among a multitude of persons; and the danger to which innocence is exposed, becomes the security of crime.
In providing a new nomenclature, it ought to be so arranged, that, in a whole nation, every individual should have a proper name, which should belong to him alone. At the present time, the embarrassment which would be produced by the change would perhaps surpass its advantages; but it might be useful to prevent this disorder in a new state.*
There is a common custom among English sailors, of printing their family and christian names upon their wrists, in well-formed and indelible characters; they do it that their bodies may be known in case of shipwreck.
If it were possible that this practice should become universal, it would be a new spring for morality, a new source of power for the laws, an almost infallible precaution against a multitude of offences, especially against every kind of fraud in which confidence is requisite for success. Who are you, with whom I have to deal? The answer to this important question would no longer be liable to evasion.
This means, by its own energy, would become favourable to personal liberty, by permitting relaxations in the rigour of proceedings. Imprisonment, having for its only object the detention of individuals, might become rare, when they were held as it were by an invisible chain.
There are, however, plausible objections to such a practice. In the course of the French revolution, many persons owed their safety to a disguise, which such a mark would have rendered unavailing. Public opinion, in its present state, opposes an insurmountable obstacle to such an institution; but opinion might be changed, by patiently guiding it with skill, and by beginning with great examples. If it were the custom to imprint the titles of the nobility upon their foreheads, these marks would become associated with the ideas of honour and power. In the islands of the South Sea, the women submit to a painful operation, in tracing upon their skin certain figures, to which they annex the idea of beauty. The impression is made by puncturing the skin, and rubbing in coloured powders.
These means depend much upon geographical dispositions—upon natural and artificial barriers. In Russia, the thinness of the population, the asperity of the climate, the difficulty of the communications, give to justice a force which could hardly have been believed to exist in so vast a country.
At Petersburgh and at Riga, a passport cannot be obtained till the intention to depart has been several times announced in the Gazette. This precaution, taken against fraudulent debtors, has greatly increased commercial confidence.
Every thing which increases the communication of intelligence with rapidity, may be referred to this head.
Descriptions are very imperfect and doubtful instruments of recognition; profiles, which may be so easily multiplied at a low price, would be much better: they might be employed either for prisoners whose escape is feared, or for soldiers whose desertion is apprehended, or for any suspected person who may have been denounced to the magistrate, and whom it is desirable to secure, without carrying restraint so far with regard to him as imprisonment.
It is not my intention here to enter upon the vast subject of procedure: this will be the object not of a chapter, but of a separate work. The present chapter will be confined to two or three general observations.
Has a crime been committed? it is the interest of society that the magistrate charged with its punishment should be informed of it, and informed in such manner as to authorize the infliction of the punishment incurred. Is it alleged that a crime has been committed? it is the interest of society that the truth or falsehood of this allegation should be made evident. Hence, the rules of evidence, and the forms of procedure, ought to be such as, on one side, to admit all true information, and, on the other, to exclude all false information; that is to say, all that offers more chances of deceiving than enlightening.
Nature has placed before our eyes a model of procedure. When we regard what passes in the domestic tribunal—when we examine the conduct of the father of a family among his children and servants, of whom he is the head—we there discover the original features of justice, which we can hardly recognise after they have been disfigured by men incapable of discerning, or interested in disguising the truth. A good judge is only the father of a family acting upon a larger scale. The methods which are good for the father of a family in his search after truth, are equally good for the judge. This is the first model of procedure; it has been departed from, but it ought never to have been discarded.
It is true, that a confidence may be accorded to the father of a family, which cannot be accorded to a judge, because the last has not the same motives of affection to guide him, and may perhaps be led astray by a personal interest. But this only proves that it is necessary to guard against the partiality or corruption of the judge, by precautions which are not requisite in the domestic tribunal. This does not prove that the forms of procedure, and rules of evidence, ought to be different.
English jurisprudence admits the following maxims:—
1. That no one shall be witness in his own cause.
2. That no one shall accuse himself.
3. That the testimony of a person interested in the cause is not admissible.
4. That hearsay evidence is not admissible.
5. That no one shall be tried twice for the same offence.
It is not my intention here to discuss these rules of evidence. In treating of procedure in general, it will be proper to examine if English jurisprudence, superior in so many respects to that of all other nations, owes that superiority to these maxims, or whether they are not the principal cause of that weakness in the powers of justice, from which arises the feebleness of the police in England, and the frequency of crimes.
I shall only observe, that all precautions which are not absolutely necessary for the protection of innocence, offer a dangerous protection to crime. I know no maxim in procedure more dangerous than that which places justice in opposition to itself—which establishes a kind of incompatibility among its duties. When it is said, for example, that it is better to allow one hundred guilty persons to escape, than to condemn one that is innocent,—this supposes a dilemma which does not exist. The security of the innocent may be complete, without favouring the impunity of crime: it can only be complete upon that condition; for every offender who escapes, menaces the public safety; and to allow of this escape is not to protect innocence, but to expose it to be the victim of a new crime. To absolve a criminal, is to commit by his hands the crimes of which he becomes the author.
The difficulty of prosecuting crimes is one cause of their impunity, and of weakness on the part of justice. When the law is clear—when the judge is appealed to immediately after the commission of the supposed crime, the function of accuser is almost confounded with that of witness. When the offence is committed under the eyes of the judge, only two persons are necessary, so to speak, in the drama—the judge and the offender. It is distance which detaches the function of witness from that of judge. But it may happen, that all the witnesses to a fact cannot be collected together; or that the discovery of the offence may not be made till long after its commission; or that the accused has to allege in his defence, facts which can only be verified in the place where they are said to have happened. All this may require delay. This delay may give rise to new incidents, which may require further delay. The procedure of justice becomes complicated; and in order to follow all this chain of operations, without confusion and without neglect, it becomes requisite to place over these judicial proceedings a person who shall have to conduct them. Hence arises another function, that of accuser. The accuser may be either one of the witnesses, or a person interested in the affair, or an officer expressly appointed for this object.
Judicial functions have often been so divided, that the judge who receives the evidence whilst it is recent, has no right to decide upon it, but must send the affair to another judge, who will only have leisure to attend to it when the proofs are half effaced. There are beforehand established, in most states, many useless formalities, and it has been necessary to create officers to follow up these formalities. The system of procedure is thus rendered so complicated, that it becomes an abstruse science: he who would prosecute an offence is obliged to put it into the hands of an attorney, and the attorney himself cannot proceed without having another man of law, of a superior class, to direct him by his counsels, and to speak for him.
To these disadvantages may be added two others:—
1. Legislators, without thinking that they have placed themselves in opposition to themselves, have often closed the approaches of the tribunals to those who have most need of them, by subjecting procedure to the most objectionable taxes.
2. There is a public dislike attached to all those who employ themselves as public accusers in the execution of the laws. This prejudice is foolish and pernicious, yet legislators have often had the weakness to encourage it, without having made the slightest effort to overcome it.
What is the effect of all this accumulation of delay and discouragement? it is, that the laws are not executed. When a man can at once address the judge, and tell him what he has seen, the expense of this proceeding is a trifle. In proportion as he is obliged to pass by a great number of intermediates, his expenses increase; when to this is added the loss of time, the disgust, the uncertainty of success, one is surprised that men are still found sufficiently resolute to engage in such a pursuit. There are but few, and there would be still fewer, if those who adventure in this lottery knew as well as the lawyers what it would cost, and the number of adverse chances.
These difficulties would vanish on the simple institution of a public accuser, clothed with the character of a magistrate, having the conduct of the prosecution, and chargeable with the expenses. The informers who would require to be paid, need have only a small salary; and a hundred gratuitous informers would present themselves, for one who required to be paid.* Each law put into execution would exhibit its good or bad effects: the good grain would be preserved, and the chaff thrown into the fire. Informers, animated by public spirit, rejecting all pecuniary recompense, would be listened to with the respect and confidence which is their due. Delinquents would no longer be able to withdraw themselves from the punishment they had incurred, by treating with those who have undertaken the prosecution, either by engaging them to desist, or by turning them to their own favour.
It is true, that in England, in every important case, the prosecutor is forbidden to make a compromise with the accused without the permission of the judge; but if this prohibition were universal, what effect would it have in those cases in which it is the interest of both parties to evade it?
Those acts which have a connexion with a pernicious event as its cause, may be considered as accessory offences in relation to the principal offence.
The principal offence being well determined, there may be distinguished as many accessory offences as there are acts which may serve either to prepare or to manifest a projected crime. Now, the more these preparatory acts are distinguished, for the purpose of prohibiting them, the greater the chance of preventing the execution of the principal crime itself. If the criminal be not stopped at the first step of his career, he may be at the second, or the third. It is thus that a prudent legislator, like a skilful general, reconnoitres all the external posts of the enemy, with the intention of stopping his enterprises. He places, in all the defiles, in all the windings of his route, a chain of works, diversified according to circumstances, but connected among themselves, in such manner that the enemy finds in each, new dangers and new obstacles.
If we regard legislators in their practice, we shall not find one who has worked systematically upon this plan, and not one who has not followed it to a certain point.*
Offences against the game-laws have been divided into many accessory offences, according to the nature of the snare, according to the kind of nets or other instruments necessary for taking the game, &c. Smuggling also has been attacked, by prohibiting many preparatory acts. Frauds, with regard to different kinds of coin, have been combated in the same manner.
The following are other examples of what may be done under the head of police:—
Against Homicide and other Corporal Injuries.
Prohibition of purely offensive arms, which are easily hidden. In Holland, it is said that a kind of instrument, shaped like a needle, is made, which is thrown from a tube, which occasions a mortal wound. The manufacture, the sale, the possession of these instruments, might be prohibited as accessaries to murder.
Pocket-pistols, which highway robbers have made use of in England, ought they to be prohibited? The utility of such a prohibition is problematical. Of all methods of robbery, that which is carried on by means of fire-arms is the least dangerous to the person attacked. In such a case, the simple threat is commonly sufficient for the accomplishment of the object. The robber who should pull his trigger after the party had delivered his money, would be guilty not only of useless cruelty, he would disarm himself; instead of which, by reserving his fire, he preserves his means of defence. He who employs a club or a sword, has not the same motive for refraining to strike: the first blow becomes even a reason for a second, that he may put his victim out of a condition to pursue him.
Prohibition of the sale of poisons requires that a catalogue be made of poisonous substances; the sale of them cannot, however, be altogether forbidden;† it can only be regulated and subjected to precautions requiring that the seller should know the purchaser, that he should have witnesses of the sale, that he should register the sale in a separate book, &c. These regulations, to be complete, would require considerable details. Would the advantages compensate for the trouble? This will depend upon the manners and habits of the people. If poisoning be a frequent crime, it will be necessary to take indirect precautions against it. They would have been proper in ancient Rome.
Accessory offences may be distinguished into four classes:—The first class implies an intention formed to complete the principal offence. Offences of this class may be comprised under the general name of attempts or preparations.‡
The second class does not suppose that the intention to commit the crime is actually formed, but that the individual is placed in a situation in which he will form the design for the future. Gaming, prodigality, idleness when joined with indigence, are offences of this class. Cruelty towards animals is the road to cruelty towards men, &c.
The third implies no criminality, either actual, intentional, or probable, but only possible, from accident. These kinds of offences are created, when police regulations are made which have for their object the prevention of calamities—when, for example, the sale of certain poisons, of gunpowder, &c. is forbidden. The violation of these regulations, separate from all criminal intention, is an offence of this third class.
The fourth class is composed of presumed offences; that is to say, of acts that are considered as proofs of an offence (evidentiary offences;) acts hurtful or not hurtful in themselves, furnishing presumptions of an offence having been committed. By an English statute, a certain conduct on the part of a woman was directed to be punished as murder, because it was supposed that such conduct was a sure proof of infanticide. By another statute, it is made a capital crime for bands of men to go about armed in disguise, because this is considered a proof of a design to commit murder, in protecting smugglers from justice. By another statute, the possession of stolen goods, without being able to give a satisfactory account of the manner in which they were acquired, is made an offence, this circumstance being considered a proof of complicity. Again, by another statute, the obliteration of the marks upon shipwrecked effects is made an offence, this being considered a proof of an intention to steal them.
These offences, founded upon these presumptions, suppose two things:—1. Mistrust in the system of procedure; 2. Mistrust in the wisdom of the judge. In England, the legislature has thought that juries, being too much disposed to pardon, would not see in these circumstances a certain proof of a crime; and it has made the act itself, which furnishes the presumption, a separate offence—an offence independent of every other. In a country in which the tribunals should possess the entire confidence of the legislature, these acts would be placed under the head to which they belong, and would be considered as presumptions, the judge being allowed to draw from them his conclusions.
With respect to accessory offences, it is essential that the legislator should possess three rules by way of memento:—
1. For each principal offence which he creates, he ought to extend his prohibition to the preparatory acts; to simple attempts, generally under the sanction of a less punishment than is appointed for the principal offence. This is the general rule, and the exceptions ought to be founded upon particular reasons.
2. He ought, then, under the description of the principal offence, to place all the accessory, preliminary, and concomitant offences, which are susceptible of a specific and precise description.
3. In the description of accessory offences, he should take care not to impose too much restraint—not to trespass upon the liberty of individuals, so as to expose innocence to danger by his precipitate conclusions. The description of an offence of this kind is almost always dangerous, if it do not include a clause allowing the judge to estimate the degree of presumption which ought to be drawn from it. In this case, to create an accessory offence is almost the same thing as suggesting the fact in question to the judge, by way of instruction, under the character of an indicative circumstance, and not allowing him to draw any conclusion from it, if he see any special reason for regarding the indication as inconclusive.
If the punishment for an attempt, or preliminary offence, be equal to that of the crime, when completed, without making allowance for the possibility of repentance or prudential desisting, the offender, seeing himself exposed to the same punishment for the simple attempt, will see at the same time that he is at liberty to complete it without incurring any more danger.
OF THE CULTIVATION OF BENEVOLENCE.
The principle of benevolence is in itself distinct from the love of reputation. Each of these may act without the other. The first may be a feeling of instinct, a gift of nature; but it is in great measure the produce of cultivation, the fruit of education. For where will be found the greater measure of benevolence—among the English or among the Iroquois—in the infancy of society or at its maturity? If the feeling of benevolence be susceptible of augmentation, which cannot be doubted, it must be by the assistance of that other principle of the human heart, the love or reputation. When a moralist paints benevolence under the most amiable characters, and selfishness and hardness of heart in the most hateful colours, what does he do? He seeks to unite to the purely social principle of benevolence, the demi-personal and demi-social principle of the love of reputation; he seeks to combine them, and give them the same direction—to arm the one by the other. If these efforts are successful, which of the two principles deserves the praise? neither the one nor the other exclusively, but their reciprocal concurrence—the love of benevolence as the immediate cause; the love of reputation as the remote cause. A man who yields with pleasure to the soft accents of the social principle, neither knows, nor desires to know, that it is a less noble principle which has given them their first tone. There is a disdainful delicacy in the better element of our nature, which wishes to owe its origin only to itself, and blushes at all foreign association.
1. To increase the force of the feelings of benevolence; 2. To regulate their application according to the principle of utility: such ought to be the two objects of the legislator.
1. Would he inspire the citizens with humanity? he should set them the first example; he should show not only the greatest respect for human life, but for all circumstances influencing sensibility. Sanguinary laws have a tendency to render men cruel, either from fear, from imitation, or from revenge; laws dictated by a spirit of gentleness, humanize a nation, and the spirit of the government will be found in its families.
The legislator ought to interdict every thing which may serve to led to cruelty. The barbarous spectacles of gladiators, introduced at Rome during the latter times of the republic, without doubt contributed to give the Romans that ferocity which they displayed in their civil wars. A people accustomed to despise human life in their games, could not be expected to respect it amid the fury of their passions.
It is proper, for the same reason, to forbid every kind of cruelty exercised towards animals, whether by way of amusement, or to gratify gluttony. Cock-fights, bull-baiting, hunting hares and foxes, fishing and other amusements of the same kind, necessarily suppose either the absence of reflection, or a fund of inhumanity, since they produce the most acute sufferings to sensible beings, and the most painful and lingering death of which we can form any idea. It ought to be lawful to kill animals, but not to torment them. Death, by artificial means, may be made less painful than natural death: the methods of accomplishing this deserve to be studied and made an object of police. Why should the law refuse its protection to any sensitive being? The time will come, when humanity will extend its mantle over every thing which breathes. We have begun by attending to the condition of slaves; we shall finish by softening that of all the animals which assist our labours or supply our wants.
I know not if the Chinese legislators, in instituting their minute ceremonial, designed to cultivate benevolence, or only to maintain peace and subordination. Politeness in China is a sort of worship—a ritual, which is the great object of education, and the principal science. The exterior movements of this great people, always regulated, always prescribed by etiquette, are almost as uniform as those of a regiment which repeats its exercise. This pantomine of benevolence may be as destitute of reality, as a devotion charged with trifling practices may be separated from morality. So much restraint seems ill to accord with the movements of the human heart; and these exhibitions at command, do not confer any obligation, because they possess no merit.
There exist some principles of antipathy, which are sometimes interwoven with the political constitutions of states, which it is difficult to extirpate. Such are religious enmities, which excite their partisans to hate and persecute each other; hereditary revenges between powerful families; privileged conditions, which form insurmountable barriers among the citizens—the consequences of conquests; when the conquerors have never become incorporated with and mingled with the conquered; animosities founded upon ancient injustice; government factions, which rise with victory and fall upon defeat. In these unfortunate states, hearts are more frequently united by the wants of hatred than of love. To render them benevolent, it is necessary to relieve them from fear and oppression.
The destruction of those prejudices which render men enemies, is one of the greatest services which can be rendered to morality.
The travels of Mungo Park in Africa have represented the negroes under the most interesting point of view: their simplicity, the strength of their domestic affections, the picture of their innocent manners, has increased the public interest in their favour.
Satirists weaken this sentiment. When any one has read Voltaire, does he feel disposed to favour the Jews? Had he possessed more benevolence with respect to them, by exposing the degradation in which they are held, he would have explained the less favourable points of their character, and have exhibited the remedy by the side of the disease.
The greatest attack upon benevolence has been made by religious exclusionists; by those who have incommunicable rites; by those who breathe intolerance, and represent all unbelievers as infidels and enemies of God.
In England, the art of exciting benevolence by the publicity given to its exhibition, is better understood than anywhere besides. Is it desired to undertake any scheme of benevolence—a charity which requires the concurrence of numbers? a committee is formed of its most active and distinguished supporters; the amount of the contributions is announced in the public papers; the names of the subscribers are printed there day by day. This publication serves many purposes: its immediate object is to guarantee the receipt and employment of the funds; but it is a feast for vanity, by which benevolence profits.
In these establishments of charity, the annual subscribers are called governors; the superintendence which they exercise, the little state which they form, interests them in promoting their welfare; individuals like to trace the good which has been done, to enjoy the power which is conferred; the benefactors are brought near to the parties relieved, and these being placed in view, strengthen benevolence, which cools when its object is removed to a distance, but is warmed by its presence.
There are more of these associations of benevolence in London, than there are convents in Paris.
Many of these charities have particular objects; the blind, the dumb, the lame, orphans, widows, sailors, the children of the clergy, &c. Every individual is touched with one kind of misery, more than by another; his sympathy is always affected by some personal circumstance: there is art, therefore, in diversifying these charities, in separating them into different branches which apply to every kind of sensibility, so that none of them are lost.
It is surprising that more draughts have not been made upon this disposition from among females, among whom the sentiment of pity is stronger than among men. There are two institutions in France, well adapted to this end: the Daughters of Charity, who devote themselves to the service of the hospitals; and the Maternal Society, formed by the ladies in Paris, who visit poor women in the time of their confinement, and take care of the first days of infancy.
2. The feelings of benevolence are liable to be led astray from the principle of general utility. This can only be prevented by instruction: they cannot be commanded; they cannot be forced: they can only be persuaded and enlightened. Men are brought by little and little to distingish the different degrees of utility; to proportion their benevolence to the extent of its object. The finest model is drawn by Fenelon in that saying, in which he has so well painted his own heart:—“I prefer my family to myself, my country to my family, and the human race to my country.”
The objects sought in these public instructions should be, to direct the affections of the citizens to this object; to repress the wanderings of benevolence; to make them feel their own interest in the general interest; to make them ashamed of that spirit of family—of that esprit de corps which militates against the love of country—of that unjust love of country which turns to hatred against other nations; to divert them from the exercise of unfounded pity towards deserters, smugglers, and other persons who offend against the government; to disabuse them of the false notion that there is humanity in favouring the escape of the guilty—in procuring impunity for crime—in encouraging mendicity, to the prejudice of industry; to seek to give to all these sentiments the proportion most advantageous for all, by showing the danger and littleness of the caprices, the antipathies, and momentary attachments which turn the balance against general utility and permanent interests.
The more we become enlightened, the more benevolent shall we become; because we shall see that the interests of men coincide upon more points than they oppose each other. In commerce, ignorant nations have treated each other as rivals, who could only rise upon the ruins of one another. The work of Adam Smith is a treatise upon universal benevolence, because it has shown that commerce is equally advantageous for all nations—each one profiting in a different manner, according to its natural means; that nations are associates and not rivals in the grand social enterprise.
EMPLOYMENT OF THE MOTIVE OF HONOUR, OR OF THE POPULAR SANCTION.
To increase the strength of this power—to regulate its application: such are the two objects to be accomplished.
The strength of public opinion is in combined proportion to its extent and intensity: its extent is measured by the number of suffrages; its intensity by the degree of its blame or approbation.
For increasing the power of opinion in extent, there are many methods: the principal are, the liberty of the press, and the publicity of all acts which interest the nation—publicity of the tribunals, publicity of accounts, and publicity of the debates upon state affairs, when secresy is not required by some particular reason. The enlightened public—the depository of the laws and archives of honour, the administrator of the moral sanction, forms a supreme tribunal which decides upon all causes and all persons. By the publicity of affairs, this tribunal is in a condition to collect the proofs, and to judge—by the liberty of the press, to pronounce and to execute its judgment.
For increasing the power of opinion in intensity, there are also a diversity of methods, either by punishments which possess a certain character of ignominy, or by rewards which have for their principal object the investing with honour those who receive them.
There is a secret art of governing opinion, so that it shall not perceive, so to speak, the manner in which it is led. It consists in so disposing matters, that the act to be prevented cannot be performed, without also performing an act which popular opinion has already condemned.
Is a tax to be paid? according to the circumstances of the case, an oath, or a certificate, may be required, that it is correctly paid.
To take a false oath, to fabricate a false certificate, are offences which the public is prepared beforehand to mark with the seal of its condemnation, whenever there shall be occasion for it. This, then, is a sure method of rendering infamous an offence, which, without its accessary, can never exist.*
Sometimes a simple change in the name of the objects suffices to change the sentiments of men. The Romans abhorred the name of king, but they suffered those of dictator and emperor. Cromwell would not have been able to place himself upon the throne of England; but he possessed, under the title of protector, an authority more unlimited than that of the king. Peter I. abdicated the title of despot for himself, and he directed that the slaves of the nobles should only be called subjects.
If the people were philosophers, this expedient would be worth nothing; but upon this point, philosophers are only men. How much deception is there in the words liberty and equality! What contradictions between that luxury which all the world condemns, and that prosperity which all the world admires!
The legislator should take care not to furnish arms to public opinion in those cases in which he finds it opposed to the principle of utility. For this reason, he ought to efface from the laws all remains of the pretended crimes of heresy and sorcery, that there may be no legal foundation for these superstitious ideas. If he dare not wound an error too widely extended, he ought at least not to give it a new sanction.
It is very difficult to employ the motive of honour in engaging the citizens in the service of the law against delinquents. Pecuniary rewards granted for informations have failed in their object: the desire of gain has been opposed by that of shame; the law, instead of gaining strength by offering a reward disapproved by public opinion, has been weakened. Individuals have been suspected of acting from a degrading motive. The illchosen reward, instead of attracting, has repulsed, and deprived the law of more gratuitous protectors, than it has procured for it mercenary servants.
The most powerful method of producing an important revolution in public opinion is to strike the mind of the people by some noble example. Thus Peter the Great, by passing gradually through all the gradations of the public service, taught his nobility to bear the yoke of military subordination. Thus Catherine II. surmounted the popular prejudice against inoculation, not by trying it upon some criminals, as was done in the reign of Queen Anne, but by submitting to it herself.
OF THE EMPLOYMENT OF THE RELIGIOUS SANCTION.
The cultivation of religion has two objects: to increase the force of this sanction; to give to this force a suitable direction. If this direction be bad, it is evident that the less force this sanction possesses, the less evil it will do. With regard to religion, the first thing, therefore, is to examine into this direction: the increase of its force is only a secondary object.
Its direction ought to be conformable to utility. As a sanction, it is composed of rewards and punishments. Its punishments should be attached to actions hurtful to society, and to these actions exclusively: its rewards ought to be promised to actions whose tendency is advantageous to society, and to no others. Such is the fundamental dogma.
The only method of judging of its direction is to consider it solely with relation to the welfare of political society. Every thing besides this is indifferent; and every thing in religious belief which is indifferent, is liable to become pernicious.
But every article of faith is necessarily hurtful, so soon as the legislator, in order to favour its adoption, employs coercive or penal motives. The persons whom he seeks to influence may be considered as forming three classes: those who already are of the same opinion with the legislator; those who reject this opinion; those who neither adopt nor reject it.
With regard to the conformists, the law is not necessary: with regard to the nonconformists, it is useless: by the supposition itself, it does not accomplish its object.
When a man has formed his opinion, is it in the power of punishment to make him change it? The question appears ridiculous. Punishments tend rather to an opposite result: they tend rather to confirm him in his opinion, than to make him give it up; partly because the employment of force is a tacit avowal that reasons are wanting—partly because recourse to violent measures produces aversion to the opinions which it is sought to maintain in this manner. All that can be obtained by punishments is, not to engage a man to believe, but to declare that he believes.
Those who, from conviction or honour, refuse to make this declaration, undergo the evil of the punishment—the persecution: for what is called persecution, is an evil which is not compensated for by any advantage—an evil in pure waste; and this evil inflicted by the hand of the magistrate is precisely the same in kind, but much stronger in degree, than if it had been inflicted by an ordinary malefactor.
Those who, less strong or less noble, escape by a false declaration, give way to the threats, to the danger which immediately presses upon them; but the momentary pain which is avoided, is converted, as to them, into pains of conscience, if they have any scruples, and into pains of contempt on the part of society, which charges with baseness these hypocritical recantations. In this state of things, what happens? One part of the citizens must accustom itself to despise the opinions of the other, in order to be at peace with themselves. They employ themselves in making subtle distinctions between innocent and criminal falsehood; in establishing privileged lies, because they serve as a protection against tyranny; in establishing customary perjuries, false subscriptions, and consider them as articles of peace. In the midst of these subtleties, regard for truth is neglected, the limits of right and wrong are confounded, a train of less pardonable false-hoods is introduced under favour of the first—the tribunal of public opinion is divided: the judges who compose it are not guided by the same laws; they no longer know clearly what degree of dissimulation they ought to condemn, nor what they ought to excuse; its voice is drowned in contradictions; and the moral sanction, having no longer an uniform regulator, is weakened and depraved. Thus the legislator, who requires declarations of faith, becomes the corrupter of his country. He sacrifices virtue to religion, instead of making religion an auxiliary to virtue.
The third class to be examined is that of those who, at the establishment of the penal law, had not yet formed any opinion either for or against. With respect to these, it is probable that the law will influence the formation of their opinion. Seeing danger on one side, and security on the other, it is natural that they should regard the arguments of the condemned opinion with a degree of fear and aversion, which they will not feel for the arguments of the favoured opinion. The arguments which they wish to find true, will make a more lively impression than those which they wish to find false: and by this means, a man may come to believe, or rather not to reject, not to misbelieve, a proposition which he would not have adopted if his inclination had been left free. In this last case, the evil is less than in the two former cases, but does not cease to be an evil. It may happen, but it does not always happen, that the judgment gives way entirely to the affections; but even when that happens, that is to say, when the persuasion is as strong as it can be, if fear form any part of the motives of this persuasion, the mind is never perfectly tranquil: what is believed to-day, it is feared may not be believed on the morrow. A clear moral truth is never doubtful, but the belief of a dogma is always more or less shifting. Hence arises irritation against those who attack it. Examination and discussion is dreaded, because we do not feel ourselves placed upon solid ground. It is not necessary to pull down anything in a building which is firmly put together. The understanding becomes weakened; the mind seeks only complete repose in a kind of blind credulity; it seeks out all the errors which possess affinity with its own; it fears clearly to explain itself upon what is possible and impossible, and wishes to confound all boundaries. It loves to entertain sophistry, and every thing which fetters the human mind, every thing which would persuade it that it cannot reason with entire certainty. It acquires an unhappy dexterity in rejecting evidence—in giving force to half proofs—in listening only to one side—in subtilizing against reason. In a word, under this system, it is proper to put a bandage over the eyes, that they may not be wounded by the brightness of day.
Hence, every penal method employed for increasing the force of the religious sanction, acts indirectly against that essential part of good manners, which consists in respect for truth, and respect for public opinion. All the enlightened friends of religion now think the same. There are, however, but few nations which have acted upon this principle. Violent persecutions have ceased, but there still exist secret persecutions, civil punishments, political incapacities, threatening laws, a precatious toleration—a humiliating situation for classes of men who owe their tranquillity only to a tacit indulgence, a continual pardon.
In order to obtain clear ideas as to the advantage which the legislator may derive from increasing the force of the religious sanction, it is necessary to distinguish three cases: 1. Those in which it is entirely subordinated to him; 2. Those in which others partake of this influence with him; 3. Those in which it depends upon a stranger. In this latter case, the sovereignty is really divided between two magistrates—the spiritual (as it is commonly called) and the temporal. The temporal magistrate will be in constant danger of seeing his authority contested or destroyed by that of his rival, and what he should do for increasing the force of the religious sanction, might prove a diminution of his own power: whilst as to the effects which might result from such a state of strife, they may be found on the tables of history. The temporal magistrate commands his subjects to perform one action; the spiritual magistrate prohibits it: whichever they obey, they are punished by the one or the other; proscribed or damned, they are placed between the fear of the civil sword, and the fear of eternal fire.
In Protestant countries, the clergy are essentially subordinate to the political power: their dogmas do not depend upon the prince; but those who interpret them, depend upon him. But the right of interpreting these dogmas is little less than the same thing as the right of making them. Hence, in Protestant countries, religion is more easily modelled upon the plan of the political authority. Married priests are more completely citizens; they do not form a phalanx among themselves, which can become formidable; they have neither the power of the confessional, nor that of absolution.
But in considering facts alone, whether in Protestant or Catholic countries, it must be acknowledged that religion has played too great a part in the miseries of nations. It appears to have been more often the enemy, rather than the instrument of civil government. The moral sanction has never more force than when it accords with utility; but, unfortunately, the religious sanction seems to have had most force in those cases in which it was most opposed to utility. The inefficacy of religion, when applied to the promotion of political good, is the constant subject of the declamations of those who have the greatest interest in exaggerating its good effects. Too little powerful for the production of good, it has often been too powerful in the production of evil. It was the moral sanction which animated Codrus, Regulus, Russell, and Sidney: it was the religious sanction which worked in Philip II. the scourge of the Low Countries; in bloody Mary of England; and in Charles IX., the executioner of France.
The ordinary solution of this difficulty is to attribute all the good to religion, and all the evil to superstition. But this distinction, in this sense, is purely verbal. The thing itself is not changed, because the name is changed, and it is called religion in the one case, and superstition in the other. The motive which acts upon the mind, in both the cases, is precisely the same: it is always the fear of evil and the hope of good from an Almighty Being, respecting whom different ideas have been formed. Hence, in speaking of the conduct of the same man on the same occasion, some will attribute it to religion, and others to superstition.
Another observation, as trivial as the first, and as weak as trivial, is, that it is unjust to argue against the use of any thing from its abuse, and that the best instruments are those which do the most evil when they are misused. The futility of this argument is easily pointed out. The good effects of a thing are called its use; the bad effects are called its abuse. To say that you ought not to argue against the use from the abuse, is to say that in making a just appreciation of the tendency of a cause, you ought only to regard the good it occasions, and not to consider the evil. Instruments of good, ill employed, may often become instruments of evil: this is true, but the principal character in the perfection of an instrument is, not to be liable to be ill employed. The most efficacious ingredients in medicine are convertible into poisons, I allow; but those which are dangerous are not so good upon the whole as those which render the same service, if such there be, without being liable to the same inconveniences: mercury and opium are very useful; bread and water are still more so.
I speak without circumlocution, and with entire freedom. I have elsewhere explained myself upon the utility of religion; but I must not omit to observe here, that it tends more and more to disengage itself from futile and pernicious dogmas, and to coincide with sound morality and sound policy. Irreligion, on the contrary, (I refuse to pronounce the word atheism) has manifested itself in our days under the most hideous forms of absurdity, immorality, and persecution. This experience is sufficient to show to all good minds in what direction they should exert their efforts. But if government act too openly in favour of this direction, it will fail in its object. It is freedom of inquiry which has corrected the errors of the ages of ignorance, and restored religion to its right direction: freedom of inquiry will continue still to purify it, and to reconcile it with public utility.
This is not the place to examine all the services which religion may render, either as a source of consolation under the ills which man is heir to; or as a moral teaching, best adapted to the most numerous class of society; or as a means of exciting beneficence,* and of producing useful acts of self-devotion, which could not be obtained upon purely human motives.
The principal use of religion, in civil and penal legislation, is the giving a new degree of force to an oath—another foundation for confidence.
An oath includes two different bonds—the religious and the moral: the one obligatory upon all; the other only upon those who think in a certain manner. The same formulary which professes to expose a man, in case of perjury, to religious punishments, exposes him in the same case to legal punishments and the contempt of men. The religious bond is the most striking; but the greatest part of the force of an oath depends upon the moral bond: the influence of the first is partial; that of the second is universal. It would be, therefore, highly imprudent to employ the one, and neglect the other.
There are some cases in which an oath is of the greatest force: when it operates in concert with public opinion—when it has the support of the popular sanction. There are cases in which it has no force at all: when public opinion acts in opposition to it, or only does not second it. Such are custom-house oaths, and those which are required of the students in certain universities.
It is the interest of the legislator, no less than that of a military chief, to know the true state of the forces under his command. To shun the examination of a weak point, because the appearance of this weak part will not yield satisfaction, would be pusillanimity. But if the weakness of the religious bond in an oath has been thus laid open, it is the fault of the professors of religion: the abuse which they have made of it by lavishing it without measure, has robbed it of the efficacy which it possessed of itself, separated from the sanction of honour.
The force of an oath is necessarily weakened when it turns upon matters of belief, upon opinions: Why? because it is impossible to detect the perjury, and also because human reason, always fluctuating, always subject to variation, cannot pledge itself for the future. Can I be certain that my belief of to-day will remain the same ten years hence? All such oaths are a monopoly bestowed upon men with consciences of little scrupulosity, in opposition to those who possess consciences of more sensibility.
Oaths are degraded when they regard trifles, when they are employed upon occasions in which they will be violated by a kind of universal convention; and more especially when they are required in cases in which justice and humanity will make an excuse for, and almost a merit of, their violation.
The human mind, which always resists tyranny, confusedly perceives that God, on account of his perfections, cannot ratify frivolous or unjust laws. Indeed man, by imposing an oath, would exercise authority over God himself. Man ordains a punishment, and it is for the Supreme Judge to execute it: deny this position, and the religious force of an oath vanishes.
It is very astonishing that in England, among a nation otherwise prudent and religious, this great security has been almost destroyed by the trivial and indecent use which has been made of it.
To show to what an extent habit may deprave moral opinions in certain respects, I quote a passage extracted from Lord Kames, a judge of the Court of Session in Scotland, upon education:—*
“Custom-house oaths now-a-days go for nothing, not that the world grow more wicked, but because no person lays any stress upon them. The duty on French wine is the same in Scotland and in England. But as we cannot afford to pay this high duty, the permission underhand to pay Spanish duty for French wine, is found more beneficial to the revenue, than the rigour of the law. The oath, however, must be taken, that the wine we import is Spanish, to entitle us to the ease of the Spanish duty. Such oaths at first were highly criminal, because directly a fraud against the public: but now that the oath is only exacted for form sake, without any faith being intended to be given or received, it becomes very little different from saying in the way of civility, ‘I am, sir, your friend, or your obedient servant.’ And, in fact, we every day see merchants dealing in such oaths, whom no man scruples to rely upon in the most material affairs.”
Who would believe that this is the language of a moralist and a judge? The Quakers have raised their simple asseveration to the dignity of an oath;—a magistrate degrades an oath to the simple formula of a ceremony. The oath implies neither faith given, nor faith received. Why then require it? why take it? why this farce? Is religion, then, the last of objects? and if it be thus to be contemned, why should it be so dearly paid for? How great the absurdity of paying a religious establishment for preaching up the importance of an oath, and having judges and legislators who amuse themselves with destroying it!†
USES TO BE DRAWN FROM THE POWER OF INSTRUCTION.
Instruction does not form a separate head, but the above title is convenient as a centre, around which to collect sundry scattered ideas.
Government ought not to do every thing by force: by this it can only move the bodies of men; by its wisdom it extends its empire over their minds: when it commands, it gives its subjects a factitious interest in obedience; when it enlightens, it gives them an internal motive, which cannot be weakened. The best method of instruction is simply to publish facts; but it is sometimes proper to assist the public in forming its judgment upon those facts.
When we see government measures, which are excellent in themselves, fail from the opposition of an ignorant people, we at first feel irritated against the senseless multitude; but when we come to reflect—when we observe that this opposition might have been easily foreseen, and that the government, in proud exercise of authority, has taken no steps to prepare the minds of the people, to dissipate their prejudices, to conciliate their confidence,—our indignation is transferred from the ignorant and deceived people, to its disdainful and despotic leaders.
Experience has shown, contrary to general expectation, that newspapers are one of the best means of directing opinion—of quieting feverish movements—of causing the lies and artificial rumours, by which the enemies of the state may attempt to carry on their evil designs, to vanish. In these public papers, instruction may descend from the government to the people, or ascend from the people to the government: the greater the freedom allowed, the more correctly may a judgment be formed upon the course of opinion—with so much the greater certainty will it act.
Rightly to estimate their utility, it is necessary to refer to the times when public papers did not exist, and consider the scenes of imposture, both political and religious, which were played off with success in countries where the people could not read. The last of these grand impostors with a royal mantle, was Pugatcheff. Would it have been possible in our days to have supported this personage in France or in England? The cheat would have been discovered as soon as announced. These are crimes which are not attempted among enlightened nations—the facility of detecting impostors preventing their birth.
There are many other snares against which governments may guard the people by public instruction. How many are the frauds practised in commerce, in the arts, in the price and quality of goods, which it would be easy to cause to cease by unveiling them! How many dangerous remedies, or rather real poisons, are sold with impudence by empirics, as marvellous secrets, of which it would be easy to disabuse the minds of the most credulous, by publishing their composition!—How many mischievous opinions, how many dangerous or absurd errors, might be stopped in their birth, by enlightening the public! When the folly of animal magnetism, after having seduced the idle societies of Paris, began to spread throughout Europe, one report of the Academy of Sciences, by the force of truth alone, precipitated Mesmer into the crowd of despicable charlatans, and left him no other disciples than incurable fools, whose admiration served to complete his disgrace. Would you cure an ignorant and superstitious people? send into their towns and villages, in quality of missionaries, jugglers, workers of prodigies, who shall begin by astonishing the people, by producing the most singular phenomena, and shall finish by explaining them. The more we know of natural magic, the less shall we be the dupes of magicians. It were to be wished that, with certain precautions, the miracle of St. Januarius at Naples were repeated in all public places, and that it were made a toy for children.
The principal instruction which governments owe to the people, regards the knowledge of the laws. How can these be obeyed, if they are unknown? how can they be known, if they are not published in the simplest form—in such manner that each individual may find for himself what ought to regulate his conduct?
The legislator might influence public opinion by composing a code of political morality analogous to the code of laws, and divided, in the same manner, into a general and particular code. The most delicate questions relative to every profession might there be explained: he need not confine himself to cold lessons, but by mingling with them well chosen historical anecdotes, such a code might be made a manual of amusement for all ages.
To compose such codes would be, so to speak, to dictate the judgments which public opinion ought to pronounce upon the different questions of morals and politics. To these codes might, with the same intention, be added a collection of popular prejudices, with the considerations which might serve as their antidotes.
If ever sovereign power showed itself with dignity among men, it was in the Instructions which were published by Catherine II. for a code of laws. When this unique example is considered for a moment, and it is separated from the recollection of an ambitious government, it is impossible to see, without admiration, a woman descend from the car of victory for the purpose of civilizing so many semi-barbarous nations, and of presenting to them the noblest maxims of philosophy, sanctioned by the touch of the sceptre. Superior to the vanity of herself composing this work, she borrowed whatever was excellent from the writings of the sages of the time; but by adding to their works the sanction of her authority, she did more for them than they had done for her. She seemed to say to her subjects—“You owe me so much the more confidence, since I have called to my counsels the noblest geniuses of my time. I fear not thus to associate with me these masters of truth and virtue, since they will make me ashamed before the universe if I dare to disgrace them.” She was seen, animated with the same spirit, sharing with her courtiers the labours of legislation; and if she were often found in contradiction to herself, like Tiberius, who was fatigued with the servitude of the senate, and would have punished a movement of liberty, yet these solemn engagements, contracted in the face of the whole world, were as barriers which she had imposed upon her own power, and which she rarely ventured to break.
USE TO BE MADE OF THE POWER OF EDUCATION.
Education is only government acting by means of the domestic magistrate.
The analogies between a family and a kingdom are of a kind which are obvious at the first glance. The differences are less striking, but it is not less useful to indicate them:—
1. Domestic government may be more active, more vigilant, more occupied with details, than civil government. Without continued attention, families could not subsist.
Civil authority has nothing better to trust to than a reliance upon the prudence of individuals in the conduct of their personal interests. But the head of a family must continually supply the inexperience of those committed to his care.
It is here that censorship may be exercised; a policy which we have condemned in civil governments. Domestic government may keep, from those subject to it, knowledge which might become hurtful to them: it may watch over their connexions and their reading; it may accelerate or retard the progress of their knowledge, according to circumstances.
2. This continued exercise of power, which would be subject to so many abuses in a state, is much less subject to them in the interior of a family: indeed, the father or the mother have for their children a natural affection, much stronger than that of the civil magistrate for the persons who are subordinate to him. Indulgence is in them the most frequent movement in nature; severity is only the result of reflexion.
3. Domestic government may employ punishment in many circumstances, in which civil authority could not. The head of a family knows individuals; the legislator knows only the species. The one proceeds upon certainties, the other upon presumptions. A certain astronomer may perhaps be capable of solving the problem of the longitude: can the civil magistrate know this? ought he to direct him to solve it, and to punish him if he do not? But the private tutor may know if his pupil understand an elementary problem in geometry—that obstinacy has put on the mask of impotence. The tutor can scarcely be deceived; the magistrate necessarily would be so.
In the same manner, there are many vices which the public magistrate cannot repress, because it would require the establishment of offices of detection in every family. The private magistrate, having under his eyes, under his hands, those whom he is charged to conduct, may stop in their origin those vices which the laws can only punish in their last excess.
4. It is especially in the power of rewarding, that these two governments differ. All the wants, all the amusements of youth, may be clothed with a remuneratory character, according to the manner in which they are bestowed, upon certain conditions, after certain work is done. In the island of Minorca, the subsistence of the young boys is made dependent upon their skill with the bow. The honour of suffering in public was, among the Lacedemonians, one of the prizes for virtue among the youthful warriors. There is no government so rich as to do much by rewards: there is no father so poor as not to possess an inexhaustible store of them.
It is especially in youth, that season of lively and durable impressions, that the legislator ought to keep in view the directing of the course of the inclinations towards those things which are most conformable to the public interest.
In Russia, the young nobility have been seen engaged in the public service by means as powerful as they were well imagined. There have arisen, perhaps, fewer good effects as respects military spirit, than as respects civil life. They have been accustomed to order, to vigilance, to subordination. It has obliged them to leave their retreats, where they exercised a corrupting domination over slaves, and placed them upon a wider theatre, where they have met with equals and superiors. The necessity of association has given rise to the desire to please; the mingling of different conditions has diminished reciprocal prejudices; and the pride of birth has been obliged to bow before the gradations of service. An unlimited despotism, as that of Russia was, could not fail to gain by being converted into a military government, in which authority has its limits.
Hence, in the given circumstances of that empire, it was difficult to discover a plan of general education which would answer more useful objects.
But in regarding education as an indirect mode of preventing offences, it requires an essential reform. The most neglected class must become the principal object of care. The less parents are able to discharge this duty, the more necessary is it for government to fulfil it. It ought not only to watch over orphans left in indigence, but also over the children whose parents no longer deserve the confidence of the law with regard to this important charge—over those who have already committed crimes, or who, destitute of protectors and resources, are given up to all the seduction of misery. These classes, absolutely neglected in most states, become the hotbeds of crime.
A man of rare benevolence, Le Chevalier Paulet, had formed an establishment at Paris for more than two hundred children, whom he took from among the most indigent class among the beggars. Every thing turned upon four principles:—To offer to the pupils many objects of study and labour, and allow the greatest possible latitude to their tastes;—to employ them in reciprocal instruction, by presenting to the pupil the honour of becoming master in his turn, as the greatest recompense for his progress;—to entrust all the domestic service to them, in order to unite the double advantage of their instruction and economy;—to govern them by themselves, and to place each one under the inspection of one older, in such manner as to render them securities for each other. In this establishment, every thing wore the appearance of liberty and happiness; there were no other punishments than forced idleness, and a change of dress.* The more advanced pupils were as interested in its success as its founder, and every thing advanced towards perfection, when the revolution overwhelmed this little colony amid its public disasters.
Greater extent might be given to institutions of this kind, and they might be rendered less expensive, either by multiplying the number of workmen in them, or by keeping the pupils until the age of eighteen or twenty-one, that they might have time to pay for the expense of their education, and to contribute to that of those who were younger.
Schools upon this plan, instead of costing the state any thing, might become lucrative enterprises. But it would be necessary to interest the pupils themselves in their labour, by paying them nearly the same as free labourers, and by forming for them a saving fund, to be given them when they leave the establishment.
GENERAL PRECAUTIONS AGAINST THE ABUSE OF AUTHORITY.
I proceed to certain means that governments may employ for the prevention of the abuse of authority on the part of those to whom they confide a portion of their power.
Constitutional law has its direct and its indirect legislation. Its direct legislation consists in the establishment of offices among which all political power is divided; this is not considered in this work. Its indirect legislation consists in general precautions, which have for their object the prevention of the misconduct, the incapacity, or malversation of those who administer these offices, either in chief or in subordination.
A complete enumeration of these indirect methods will not be attempted. It is here only intended to direct attention towards this object, and perhaps to lessen the enthusiasm of certain political writers, who having caught a glimpse of one or other of these methods, have flattered themselves that they have established a science of which they have not even drawn the outline.
Divide Power into different Branches.
Every division of power is a refinement suggested by experience. The most natural plan, that which first presents itself, is that which places power altogether in the hands of a single individual. Command on the one side, obedience on the other, is a species of contract, the terms of which are easily arranged when the governor has no associate. Among all the nations of the east, the frame of government has preserved this primitive structure. The monarchial power descends without division from stage to stage, from the highest to the lowest, from the Great Mogul to the simple Havildar.
When the king of Siam heard the Dutch ambassador speak of an aristocratic government, he laughed at the idea as an absurdity.
This principal method is only indicated here: to examine into how many branches the power of government may be divided, and which of all the possible divisions deserves to be preferred, would be to write a treatise upon a political constitution. I only observe that this division ought not to form separate and independent powers: this would introduce anarchy into a state. An authority must be recognised, superior to all others, which receives no law, but only gives it, and which remains master even of the rules themselves which it imposes upon its manner of acting.
Distribute the particular Branches of Power, each among different copartners—Advantages and Disadvantages of this policy.
In the provinces of Russia, before the regulations of Catherine II., all the different branches of power, military, fiscal, judicial, were placed in a single body, a single council. So far, the constitution of these subordinate governments sufficiently resembled the form of oriental despotism; but the power of the governor was a little limited by the powers of the council; and in this respect the form approached an aristocracy. At present, the judicial power is separated into many branches, and each branch is shared between many judges, who exercise their functions conjointly. A law, of the nature of the habeas corpus in England, has been established, for the protection of individuals against arbitrary power, and the governor has no more right to injure than a governor of Jamaica or Barbadoes.
The advantages of this division are principally these:—
1. It diminishes the danger of precipitation.
2. It diminishes the danger of ignorance.
3. It diminishes the danger from want of probity.
This last advantage can only be the constant result when the number of copartners is large; that is to say, when it is such that it would be difficult to separate the interests of the majority from the interests of the body of the people.
The division of powers has also its disadvantages, because it causes delays and foments quarrels, which may produce the dissolution of the government. It is possible to obviate the evil of these delays, by graduating the division according as the functions to which it is applied admit of more or less of deliberation. The legislative power and the military power form, in this respect, the two extremes, the first admits the greatest deliberation, and the second requires the greatest celerity. Whilst, as to the dissolution of the government, it is only an evil on one or the other of these two suppositions:—1st, That the new government is worse than the old; 2d, That the passage from the one to the other is marked by calamities and civil wars.
The greatest danger in plurality, either in a tribunal or an administrative council, is, that it diminishes responsibility in many ways. A numerous body may reckon upon a kind of deference on the part of the public, and may allow itself to perpetrate injuries which a single person would not dare to do. In a confederation of many persons, the single individuals may throw the odium of a measure upon the others: it is done by all, it is acknowledged by none. Does public censure rise against them? the more numerous the body, the more it is fortified against external opinion; the more it tends to form a kingdom within a kingdom—a little public, having a peculiar spirit, and which protects by its applause those of its members who have incurred general disgrace.
Unity, in all cases in which it is possible, that is, in all cases which do not require the combined knowledge and wills of many, as in a legislative body—unity, I say, is desirable, because it makes the whole responsibility, whether moral or political, to rest upon a single head. It divides with no one the honour of its actions; it bears, at the same time, the whole weight of the blame; it sees itself set against all, with no other support than integrity of conduct, no other defence than general esteem. When the individual is not honest from inclination, he becomes so in opposition to himself, in virtue of the position in which his interest is inseparable from his duty.
Besides, unity in the subordinate person employed, is a certain means for enabling the sovereign to discover, in a short time, the real capacity of individuals. A false and limited mind may hide itself for a long time in a numerous company; but if it act alone upon a public theatre, its insufficiency is soon unmasked. Men of mediocrity or inefficiency, always ready to seek for places where they may shelter themselves under the merit of others, will be afraid to expose themselves in a dangerous career, in which they will be reduced to their own value.
But it is possible to unite, in certain cases, the advantages which result from combination, and those which necessarily belong to the responsibility of an individual.
In subordinate councils, there is always an individual who presides, and upon whom the principal reliance is placed. Associates are given to him, that he may profit by their advice, and that there may be witnesses against him when he neglects his duty. But it is not necessary, for the accomplishment of this object, that they should be his equals in power, nor that they should have a right of voting; all that is necessary is, that the chief should be obliged to communicate to them all that he does, and that each one should make a declaration in writing respecting each of his acts, testifying his approbation or blame.—Such communication, in ordinary cases, ought to be made before an order is given; but in those which demand particular celerity, it would be sufficient if made immediately after. This arrangement could not fail in general to obviate the danger of disscusions and delay.*
Place the power of Displacing in other hands than the power of Appointing.
This idea is borrowed from an ingenious pamphlet, published in America in 1778* by a deputy of the Convention, charged with examining the form of government proposed for the State of Massachusetts.
The pride of man is interested in not condemning his own choice. Independently of all affection, a superior will be less disposed to listen to complaints against one of his own nominees, than he would be against an indifferent person, and will have a prejudice arising from self-love in his favour. This consideration serves in part to explain those abuses of power so common in monarchies, when a subaltern is charged with great authority, for which he has only to render an account to the same individual who appointed him to his office.
In popular elections, the part that each individual has in the nomination of a magistrate is so small, that this kind of illusion hardly exists.
In England, the choice of the ministers belongs to the king; but the parliament can effectively displace them, by forming a majority against them. This, however, is only an indirect application of this principle.
Suffer not Governors to remain long in the same Districts.
This principle particularly applies to considerable governments, in distant provinces, especially when separated from the principal body of the empire.
A governor armed with great power may, if leisure be given him, seek to establish his independence. The longer he remains in place, the more he may strengthen himself, by creating a party, or by uniting himself with a previously existing party. From oppression towards some, and partiality for others, though he may have no party, he may render himself culpable by a thousand abuses of authority, without any one daring or seeking to complain to the sovereign. The duration of his power gives birth to hopes or fears, which are equally favourable to him. He makes some his creatures, who regard him as the sole distributor of favours; whilst those who suffer, fear lest they should suffer more, if they offend a chief whom they have no hope to see changed for many years.
This will be true, especially with regard to offences which are more hurtful to the state than to individuals.
The disadvantage of rapid changes is, that it removes a man from his employment when he has acquired knowledge and experience as to its business. New men are liable to err through ignorance. This inconvenience will be palliated by the institution of a subordinate and permanent council, which would continue the progress and routine of affairs. What you gain by this means, is the diminution of a power that may be turned against you: what you risk, is the diminution of the degree of knowledge. There is no equality between these two dangers, when revolt is apprehended.
The arrangement ought to be permanent, to avoid giving umbrage to individuals. It is proper to accustom the minds of men to regard the change as fixed and necessary at determinate periods. If it take place only in certain cases, it may serve to provoke the evil it is destined to prevent.
The danger of revolt on the part of governors, only exists in feeble and ill-constituted governments. In the Roman empire, from the time of Cæsar to Augustus, nothing else is seen but governors and generals raising the standard of independence. It was not that this means of which we speak was neglected: changes were frequent: but either they knew not how to make a good use of this preservative, or they wanted vigilance and firmness, or, from other causes, they knew not how to hinder the frequency of revolt.
The want of a permanent arrangement of this nature is the most evident cause of the continual revolts to which the Turkish empire is subject, and nothing more completely proves the stupidity of this barbarous court.
Among the European governments which have stood in need of this policy, may be mentioned Spain in her American colonies, and England in the East Indies.
In the better civilized Christian states, nothing is more uncommon than the revolt of a governor. That of prince Gagarin, the governor of Siberia, under Peter I., is, I believe, the only example which can be cited in the last two centuries; and this happened in an empire which has not even yet lost its Asiatic character. The revolutions which have burst forth, have owed their origin to a more powerful and more reputable principle—the opinions, the sentiments of the people, the love of liberty.
Renew the Governing Body by Rotation.
The reasons for not allowing a governor to remain long in office, all apply, with still more force, to a council or a body of directors. Render them permanent: if they agree among themselves, with regard to the generality of their measures, it is probable that, among these measures, there are many whose object is to serve themselves and their friends, at the expense even of the community which has confided its interests to them. If they divide, and are afterwards reconciled, it is highly probable that the price of their reunion will still be at the expense of the community. But, on the contrary, if you remove a certain number at a time, and there are abuses, you have a chance of seeing them reformed by the new-comers, whom their associates will not have had time to corrupt. One portion ought always to be left, to continue the current of affairs without interruption: ought this reserved part to be greater or less than the part renewed? If it be greater, it is to be feared that the ancient system of corruption will maintain itself in vigour; if it be less, it is to be feared that a good system of administration may be overturned by capricious innovations; whichever it be, the simple right of removal will scarcely answer the end, especially if the power of replacing belongs to the body itself. This right should never be exercised but upon extraordinary occasions.
Those who have been removed, ought they to be ineligible for ever, or only for a time? If they are ineligible for a time only, it will happen in the end that they will be re-elected, and that the spirit of federation will run its course in the body. If they are ineligible for ever, the community will be deprived of the talents and experience of its most skilful servants. Upon the whole, this species of policy appears only an imperfect substitute for other means which will be hereafter mentioned, and especially for the publicity of all proceedings and all accounts.
This arrangement of rotation has been adopted in England, in the great commercial companies; and, for some years past, it has been introduced into the direction of the East India Company.
This political view is not the only one which has been taken of rotation. It has often been adopted for the simple object of effecting a more equal distribution of the privileges which belong to office.
The great political work of Harrington (Oceana) turns almost entirely upon a system of rotation among the members of government. A man of wit, who does not see the full extent of a science, seizes a single idea, developes it, applies it to all cases, and sees nothing beside it. It is thus that, in medicine, the less the extent of the art is perceived, the more are people inclined to believe in an elixir of life, a universal remedy, a marvellous secret. Classification is useful, for the purpose of directing the attention successively to all the means.
Admit Secret Informations.
Every one knows, that at Venice secret informations were received. Boxes were placed in different situations about the palace of St. Mark, whose contents were regularly examined by the inquisitors of state. According to these anonymous accusations, it is pretended that certain persons have been seized, imprisoned, sent into exile, and even punished with death, without any ulterior proof. If this were true, there was nothing more salutary and more reasonable than the first part of the institution—nothing more pernicious and abominable than the second. The arbitrary tribunal of the inquisitors has been a reasonable ground of reproach to the Venetian government, which must have been in other respects wise, since it maintained itself for so long a period in a state of prosperity and tranquillity.
It is a great evil when a good institution has been connected with a bad one: all eyes are not able to use the prism which separates them. In what consists the evil of receiving secret informations, even though anonymous in the first instance? Without doubt, it would not be right to hurt a hair upon a man’s head upon a secret information, nor to give the slightest uneasiness to an individual; but, with this restriction, why should the advantage which may result from them be lost? The magistrate considers if the object denounced deserve his attention: if it do not deserve it, he disregards the information; in the contrary case, he directs the informer personally to appear. After examining the facts, if he find him in error, he dismisses him, praising his good intentions, and concealing his name; if he have made a malicious and perfidious accusation, his name and accusation ought to be communicated to the party accused. But if his accusation has foundation, judicial proceedings commence, and the informer is obliged to appear and give his depositions in public.
Is it asked, upon what principle an institution of this kind may be advantageous? Precisely upon the same principle that votes are collected by ballot. In the course of the procedure, the defendant ought certainly to be informed who the witnesses are who depose against him; but where is the necessity that he should know them before the process commences? In this last case, a witness who may have any thing to fear from a delinquent, would not expose himself to a certain inconvenience, for the chance of rendering a doubtful service to the public. It is hence that offences remain so frequently unpunished, because individuals will not make personal enemies to themselves, without being sure of serving the public.
This means has been considered under the head of abuses of authority, because it is in opposition to official persons that its efficacy is most marked; seeing that in this case, the power of the supposed delinquent is one more weight in the scale of dissuasive motives. In this kind of case, the superior having received a warning which puts him upon his guard, may pass by the first offence, and discover the guilty party in the commission of a second.
The resolution to receive secret and even anonymous informations, would be good for nothing, unless publicly known: but once known, the dread of these informations will soon render the occasion of their occurrence most rare, and thereby diminish their number. And whom will this fear affect? only the guilty, and those who intend to become so; for with publicity of procedure, the innocent cannot be endangered, and malice will be confounded and punished.
Introduce the Lot, in requests addressed to the Sovereign.
When informations reach the Minister only, they may have their use; but to secure their utility, they ought to come to the knowledge of the Sovereign.
Frederick the Great received directly the letters of the lowest of his subjects, and often wrote the answer to them himself. This fact would be incredible, if it were not well attested.
It must not be concluded from this example, that the same thing could be done under all governments.
In England, every one has liberty to present a petition to the King; but the destination of these petitions, delivered at the same moment to a gentleman of the chamber, is proverbial: they furnish curl papers for the maids of honour. It may be believed after this, that such petitions are not frequently presented; but they also are not very necessary in a country in which the subject is protected by the laws, which do not depend for their execution upon the sovereign. There are other means for the private man to obtain information; there are other channels of information for the prince.
It is in absolute monarchies that it is essential to keep a constant communication open between the subject and the monarch. It is necessary for the subject, that he may be sure of protection; it is necessary for the monarch, that he may be sure of being free.
Though the people may be called canaille, populace, or what you will, the prince who refuses to listen to the lowest individual of this populace, very far from increasing his power by so doing, in reality diminishes it. From this moment, he loses the faculty of governing by himself, and becomes an instrument in the hands of those whom he calls his servants. He may imagine that he does what he likes—that he determines for himself: but, in fact, it is they who determine for him; for to determine all the causes which a man has for action, is to determine all his actions. He who can neither see nor hear, but as it pleases those who surround him, is subject to all the impulses which they may choose to give him.
To place an unlimited confidence in ministers, is to place an unlimited confidence in the hands of those who have the greatest interest in abusing it, and the greatest facility for so doing.
Whilst, as to a minister himself, the more upright he is, the less need will he have of such confidence: and it may be affirmed without a paradox, that the more he deserves it, the less will he desire to possess it.
The sovereign who cannot read all these petitions, without sacrificing precious time, may have recourse to different expedients for relieving himself from dependence upon those in whom he confides, and assuring himself that they do not withdraw the most important from him. He may take certain ones at hazard; he may have them distributed under different heads, and have them presented without selection. The details of such an arrangement are neither sufficiently important, nor sufficiently difficult to require a particular development. It is sufficient to have suggested the idea.
Liberty of the Press.
Listen to all counsel: you may find yourself the better for it; you run no risk of being the worse. This is what good sense says. To establish the liberty of the press, is to admit the counsels of every body: it is true, that on many occasions the public judgment is not listened to before a measure is determined upon, but after it is executed. This judgment, however, may always be useful, either with reference to measures of legislation which may be reformed, or with respect to those of administration which may have to be repeated. The best advice given to a minister alone may be lost; but good advice given to the public, if it serve not upon one occasion, may serve upon another; if it be not employed to-day, it may be employed in future; if it be not offered in a suitable form, it may receive from the hands of another those ornaments which shall make it relished. Instruction is a seed, which, so to speak, must be tried in a diversity of soils, and cultivated with patience, because its fruits are often of slow growth.
This measure is far preferable to that of petitions, as a means of emancipating the sovereign. Whatever may be his discernment in the choice of his ministers, he can only take them from a small number of candidates, whom the chances of birth or fortune present to him. He may therefore reasonably think that there are other men more enlightened than them; and the wider he extends his faculty of knowing and hearing, the more he extends his power and his liberty.
But insolence and drollery may mingle themselves with the manner of giving this advice. In place of confining an examination to measures, its criticisms may extend to persons. And, indeed, how difficult is it to keep these two operations properly separated! How can a measure be censured, without attacking, in some degree, either the judgment or the probity of its author? There is the rock. Hence it is, that the liberty of the press is as rare as its advantages are manifest. It has ranged against it all the fears of self-love. Joseph II. and Frederick II., however, had the magnanimity to establish it. It exists in Sweden; it exists in England: it might exist everywhere, with some modifications, which would prevent its greatest abuses.
If, owing to the habits of the government, or from particular circumstances, the sovereign cannot permit the examination of the acts of his administration, he ought at least to permit the examination of the laws: though he claim the privilege of infallibility for himself, he need not claim it for his predecessors. If he be so jealous of the supreme power as to make every thing respected which has been touched by the sceptre, he might leave open to discussion mere science, principles of right procedure, and subordinate administration.
If the liberty of the press may have its inconveniences, arising from pamphlets and loose sheets being spread among the public, addressed to the ignorant as well as to the enlightened part of a nation, the same reason need not be applied to serious works of greater length—to books which can only have a certain class of readers, and which cannot produce any immediate effect, but which allow time to prepare an antidote.
Under the ancient French regime, it was sufficient that a book of moral science had been printed at Paris, to raise an unfavourable prejudice against it. The instructions of the Empress of Russia to the assembly of deputies were prohibited in France: the style and the sentiments were too popular to be tolerated under the French monarchy.
It is true, that in France, as elsewhere, negligence and inconsistency palliated the evils of despotism. A strange title served as a passport to genius. The rigour of the censorship serves only to drive the trade in books to other nations, and to render the satire which it seeks to suppress only the more severe.
Publish the Reasons and the Facts which serve as the Foundation for the Laws and other Acts of Government.
This is a necessary link in the chain of a generous and magnanimous policy, and an indispensable accompaniment to the liberty of the press. The one of these institutions is due to the people; the other is due to the government. If the government disdain to inform the nation of its motives upon important occasions, it thereby announces that it depends upon force, and counts the opinion of its subjects for nothing.
The partisan of arbitrary power does not think thus: he does not wish that the people should be enlightened, and he despises them because they are not enlightened. You are not able to judge, he says, because you are ignorant; and you shall always be kept ignorant, that you may not be capable of judging. Such is the eternal circle in which he entrenches himself. What is the consequence of this vulgar policy? General discontent is formed and increased by degrees, sometimes founded upon false and exaggerated imputations, which are believed from want of discussion and examination. A minister complains of the injustice of the public, without thinking that he has not given them the means of being just, and that the false interpretations given of his conduct are a necessary consequence of the mystery with which it is covered. There are only two methods of acting with men, if it be desired to be systematic and consistent: absolute secresy, or entire freedom—completely to exclude the people from the knowledge of affairs, or to give them the greatest degree of knowledge possible—to prevent their forming any judgment, or to put them in a condition to form the most enlightened judgment—to treat them as children, or to treat them as men: a choice must be made between these two methods.
The first of these plans has been followed by the priests of ancient Egypt, by the Bramins in Indostan, by the Jesuits in Paraguay; the second is practically established in England; it is established by law in the United States of America only. The greater number of European governments fluctuate continually between the one and the other system, without having the courage to attach themselves exclusively to either, and never cease placing themselves in contradiction to themselves, by the desire of having industrious and enlightened subjects, and the dread of encouraging a spirit of examination and discussion.
In many branches of administration it would be useless—it might be dangerous, to publish beforehand the reasons which determine measures. It is requisite only to distinguish the cases in which it is necessary to enlighten public opinion, to prevent its going astray; but in matters of legislation, this principle is always applicable. It may be laid down as a general rule, that no law ought ever to be made without a reason either expressly assigned or tacitly understood. For what is a good law, if it be not a law for which good reasons can be given? There must always be a reason, good or bad, for making a law, since there is no effect without a cause. But oblige a minister to assign his reasons, and he will be ashamed not to have good ones: he will be ashamed to offer you base coin, when he is required to present you with a touchstone to ascertain its quality.
It is a means whereby a sovereign may reign after his death. If the reasons for his laws are good, he gives them support that they can never lose. His successors will be obliged to maintain them from a sentiment of honour. Thus the more happiness he has bestowed upon his people, the more happiness will he secure to his posterity.
Exclude Arbitrary Power.
“Clotaire made a law,” says Montesquieu, “that an accused person should not be condemned without being heard: this proves that a contrary practice prevailed in particular cases, or among a barbarous people.”—Esprit des Lois, chap. xii.
Montesquieu dared not speak out. Could he have written this passage without thinking of lettres de cachet and the administration of the police, such as it was in his time? A lettre de cachet might be defined to be—an order to punish without any proof for a fact against which there is no law.
It was in France and at Venice that this abuse reigned with the greatest violence. These two governments, in other respects moderate, have calumniated themselves by this foolery. They exposed themselves to imputations often false, and to the reaction of terror; for these precautions themselves, by inspiring alarm, created danger. Behave yourself well, it is said, and the government will not be your enemy. But how may I assure myself of this? I am hated by the minister, or by his valet, or by his valet’s valet. If I am not hated to-day, I may be to-morrow, or some other day—and I may be taken for another person; it is not upon my conduct that I depend, but upon the opinion of men more powerful than me. Under Louis XV., lettres de cachet were an article of commerce. If this could happen under a government which passed for gentle, what would it be in countries where manners are less civilized?
In default of justice and humanity, it seems to me that the pride of governments ought to suffice for the abolition of these remains of barbarity.
Lettres de cachet may have been established under the veil of maxims of state: at the present day, this pretence has lost its magic. The first thought which presents itself to the mind is that of the incapacity and weakness of those who employ them. If you dared to hear that accused person, you would not close his mouth; if you keep him silent, it is because you fear him.*
Direct the Exercise of Power by Rules and Forms.
This is another head of police with regard to subordinate offices, no less applicable to absolute monarchies than to mixed governments. If the sovereign consider himself interested in remaining independent of the laws, he is not interested in communicating this same independence to all his agents.
The laws which limit subordinate officers in the exercise of their power, may be distinguished into two classes:—To the first belong those which limit the causes with regard to which they are permitted to exercise certain powers; to the second, those which determine the formalities with which they shall exercise them. These causes and these formalities ought to be all specifically enumerated in the body of the law: this being done, the subjects ought to be informed that these are the causes, and these the only causes, for which an attack can be legally made upon their security, their property, their honour. Hence the first law with which a great code ought to be begun, should be a general law of liberty—a law which should restrain delegated powers, and limit their exercise to certain particular occasions, for certain specific causes.
Such was the intention of Magna Charta, and such would have been its effect, without that unfortunate indeterminate expression, “Lex terræ,” &c.; an imaginary law, which spreads uncertainty over the whole; because, by unceasingly referring to the custom of ancient times, examples and authorities have been sought among the abuses which it was intended to prevent.
Establish the Right of Association; that is to say, of Assemblies of the Citizens for the expression of their sentiments and their wishes upon the public measures of Government.
Among the rights that a nation ought to reserve to itself, when it institutes a government, this is the principal, as being the foundation of every other. However, it is almost useless expressly to mention it here: the people who possess it, need not to be told to preserve it; and those who do not possess it, have little hope of obtaining it; for what is there which can induce their chiefs to give it them?
At first sight, this right of association would appear incompatible with government; and I allow, that to consider the right as a means of repressing government would be absurd and contradictory: but the case is very different. If the slightest act of violence be committed by one or many of the members of the association, punish them as if it had been committed by any other individual. If you find that you want the power to punish them, it is a proof that the association has made such progress as it could not have made without just cause; indeed, that it is not an evil, or that it is a necessary evil. I suppose that the government possess a public force, an organized authority, everywhere. If, then, these associations have become so strong as to intimidate it in the midst of all its regular sources of power—if it have not formed associations on its own side, though it possess such superior means for establishing them, it is an infallible sign that the calm and reflecting judgment of the nation is in opposition to such government. This being settled, what reason can be offered for continuing in the same state—for not satisfying the public wish? I cannot find any. Without doubt, a nation, being composed of men, is not infallible: a nation, as well as its chiefs, may be deceived as to its true interests; nothing is more certain: but if the great majority of a nation be found on one side, and its government on the other, may it not be presumed, in the first instance, that this general discontent is founded upon real grievances?
Far from being causes of insurrection, I consider associations as the most powerful means of preventing this evil. Insurrections are the convulsions of weakness, which finds strength in the moments of despair. They are the efforts of men who have not been permitted to express their feelings, or whose projects could not have succeeded, had they been known—of conspirators, who, being opposed to the general feelings of the people, can only succeed by surprise and violence. Those who frame them can therefore only hope for success by means of force; but those who can believe that the people are on their side—those who can flatter themselves with the hopes of triumph through the influence of public opinion,—why should they employ violence? why should they expose themselves to manifest danger without utility? I am therefore persuaded, that men who have full liberty of associating, and who can do so under the protection of the laws, will never have recourse to insurrection, except in those rare and unfortunate cases, in which rebellion is become necessary. Whether associations are permitted or prohibited, rebellions will never break out sooner.
The associations which were openly formed in Ireland, in 1780, produced no evil, but served rather to maintain tranquillity and security in the country; though this country, half civilized, was torn by every possible cause of civil war.
I even believe that associations might be permitted, and become one of the principal means of government, in the most absolute monarchies. These kinds of states are more tormented than others by revolts and risings; every thing is done by sudden movements: associations would prevent disorders. If the subjects of the Roman empire had been in the habit of association, the empire and the life of the emperor would not have been continually sold by auction by the prætorian guards.
Associations, however, cannot be permitted to slaves: too much injustice has been done them, not to afford reason to fear every evil from their ignorance or their resentment. It is not in the West Indies, it is not in Mexico, that the people may be armed and permitted to associate; but there are countries in Europe in which this strong and generous policy might be set up.
It must also be acknowledged, that there is a degree of ignorance which renders associations dangerous: this proves that ignorance is a great evil, and not that associations are not a great good. Besides, this measure itself may serve as an antidote against its ill effects: in proportion as an association gains in extent, being formed in security, all its bases are discovered; the public is enlightened; the government employs every means in disseminating the knowledge of facts, and dissipating errors; freedom and instruction join hand in hand; freedom facilitates the progress of knowledge, and the progress of knowledge represses the wanderings of freedom.
I know not how the establishment of this right can give uneasiness to the government. There is no one which does not fear the people, which does not consider it necessary to consult their wishes, and to accommodate itself to their opinions: the most despotic are the most timid. What sultan is so quiet, so secure in the exercise of his power, as the king of England? The janissaries and the populace make the seraglio tremble: in London, the voice of the people is heard in legitimate assemblies; in Constantinople, it speaks in outrages: in London, the people speak by petitions; at Constantinople, by fires.
The case of Poland may be presented as an objection, in which associations produced so many evils: but this is deceptive; the associations were produced by anarchy, and did not produce it. Besides, in speaking of this means as a restraint upon governments, an established government is supposed—a medicine, and not the daily food, is spoken of.
I observe again, that even in the states in which this right exists, circumstances may arise, in which it will be proper, not entirely to suspend, but to regulate its exercise. An absolute and inflexible rule is not requisite in this respect. We have seen, in the course of the last war, the British Parliament restraining the right of assembling; not allowing political unions, till the object had been publicly announced, and sanctioned by the magistrates, who possessed the power of dissolving them; and these restrictions taking place at the same time that the citizens were called upon to form military bodies for the defence of the state, and whilst the government announced the noblest confidence in the general spirit of the nation. When these restraints ceased, every thing remained in the same condition: it might have been supposed that the restrictive law continued. It was because a people, secure of its rights, enjoys them with moderation and tranquillity: if it abuse them, it is because it is doubtful of them: precipitation is the effect of fear.
MEASURES TO BE TAKEN AGAINST THE ILL EFFECTS OF AN OFFENCE ALREADY COMMITTED—CONCLUSION OF THE SUBJECT.
The general result of the principles which have been laid down in relation to penal legislation, present a happy prospect and well-founded hopes of reducing the number of crimes, and mitigating punishments. This subject at first only presents to the mind sombre images of suffering and terror; but in considering this class of evils, these doleful sentiments soon give place to gentle and consoling sentiments, when it is discovered that the heart of man has not within it any original and incurable perversity; that the multiplicity of offences arises only from errors in legislation, easy to be reformed; and that even the evil which results from them is capable of being repaired in many ways.
The great problem in penal legislation is—
1. To reduce as much as possible all the evil of offences to that which a pecuniary compensation will cure; 2. To throw the expense of this cure upon the authors of the evil, and, in their default, upon the public. What may be done in this respect goes far beyond what is imagined at the first glance.
The term cure is employed, the individual or community injured being considered under the character of an invalid, who has suffered from a crime. The comparison is just, and indicates the most suitable procedure, without mingling with them popular passions, and the antipathies which the ideas of crime are too apt to awaken among legislators.
There are three principal sources of crime: incontinence—enmity—rapacity.
The crimes to which incontinence gives birth, are scarcely of a nature to be cured by a pecuniary compensation: this remedy may be applied, in certain cases, to seduction, and even to conjugal infidelity; but it never cures that portion of the evil which consists in the attack upon the honour and peace of families.
It may be observed, that in opposition to other offences, whose evil effects are more surely arrested the more completely they are published, the offences of incontinence only become hurtful when made public. Thus a good citizen, who would esteem it a duty to publish an act of fraud, would take care to conceal a secret fault arising from love. To leave a fraud undetected, is to become an accomplice in its success. To publish, in open day, an unknown weakness, is to do an injury without compensation: since it lace-rates the sensibility of those who are held up to shame, and repairs nothing. I reckon among the establishments which do honour to the humanity of our age, the secret asylums for accouchements, and hospitals for foundlings, which have so often prevented the evil effects of despair, by covering with the shades of mystery the consequences of a transient wandering. The rigour which rises up against this indulgence is founded upon a false principle.
The crimes to which enmity gives birth are often such, that a compensation in money cannot be applied to them. Even this compensation, when it can be applied, is rarely complete: it cannot undo what is done; it cannot restore a limb which is lost; it cannot restore a son to his father, a father to his family: but it may act upon the condition of the party injured: it may furnish him with a lot of good, in consideration of a lot of evil; and in balancing the account of his prosperity, place an item upon the favourable side, to balance an item upon the disadvantageous side.
The most essential observation with respect to these offences is, that they are daily diminishing, from the progress of civilization. It is wonderful to observe, among the greater number of European states, how few crimes are produced by the angry passions so natural to man, and so violent in the infancy of society. How noble an object of emulation for those tardy governments, which have not yet attained this degree of police, and among whom the sword of justice has not yet vanquished the stilettoes of revenge!
But the inexhaustible source of crimes is rapacity. Here is an enemy always active, always ready to seize all advantages—against whom it is necessary to wage continual war. This war demands tactics, whose particular principles have been much misunderstood.
Be indulgent to this passion, so long as it confines itself to attacking you by peaceful means; attach yourself to taking away all the unjust profit that it makes; become severe with regard to it, in proportion as it carries on its enterprises openly—when it has recourse to threats and violence. Still, however, reserve means of additional severity, when it gives way to atrocities, such as murder and incendiarism. It is in the proper management of these gradations, that the art of penal legislation consists.
It must never be forgotten, that all penal police consists in a choice of evils. The wise administrator of punishments will always have the balance in his hands; and in his zeal for the exclusion of small offences, will not imprudently give birth to greater ones. Death is almost always a remedy which is not necessary, or which is inefficacious: it is not necessary with respect to those whom an inferior punishment may deter from crime—whom simple imprisonment can restrain from it: it is not efficacious with respect to those who precipitate themselves upon it, so to speak, as an asylum against despair. The policy of the legislator who punishes every thing with death, resembles the pusillanimity of the child who crushes the insect which he dares not look upon. But if the circumstances of society—if the frequency of a great crime, require the employment of this terrible punishment, dare, without aggravating the torments of death itself, to give to it a more formidable aspect than that of nature; surround it with mournful accessaries—the emblems of crime, and the pomp of tragic ceremonies.
Be hard, however, to be convinced of the necessity of putting any one to death. By avoiding it as a punishment, you will also prevent its occurrence as a crime. When a man is placed between two crimes, it is important to give him a sensible interest not to commit the greater. It is proper, in a word, to convert the assassin into a pickpocket; that is to say, to give him a reason for preferring the crime which can be repaired, to that which cannot be repaired.
Everything which can be repaired is nothing. Everything which may be compensated by a pecuniary forfeiture, is almost as non-existent as if it had never existed; for if the injured individual always receive an equivalent compensation, the alarm caused by the crime ceases entirely, or is reduced to its lowest term.
The desirable object is, that the funds for compensation on account of crimes should be drawn from the mass of delinquents themselves—either from the goods they have acquired, or from labour imposed on them. If this were the case, security would be the inseparable companion of innocence, and sorrow and anguish would only be the portion of the disturbers of the social order. Such is the point of perfection which should be aimed at, though there may be no hope of attaining it but by degrees, and by continued efforts. The goal is pointed out: the happiness of reaching it will be the reward of an enlightened and persevering administration.
During the insufficiency of this source, it is proper to draw compensation, either from the public treasure or private insurances.
The imperfection of our laws is very evident, under this point of view. Has a crime been committed? those who have suffered by it, either in their person or their fortune, are abandoned to their evil condition. The society which they have contributed to maintain, and which ought to protect them, owes them, however, an indemnity, when its protection has not been effectual.
When an individual has prosecuted a criminal at his own expense, even in his own cause, he is no less a defender of the state than he who fights against foreign enemies: the losses he experiences in defending the state ought to be compensated at the public expense.
But when an innocent person has suffered from an error of the tribunals—when he has been arrested, detained, rendered suspected, condemned to all the anxieties of a trial and a long captivity, it is not only on his own account, but on account of justice itself, that he ought to receive an indemnity. Instituted for the redress of wrongs, is it desirable that the wrongs they perpetrate should be without redress?
Governments have not provided for either of these indemnities. In England some voluntary associations have been formed to supply them. If the institution of assurance* be good in a single case, it is good in all, under the precautions requisite for the prevention of negligence and fraud.
The inconvenience of frauds is common to all funds, public and private. They may diminish the utility of assurances, without destroying it. Shall no fruit-trees be cultivated, because the crop may be destroyed by a thousand accidents? Banks of piety have succeeded in many countries. An establishment of this kind, formed in London in the middle of the past century, failed at its commencement, from the unfaithfulness of its directors; and this robbery has left a prejudice, which has hindered all other attempts of this kind. According to the same logic, it might be proved that ships are bad war machines, because the Royal George, whose port-holes were left open, sunk whilst at anchor.
Assurances against crimes might have two objects:—1. To create a fund for the indemnification of parties injured, in case the delinquent were unknown or insolvent; 2. To defray, in the first instance, the expenses of judicial prosecution; and might even be extended, in favour of the poor, to causes purely civil.
But the method of settling these indemnities would be foreign to the present subject: it has been treated of elsewhere. I confine myself here to an enunciation of the general result of this work: It is, That by good laws almost all crimes may be reduced to acts which may be repaired by a simple pecuniary compensation; and that, when this is the case, the evil arising from crimes may be made almost entirely to cease.
This result, simply announced, does not at first strike the imagination: it is necessary to meditate upon it, in order to perceive all its importance and solidity. The brilliant society of the world cannot be interested by a formula almost arithmetical: it is to statesmen that it is presented as a subject for consideration; and it belongs to them to judge of it.
The science, whose foundations we have explored, can only please those elevated minds with whom the public good is a passion. This is not a subversive and shuffling policy, which prides itself upon clandestine projects—which builds its glory upon misfortunes—which beholds the prosperity of one nation in the abasement of another, and mistakes the convulsions of government for the conceptions of genius. It has reference to the greatest interests of humanity—to the art of forming the manners and characters of nations—to the means of insuring the highest degree of security to individuals—and of deriving results equally advantageous from different forms of government. Such is the object of this noble and generous political science, which seeks only to be known—which desires nothing exclusive—and which knows no more certain method of perpetuating its benefits, than sharing them among all the great family of nations.
[* ]1. Power ab intra. 2. Power ab extra.
[† ]Muto linguam. De virginibus puerisque, sed non virginibus puerisve sermo est: et præterea alienus sermo non erubescit. Dixi adversus potestatem peccandi, quam ab intra nominavi, nullum dari remedium. En vero exceptionem circumcisio. Dicitur non apud Judæos solos fuisse in usu. Quænam igitur instituti ratio? Anne adversus venerem solitariam? Ita visum est, nescio cui: credo equidem Voltario. Ingeniosum sane fuisset excogitamentum: siquidem hoc modo, ut videtur, proclivitas saltem minuitur si non facultas tollitur. Adversus debilitatem remedium, sterilesque nuptias. Vitium magis perniciosum quam quæ multò sunt odiosiora: siquidem magis debilitat, et homo sibi semper præsens. Quidni huc pertineat Judeæ gentis spectata fæcunditas! sed nec vitium videtur nec remedium rude ævum aspere: faciliusque crediderim hodiernos attribuisse quam antiquos invenisse.
[‡ ]These customs are not cited as models, but only to show under what class of laws they should be ranged.
[* ]In Austria, a flayer is not allowed to sell meat, it being presumed that if the animal had been wholesome, it would not have come to his hands. Sonenfel’s Police of Vienna, 1777. A great number of police regulations may be referred to this head.
[† ]Knowledge, though commonly considered as distinct from power, is really a branch of it. It is a branch of power, whose seat is in the mind. Before a man can perform any act, he must know two things: the motives for doing it, and the means of doing it. These two kinds of knowledge may be distinguished into that of motives, and that of means: the first constitutes inclination, the second constitutes a part of power.
[* ]I always suppose that the damage of the crime is the same: for, in one point of view, cheating may prove worse; since a greater sum may be obtained by fraud than by highway robbery. For proof of the superiority of modern manners over those of ancient times, reference may be made to Hunter’s Essay on Population: for proof of their superiority over the Gothic ages, to Voltaire’s General History, Robertson’s Introduction to Charles V., Barrington’s Observations on the English Statutes, and the Treatise of Le Chevalier de Chastelleux on Public Happiness—a work well designed, but indifferently executed.
[* ]This distinction of the schoolmen is sufficiently complete: to the first class belong the pleasures of malevolence; to the second, all other pleasures.
[† ]The celebrated Hogarth painted two pictures, called Beer Street and Gin Street. In the first, every thing breathes an air of gaiety and health; in the second, of misery and disease. This admirable artist wished to instruct by his pencil, and had reflected more upon morals than many who give themselves out as professors of this science.
[‡ ]“I have heard M. d’Argenson say, that when he was lieutenant of police, there were more irregularities and debaucheries committed in Paris during the Easter fortnight, when the theatres were shut, than during the four months of the season during which they were open.”—Memoirs de Pollnitz, tom. iii.
[* ]Written in 1782.
[* ]Written 1782. This is not true at this time, 1820. It remains to be seen if this severity be beneficial to good manners.—Dumont.
[* ]In the Adventures of a Guinea, a wager is made between the wife of a clergyman, and the wife of a minister of state, that the clergyman would not be made a bishop. It may be guessed which of the two wins the bet.
[* ]See in Juvenal, his allusion to the punishment of parricides:—
[* ]At the commencement of the reigns of the kings of Poland, there existed a very singular custom:—
[* ]The most ancient work which I know upon this subject, is entitled Clavell’s Recantation. The second edition is dated 1628. It is in verse. Clavell was a man of family, who became a highwayman: he obtained a pardon. It is said in the title-page, that the book was published at the express order of the king (Charles I.) One of the more modern is entitled, A View of Society and Manners in High and Low Life, by Parker.
[* ]Chocolate, tea, hops, letters, newspapers, cards, almanacks, hackney-coaches, &c.
[* ]The following is a sketch of the general plan. The whole name might contain the following parts:—1. The family name, essential for the identification of the races; 2. A single baptismal name or pre-nomen; 3. The place and the date of birth. This compound denomination should be repeated in all legal affairs. The method of abbreviating it for ordinary use, would depend upon the genius of the language.
[* ]I know by experience, says Sir John Fielding, that for one information brought before me from the desire of reward, I have received ten which had no other motive than the public good. P. 412.
[* ]In the Code Theresa, under each head of offences, there is a head of indicia. These indications are distinguished into two classes: indicia ad capturam; indicia ad torturam: those which suffice to justify an arrest; those which suffice to justify the torture—a practice which was not yet abolished.
[† ]Every active medicine, taken in a certain dose, is a poison.
[‡ ]A soldier, in a review, puts a ball into his musket; it is discovered before the order to fire is given: this may be regarded as a preparatory act: if he had fired at a person or an assemblage of persons, this would have been an attempt—if he had killed any one, he would have committed the crime known under the name of homicide.
[* ]The following anecdote is related on good authority. There was a riot at Madrid, under Charles III., occasioned by the prohibition against wearing round hats. This prohibition was not a matter of caprice. The large and slouched hats prohibited, served, when a cloak was thrown over the shoulders, completely to conceal the person. Under this disguise, a thief or an assassin could strike his blow, and never be recognised. The prohibition was therefore proper, but no preparation had been made for it: it wounded a general custom—it appeared to be an attack upon liberty. The people assembled round the palace; the guards wished to repulse them; the tumult became violent; blood was shed; the court was intimidated, and left Madrid, and the Minister was obliged to give way. A short time after this triumph of the round hats, the Count d’Aranda being made Minister, he enjoined all the executioners, in all the towns of Spain, to wear round hats. In a fortnight, no more round hats were seen. This is an example of indirect legislation, which may be referred to this head.
[* ]Care ought to be taken not to encourage that spirit of foundations and alms, which has too frequently arisen from the vulgar notions of Christianity. They increase the number of the poor, more than they relieve them. Such are the convents of the monks, and their daily distributions in Spain and Italy, which create a numerous class of beggars, and are equivalent to a law, whereby industry is taxed in favour of idleness.
[* ]Loose Hints on Education, p. 362.
[† ]By an Act of William IV., the Treasury are authorized to dispense with all oaths which they do not consider necessary in the collection of the revenue, and to substitute declarations as to the acts in their stead.
[* ]The two punishments employed were called, one the little idleness, the other the great idleness. Nothing could be more ingenious than thus giving to punishment itself the name and character of a vice: the salutary association of ideas which results from it, is immediately perceived.
[* ]This is the plan adopted by the East India Company. Formerly it was the Council of Madras or Calcutta which decided every thing by a plurality of votes. At present, the Governor ought to consult the Council, and each member ought to give his opinion in writing; but they have no vote—they are simply advisers: the Governor decides every thing in the last resort. Consequently, it is not sufficient for him to gain a majority in the Council, to elude the responsibility which rests altogether upon him.
[* ]Reprinted in Almon’s Remembrancer, No. 84, p. 223.
[* ]This does not extend to extraordinary circumstances, similar to those under which the habeas corpus act has been suspended in England, with known precautions.
[* ]Assurance is good, because the assurer is prepared to sustain the loss, and considers the premium he has received as the equivalent for the risk which he runs.